Opinion
00 Civ. 8927 (WK)
July 9, 2001
Corneal Cordon, petitioner, 97 A. 5114, Green Haven Correctional Facility, Drawer B, Stormville, N.Y. 12207.
Nicola N. Grey, Assistant Attorney General of the State of New York, 120 Broadway, New York, N.Y. 10271, Attorney for Respondent.
MEMORANDUM ORDER
Corneal Cordon ("petitioner" or "Cordon") petitions this court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and he seeks appointment of counsel for this proceeding. Petitioner, an inmate at Green Haven Correctional Facility, claims that (1) he was denied his federal due process right to a fair trial by admission of expert testimony after the trial court had expressly forbid such testimony; (2) he was denied his right to present a defense when the court rejected his request to present the videotaped grand jury testimony of a witness who had died before trial; and (3) he was denied his due process right to a fair trial by the prosecutor's inflammatory summation.
For the reasons set forth below, we deny the motion for appointment of counsel and the petition.
I. PROCEDURAL AND FACTUAL BACKGROUND
A. Procedural History
Petitioner's first trial ended with a hung jury. Petitioner's second jury trial also ended in a mistrial, after the court informed the jury that the victim had died, even though the death was unrelated to the crime charged.
After petitioner's third trial, a New York State Supreme Court jury convicted Cordon on July 14, 1997 of two counts of Burglary in the First Degree, Robbery in the First Degree, Reckless Endangerment in the First Degree, and Burglary in the Second Degree. At sentencing, petitioner made a motion to set aside the verdict, based on the same grounds raised in the instant petition. The court denied the motion and sentenced Cordon, as a persistent violent felony offender, to five concurrent, indeterminate terms of twenty-five years to life.
Petitioner filed a timely appeal to the New York State Supreme Court, Appellate Division, First Department, which affirmed the conviction. Petitioner then unsuccessfully sought leave to appeal to the New York State Court of Appeals. People v. Cordon (1st Dep't 1999) 261 A.D.2d 278, 691 N.Y.S.2d 390, leave denied, 93 N.Y.2d 1016 (1999). This exhausted petitioner's state court remedies.
Petitioner asserts the same constitutional deprivations in the instant petition as in his state court appeal.
B. Factual Background
The evidence introduced at trial established the following facts:
Late one night, petitioner rang the doorbell of Richard Trudeau's Manhattan apartment. Trudeau, who was 76 years old, had previously lent small sums of money to petitioner, who had performed odd jobs for the building's owner, Michael Johnson. Earlier that day, Johnson, had ordered petitioner off the property after witnessing Trudeau refuse to give petitioner another loan.
Trudeau opened the door for petitioner, who grabbed Trudeau and held a knife to his throat. Petitioner ransacked Trudeau's apartment, taking $900 in food stamps, $140 in cash, a radio, and Trudeau's prescription medications. Petitioner left Trudeau on the floor, weakened, and without his medicine or access to a telephone. Petitioner returned to Trudeau's apartment on the following day, when he returned the radio and took a small, undetermined sum of money from the kitchen table.
For the next five days, Trudeau remained in bed, unable to call for help or leave the apartment. Johnson became concerned that he had not seen Trudeau and looked through the apartment window. Trudeau was on the floor, holding a sign that read, "Help, call the police." Officer Hector Vargas responded to the scene, where Trudeau told him that petitioner had attacked him. Petitioner was lured back to the building, where Vargas arrested him and Trudeau identified him as his assailant. Petitioner possessed none of the items removed from Trudeau's apartment. One week after his arrest, petitioner called Johnson from jail. During this phone call, petitioner told Johnson that he had not meant to hurt Trudeau.
C. Petitioner's Trial
Petitioner claims a series of trial court errors contributed to a deprivation of his constitutionally guaranteed due process right. Petitioner's first contention is that his due process right to a fair trial was violated when the prosecutor presented the expert testimony of the victim's doctor, after the trial court had ruled against the admission of such testimony.
At petitioner's first trial, the People introduced medical records but did not present any expert witnesses in conjunction with that evidence. The People's witness list at the third trial also did not include any expert medical witnesses.
Defense counsel relied on these facts during his opening statement, when he told the jury that it would hear no testimony from experts to back up the People's assertion that the various medications Trudeau took did not affect his mental clarity. This was a crucial issue at trial, as petitioner's defense was based, in part, on whether Trudeau's diminished cognitive abilities clouded his identification of his assailant.
Yet the People proceeded to call Dr. Joyce Pastore, who had treated Trudeau, as a way to introduce his medical records. Defense counsel objected that neither Pastore, nor any other medical expert, appeared on the witness list. The Court allowed the People to call Pastore but warned that the doctor could not be qualified as an expert, nor could she offer any expert opinions. The court attempted to keep Pastore's testimony within the bounds of a lay witness, but instead allowed what quickly becam e expert testimony. See Fed.R.Evid. 701.
During the People's direct examination of Pastore, the prosecutor extensively questioned the doctor about her training and experience. This line of questioning appeared aimed at qualifying Pastore as an expert. Pastore then testified that, based on her interpretation of the medical records, Trudeau did not suffer from any mental impairments. Next, her testimony regarding the possible effect of Trudeau's various medications on his cognitive abilities certainly overstepped to some degree the boundaries set by the Court that she not offer expert opinions.
Defense counsel unsuccessfully moved for a mistrial immediately following Pastore's direct testimony, claiming such testimony clearly violated the court's prior ruling. Defense counsel argued that because Pastore had given precisely the kind of testimony counsel had told the jury in his opening statement that it would not hear, counsel's credibility was substantially impaired. Defense counsel further contended that he had made the statement to the jury in reasonable reliance upon the prosecutor's witness list and conduct during the earlier trial.
Petitioner's next claims that the trial court denied him his due process right to present a defense when it refused to allow him to present the videotaped grand jury testimony of Trudeau, who died before the start of petitioner's final trial.
The People videotaped Trudeau's grand jury testimony at a hospital, where he was recovering from injuries suffered during the attack. Trudeau testified in person at petitioner's first trial, which ended with a hung jury. His testimony included repeated hostile and profane outbursts aimed at petitioner.
Before the retrial commenced, Trudeau died of causes unrelated to the attack. The People successfully moved, over petitioner's objections, to introduce a transcript of Trudeau's testimony from the first trial at any subsequent trial. The court ordered a reading of the transcript, including Trudeau's outbursts, to allow the jury to get "a very, very clear" picture as to the "hostility of this witness." (Tr.456-57).
After the People rested at petitioner's final trial, defense counsel moved for admission of the videotaped grand jury testimony. Counsel argued that the cold reading of Trudeau's testimony from the first trial prejudiced petitioner because the jury did not have the opportunity to assess Trudeau's demeanor. Counsel further contended that the videotaped testimony was necessary to counterbalance the testimony of several of the People's witnesses regarding Trudeau's character and demeanor. Although trial courts have broad discretion regarding whether to admit testimony, National Labor Relations Board v. Donnelly Garment Co. (1947) 330 U.S. 219, 236, the court stated that it had no legal authority to admit the tape, and it accordingly denied the motion.
Petitioner's final contention is that his due process right to a fair trial was violated when the prosecutor told the jury in summation that Trudeau "came alive" through the cold reading of his prior testimony, despite the court's order not to discuss Trudeau's whereabouts.
Between petitioner's first trial, which ended with a hung jury, and his second trial, the victim in this case died of causes unrelated to the attack. A second trial resulted in a mistrial, over the prosecution's objections, after the court mistakenly informed the jury about Trudeau's death. The court ruled that such information would be so prejudicial to petitioner that it undoubtedly would deprive him of a fair trial.
Before petitioner's third trial, the court notified the jurors that Trudeau would not attend the proceedings. The court also told the jurors not to speculate on the cause of Trudeau's absence because it was unrelated to the case. In addition, the court instructed counsel and witnesses not to discuss Trudeau's death. All witnesses and counsel followed these instructions, at least until the prosecutor's summation, in which he told the jury: "You heard from Mr. Trudeau. He was here. He came alive through his testimony and through the corroboration of Mr. Johnson, the medical records, and Dr. Pastore." (Tr. 659) (emphasis added).
Petitioner claims that this comment essentially alerted the jury about Trudeau's death. Petitioner further contends that the jury would likely hold him responsible for the death, given Trudeau's age and the nature of the assault.
II. DISCUSSION
A. Appellate Division Review
In affirming petitioner's conviction, the Appellate Division rendered the following opinion:
Defendant was not deprived of his right to present a defense by the court's ruling precluding him from introducing in evidence the videotaped Grand Jury testimony of the deceased complaining witness. That witness had testified at the first trial in this case, which resulted in a hung jury, and his testimony from the first trial was read in evidence at the second trial. While People v. Robinson, 89 N.Y.2d 648, 657 N.Y.S.2d 575, 679 N.E.2d 1055, permits the introduction of Grand Jury testimony in limited circumstances, this case bears little resemblance to the circumstances that led to the holding in Robinson. There, the testimony of the defendant's estranged wife could not be secured for trial and her testimony before the Grand Jury had been exculpatory. It was critical to the defense and since the prosecutor had presented the ex-wife to the Grand Jury and extensively examined her in a manner closely resembling cross-examination, her testimony had sufficient indicia of reliability to be received in evidence, notwithstanding the hearsay rule. Here, there is no missing exculpatory testimony from a critical witness. The jury heard from the deceased victim of this crime through the introduction of his testimony from the first trial. The only purpose for which the videotaped Grand Jury testimony was sought was so that the jury could observe the victim's hostile demeanor at the time of his Grand Jury testimony, defense counsel having conceded that the testimony would be consistent with that given in the first trial. The exception in Robinson does not apply to introduction of a videotape merely to demonstrate demeanor and, even if it did, such evidence in this case would have been cumulative since the victim's testimony from the first trial featured angry outbursts that were not redacted from the record.
The testimony of the People's medical expert did not deprive defendant of a fair trial. Although the court had ruled, for discovery-related reasons, that the doctor's testimony would be limited to non-expert observations, the extent to which her testimony overstepped that boundary was minimal and harm less. Defendant's claim of prejudice arising from a comment he made in his opening statement in purported reliance on the court's ruling is unsubstantiated, particularly in light of the court's instructions to the jury.
The prosecutor's summation comment in which he stated that the victim had `com e alive' through the testimony from the first trial did not violate the court's order that neither side was to reveal that the witness had died. This phrase referred to the fact that the jury heard the testimony of an unavailable witness and it did not convey the 8 impression that the witness was dead. We have considered and rejected defendant's remaining claims concerning the prosecutor's summation.
Cordon, 261 A.D.2d 278, 691 N.Y.S.2d 390.
B. Habeas Corpus Standard of Review
Habeas corpus relief is not warranted to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. Estelle v. McGuire (1991) 502 U.S. 62, 68. A district court may grant a writ of habeas corpus pursuant to 28 U.S.C. § 2254 only where the trial court proceedings either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1), (2); see also Williams v. Taylor (2000) 529 U.S. 362, 375-76.
Under the first provision, a state court's decision is contrary to federal law if it either applies a rule that contradicts a prior Supreme Court holding or decides a case factually indistinguishable from a prior Supreme Court case in a different manner than the Supreme Court. Id. at 405-06. Under the second provision, a district court may grant a habeas petition if the state court decision unreasonably applies the governing legal rule to the facts of the petitioner's case. Id. at 407-08. Although "some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone (2d Cir. 2000) 221 F.3d 100, 111.
Regarding erroneous state court evidentiary rulings, which petitioner claims occurred in this case, we could grant habeas corpus relief only if such errors had a "substantial and injurious effect or influence in determining the jury's verdict" in the context of the People's entire case. Dunnigan v. Keane (2d Cir. 1998) 137 F.3d 117, 130 (quoting Brecht v. Abrahamson (1993) 507 U.S. 619, 623). Incorrect state court evidentiary rulings generally do not rise to the level of constitutional error sufficient to warrant habeas relief. Id. at 125. Such errors only violate a defendant's due process if the evidence "is so extremely unfair that its admission violates fundamental conceptions of justice." Id. (quoting Dowling v. United States (1990) 493 U.S. 342, 352).
C. The Instant Petition
The respondent annexed to its "Declaration of Opposition" copies of all briefs submitted by the petitioner and the New York County District Attorney's Office regarding this matter. At this court's request, the district attorney's office also has supplied us with substantial portions of the trial transcript.
Having carefully considered all of these submissions, we have come to the conclusion that by no stretch of the imagination could it be said that any errors that occurred at petitioner's trial could empower this court to grant his request for habeas relief. We specifically agree with the Appellate Division's reasons given in support of its decision to affirm petitioner's conviction.
D. Appointment of Counsel
Petitioner, who filed his habeas application pro se, also requested that this court approve an assignment of counsel. In view of our holdings above, appointment of counsel would have been futile, and a waste of resources in an undeserving case.
III. CONCLUSION
For the above reasons, we DENY petitioner's motion for appointment of counsel and his petition for habeas corpus. As he has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(3); Lucidore v. New York State Division of Parole (2d Cir. 2000) 209 F.3d 107, 111-12.
SO ORDERED.