Opinion
00 Civ. 3304 (WHP)(JCF).
April 9, 2001
REPORT AND RECOMMENDATION
Enrique Garo brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County for criminal possession of a weapon. The petitioner contends that there was insufficient evidence to support the conviction and that the prosecutor committed misconduct during summation that deprived Mr. Garo of his right to a fair trial. For the reasons set forth below, the petition should be denied.
Background
A. Evidence at Trial
The prosecution presented its case at trial primarily through two witnesses, Gregory Weems and Ivan Jones. On July 18, 1994, Mr. Weems exited the rear entrance of his apartment building in Manhattan between 1:30 and 2:30 a.m. and walked toward West 133rd Street to buy cigarettes. (Tr. 9-11, 14, 17, 33-34, 47). As he was ascending a ramp to the street, Mr. Weems noticed a man dressed entirely in white crossing 133rd Street toward him. (Tr. 14-15). He recognized this man as Mr. Garo, whom he had known by sight for three or four years. (Tr. 18). When Mr. Weems got to the top of the ramp, Mr. Garo was standing on the sidewalk in front of him, eight to ten feet away. (Tr. 16). Mr. Weems noticed that Mr. Garo's brother, Maximo Carela, was standing nearby looking in both directions. (Tr. 20-21). The petitioner pointed a gun at Mr. Weems' face and told him to go back down the ramp. (Tr. 15-16). As Mr. Weems turned around, he heard gunshots coming from behind and assumed that Mr. Garo was shooting at him. (Tr. 19, 40-41). Mr. Weems ran back into his apartment building and then out the front entrance to look for the police. (Tr. 42). He flagged down a patrol car and told the officers that a man down the block was shooting a gun. (Tr. 22, 54-55). Mr. Weems got into the car and the police drove down West 133rd Street. (Tr. 22). They found the petitioner, wearing the same white clothing, standing on a stoop, and Mr. Weems identified him as the man with the gun. (Tr. 22-23, 69). Also present was Mr. Carela, whom Mr. Weems recognized as the man who had been at the petitioner's side when Mr. Garo held the gun on him. (Tr. 23). The police then arrested both Mr. Garo and Mr. Carela. (Tr. 23, 59-60, 83).
"Tr." refers to the trial transcript.
During this incident, Ivan Jones was in the bedroom of his eleventh-floor apartment which overlooks West 133rd Street. (Tr. 143). When he heard gunshots, Mr. Jones ran to the bedroom window. (Tr. 143-44). Using a pair of binoculars, he saw two men on the opposite side of the street firing guns. (Tr. 145). One man was dressed in a green shirt and green shorts, and the other was dressed in white shorts and a white tee shirt. (Tr. 145-46). While these men were shooting, Mr. Jones heard other shots coming from the direction toward which the men were firing. (Tr. 150). Mr. Jones then heard sirens, and someone yelled "policia." (Tr. 203-04). The two men he was watching quickly moved away, the man in white entering 537 West 133rd Street, and the man in green entering another building. (Tr. 156-57). Through his binoculars, Mr. Jones saw the man in white emerge on the roof, walk to the rear, bend over the edge, and then reenter the building. (Tr. 157). He then observed that man come out of the entrance of 537 West 133rd Street. (Tr. 161). Mr. Jones continued watching as the police arrived and arrested both Mr. Garo, the man in white, and Mr. Carela, the man in green. (Tr. 161-62).
The police searched the area and located a spent shell casing but no weapons. (Tr. 62-64, 93). When the petitioner was searched he was not carrying a gun. (Tr. 59). Two witnesses testified at trial for the defense.
Elizabeth Sotomayor had been Mr. Garo's girlfriend at the time of the shooting and had then been pregnant with his child. (Tr. 271, 277-78). She testified that on the night of the incident, Mr. Garo's brother Franklin, whom he resembled, had been wearing white pants and a white shirt. (Tr. 274-76, 301-04). Ms. Sotomayor and the petitioner went to bed at her mother's apartment at 529 West 133rd Street at about midnight. (Tr. 269-70, 277). She later woke up feeling nauseous, and when she was returning from the bathroom she heard gunshots. (Tr. 277-79). When she got back in bed, Mr. Garo was still there. (Tr. 280).
Immediately thereafter, Mr. Carela's girlfriend Xiomara arrived and said she was afraid that Mr. Carela had been shot. (Tr. 280-81). Ms. Sotomayor woke Mr. Garo and told him what had happened. (Tr. 281). Mr. Garo quickly put on a beige shirt and shorts and ran out the door. (Tr. 281-82). When Ms. Sotomayor made her way to the street, she saw the police handcuffing Mr. Garo. (Tr. 294-95). After the police left, Ms. Sotomayor encountered Xiomara and Franklin. They got into a taxi to go to the police station but then Xiomara saw another cab carrying one of the men who had earlier been shooting at Franklin and Mr. Carela. (Tr. 307-08). After following that taxi for some distance, they went to the precinct to report on the shooting. (Tr. 308-09).
Rosemary Diaz was also a resident of 529 West 133rd Street. (Tr. 244-45). She testified that when she heard gunshots at about 2:15 to 2:30 a.m. on the night of the incident, she went to the lobby of her building. (Tr. 247-49). There, according to Ms. Diaz, she saw the petitioner walk out of the building and down the street. (Tr. 250-53).
B. Procedural History
Following their arrests, Mr. Garo and Mr. Carela were each indicted for criminal possession of a weapon. They were tried together in May 1995, and Mr. Carela was acquitted while the jury deadlocked with respect to the charges against Mr. Garo. Mr. Garo was then retried before Justice Dorothy J. Cropper, and the testimony described above was introduced. On April 25, 1996, the jury returned a verdict of guilty on one count each of Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(4). On May 23, 1996, Justice Cropper sentenced Mr. Garo as a predicate felony offender to concurrent terms of six to twelve and three and one-half to seven years imprisonment.
On appeal, the petitioner argued that his conviction was against the weight of the evidence and that the prosecutor's statements in summation had denied him a fair trial. On December 10, 1998, the Appellate Division, First Department affirmed Mr. Garo's conviction, People v. Garo, 256 A.D.2d 98, 680 N.Y.S.2d 851 (1st Dep't 1998), and the New York Court of Appeals denied leave to appeal on May 11, 1999. People v. Garo, 93 N.Y.2d 924, 693 N.Y.S.2d 507 (1999).
Mr. Garo then filed the instant petition, raising the same claims that he asserted on direct appeal.
First, he argues that his conviction was not supported by sufficient evidence and therefore violates his right to due process under the Fourteenth Amendment.
Second, he contends that he was denied a fair trial because, in summation, the prosecutor: (1) improperly suggested that Ms. Diaz, a defense witness, had a duty to report her information to the police; (2) commented that the petitioner was a man to be feared and implied that he had threatened Ms. Diaz; (3) denigrated defense counsel by alleging that he was mistreating a prosecution witness and had scripted the testimony of the defense witnesses; and (4) shifted the burden of proof by arguing that the petitioner had failed to call exculpatory witnesses.
Because Mr. Garo has fully exhausted state remedies with respect to these claims, they may be addressed on the merits.
Discussion
A. Sufficiency of the Evidence
The standard for habeas corpus review of the sufficiency of evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal quotations and citation omitted). "To succeed, [the defendant] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. at 178 (internal quotations and citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A federal judge reviewing a sufficiency claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Id. at 318-19.
Rather, the judge "stands in the shoes of the state trial court." Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984). In so doing, the court must construe the evidence in the light most favorable to the prosecution, deferring to the jury's resolution of any conflicts in the testimony and its assessment of the witnesses' credibility. Jackson, 443 U.S. at 319; United States v. LeRoy, 687 F.2d 610, 616 (2d Cir. 1982); see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (Jackson inquiry asks only whether decision to convict was rational, not whether it was correct). "As long as any competent evidence went to the fact-finders from which they could infer guilt beyond a reasonable doubt, the conviction will stand." Martin v. Scully, 748 F. Supp. 159, 164 (S.D.N.Y. 1990) (quoting McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981)). "Guilt beyond a reasonable doubt may be established entirely by circumstantial evidence, and this evidence must not be reviewed piecemeal, but rather as a whole. . . . [A] lack of direct evidence does not preclude a conviction on circumstantial evidence." Maldonado v. Scully, 86 F.3d 32, 35-36 (2d Cir. 1996) (internal citations omitted).
In essence, Mr. Garo complains that no reasonable jury could have found him guilty in light of his alibi defense and the fact that his brother, who was his co-defendant in the first trial, was acquitted of the same charges. But this case turned largely on credibility, and the jury was entitled to credit the identification testimony of two disinterested witnesses, Mr. Weems and Mr. Jones, over that of the petitioner's former girlfriend, Ms. Sotomayor, and over that of Ms. Diaz, who never provided to the police the exculpatory information she testified about at trial. Moreover, the acquittal of Mr. Carela is not significant. Since only Mr. Jones testified to seeing him with a weapon, the evidence against him was weak. By contrast, at the petitioner's trial, Mr. Weems testified that he witnessed Mr. Garo in possession of a weapon, and Mr. Jones saw him take actions consistent with disposing of it. Thus, the jury was entitled to find that the charges against the petitioner were proven beyond a reasonable doubt.
B. Prosecutorial Misconduct
"The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quotations and citations omitted). Accordingly, a writ of habeas corpus will not issue on the basis of prosecutorial misconduct during summation unless the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). See also Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). To prevail, the petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). Factors relevant to the determination of actual prejudice include: (1) the severity of the prosecutor's misconduct; (2) what measures the trial court took to alleviate any prejudice; and (3) the certainty of conviction absent the offending statements. See Tankleff, 135 F.3d at 252; Bentley, 41 F.3d at 824. Mr. Garo's claims of prosecutorial misconduct must be measured against this standard.
1. Duty to Report
The petitioner's first complaint is that the prosecutor unfairly cross-examined Ms. Diaz concerning her failure to advise the police that she had exculpatory information and then emphasized this point in summation. (Tr. 266-67, 375-76). Since a citizen has no general obligation to make such a report to the police, Mr. Garo argues that it was misconduct for the prosecutor to make this argument at trial.
In order to construe the petition most favorably to Mr. Garo, I have culled his arguments not only from the petition itself, but also from his appellate brief in the state court.
The petitioner is mistaken. A prosecutor has every right to undermine the credibility of an alibi witness. Since someone with exculpatory information might reasonably be expected to come forward even in the absence of a legal obligation, the prosecutor here was entitled to cross-examine Ms. Diaz about her failure to do so. "Although an alibi witness has no duty to report exculpatory information to the police, the witness's failure to disclose such information until the time of trial is a factor the jury should consider in assessing the weight to be given to the testimony of [the alibi] witness." Thomas v. Scully, 854 F. Supp. 944, 959 (E.D.N.Y. 1994) (internal quotations and citation omitted); see also United States v. Laury, 985 F.2d 1293, 1305 (5th Cir. 1993) (prosecutor could examine alibi witness concerning failure to report and could comment on it in summation); United States v. Carr, 584 F.2d 612, 617-18 (2d Cir. 1978) (not improper for prosecutor to question alibi witness concerning silence prior to trial); Morales v. Miller, 41 F. Supp.2d 364, 379-80 (E.D.N.Y. 1999); Bradford v. Keane, No. CV-94-4665, 1996 WL 361593, at *13 (E.D.N.Y. June 3, 1996). Thus, the prosecutor's conduct in this case was not improper, and certainly did not rise to the level of a due process violation.
2. Threats of Retaliation
Next, Mr. Garo argues that the prosecutor, without any evidentiary basis, implied that he had threatened witnesses. With respect to Ms. Diaz, the prosecutor argued as follows:
[The Prosecutor]: Why would Rosa Diaz come in here and give false testimony to you folks? Enrique Garo knows where she lives. Maximo Carela knows where she lives. These are men who have brothers. These are men who have access to guns.
[Defense Counsel]: Objection, Your Honor.
THE COURT: Sustained.
[The Prosecutor]: [Defense counsel] told you himself in his summation why she would come in and give false testimony. She was petrified. She didn't want to be here. You could tell from her demeanor how uncomfortable and how scared she was.
(Tr. 376). In addition, in contending that Mr. Jones' testimony was worthy of belief, the prosecutor stated, "He testified, not once but twice, knowing that he would have to talk to you about his marital problems, knowing that he would have to disclose where he lives with his family, his wife and children and his father, what apartment they live in." (Tr. 365).
A prosecutor is entitled to comment on the demeanor of a witness, including the fact that the witness appears fearful. See United States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992). However, the prosecutor here went further by improperly suggesting that Ms. Diaz would commit perjury out of fear of the petitioner and his brothers.
This misconduct did not, however, violate Mr. Garo's due process rights. The remarks concerning the threat posed by the petitioner and his brothers were "short and fleeting," and therefore the severity of the prosecutor's misconduct is minimal. See Tankleff, 135 F.3d at 253. Furthermore, Justice Cropper sustained the objection to these comments, and defense counsel requested no additional remedy. Finally, there is no possibility that the verdict would have been different in the absence of the prosecutor's statements in summation. The evidence against the petitioner was substantial and Ms. Diaz's credibility had already been substantially undermined on cross-examination.
Mr. Garo's constitutional argument is even weaker with respect to the prosecutor's reference to Mr. Jones disclosing his address. At worst, this was a single, oblique reference to some unidentified danger posed to the witness. It was so insignificant that defense counsel did not object, though he objected to several other aspects of the prosecutor's summation. See Rojas v. Senkowski, No. CV-95-1866, 1996 WL 449321, at *4 (E.D.N.Y. July 29, 1996) (failure to object to prosecutor's remarks "undermines the seriousness of petitioner's claim of error"). And, again, this comment had no discernable effect on the jury verdict.
Thus, while the prosecutor erred by implying that the petitioner and his brothers posed a threat to witnesses, these remarks did not constitute actual prejudice to Mr. Garo and so did not violate his due process rights.
3. Denigration of Defense Counsel
Mr. Garo further argues that the prosecutor disparaged his attorney by suggesting that he had been overbearing with a prosecution witness and had coached the alibi witnesses in their testimony.
First, the prosecutor, in referring to Mr. Jones, said, He simply reported what he saw, like we would hope any good citizen would, and I sincerely hope that nothing that happened in this courtroom over the course of the trial would deter you folks from doing the same thing should you find yourself in a situation where you're a witness to a crime.
(Tr. 365). To the extent that these comments refer to defense counsel at all, they are not improper. A prosecutor is entitled to respond to defense attacks on the credibility of a witness by pointing out the witness' willingness to withstand the unpleasantness of cross-examination. See Evans v. Artuz, 68 F. Supp.2d 188, 204 (E.D.N.Y. 1999) (prosecutor's reference to defense counsel's "humiliation" of witness not improper).
Second, in referring to an apparent error in Ms. Diaz's testimony, the prosecutor speculated, "And how could she be mistaken about that? Well, I'll tell you how. . . . She was told what to say when she came into court." (Tr. 375). Thereafter, the prosecutor explained Ms. Diaz's knowledge of a particular detail by again alleging, "[S]he was told to say that." (Tr. 375). Similarly, the prosecutor commented that Ms. Sotomayor "sounded like she had a script memorized when she testified and, in fact, she did." (Tr. 379).
These remarks, however, were no more than argument that the testimony of these witnesses was fabricated. As such, it is fair comment on their credibility.
There was no suggestion whatsoever in the prosecutor's argument that defense counsel was complicit in the scripting of the testimony.
4. Burden of Proof
Finally, Mr. Garo complains that the prosecutor implicitly shifted the burden of proof to the defense by pointing out in summation that neither Mr. Carela nor Xiomara had been called as witnesses. But, "[o]nce a defendant comes forward with evidence, the prosecution generally may comment on his failure to call an available witness who is under his control and whose testimony may be material." See Tankleff, 135 F.3d at 251 (citing United States v. Yuzary, 55 F.3d 47, 53 (2d Cir. 1995)). Thus, there was nothing improper about the prosecutor's observation here that Mr. Garo had declined to call two eyewitnesses: one brother and the girlfriend of another brother.
Conclusion
For the reasons set forth above, there was sufficient evidence to support the jury verdict, and the prosecutor's statements either did not constitute misconduct or did not rise to the level of a due process violation. Accordingly, I recommend that Mr. Garo's petition for a writ of habeas corpus be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, Room 234, 40 Foley Square, New York, New York, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.