Opinion
03 CV 5117 (JG).
July 23, 2004
DARREL K. HARRIS, No. 98-A-4253, Coxsackie Correctional Facility, West Coxsackie, New York, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Keith Dolan, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Darrel Harris, an inmate at the Coxsackie Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument today and now, for the reasons set forth below, deny the petition.
BACKGROUND
On December 7, 1996, Harris walked into Club 178, a social club at 178 Jefferson Avenue, Brooklyn, armed with a loaded gun and a knife. Harris knew everyone inside the club: Jerome Sims, the club's manager and bartender; Michael Harris ("M. Harris"), Eddie Brown, Evelyn Davis, and Newbry Mitchell. Harris sat at the bar, ordered a beer, and smoked a cigarette. Sometime later, he went to the bathroom. When he returned, he had a gun in his hand and announced, "You all know what this is. Everybody get on the floor." Harris then turned to Brown and demanded his money. Brown gave Harris over $200 and returned to the floor. Harris next called over Sims, who walked over to Harris, spoke briefly with him, and turned to walk away. As Sims did so, Harris shot him point blank in the back of the head. Harris then walked over to M. Harris, who was lying on the floor, and shot him point blank in the back of the head as well.
Harris and Michael Harris were not related.
After firing an errant shot towards Davis, Harris walked over to Brown and shot him point blank in the back of the head. Davis stood up and begged Harris to let her go, pleading that she had "five babies to take care of." Harris said no. He tried to shoot Davis in the face but had run out of ammunition. Harris then pulled out his knife and stabbed Davis in the back, puncturing her lung. As Davis struggled, Mitchell barricaded himself behind a stairwell door. Harris tried to open the door but could not. Meanwhile, Davis had staggered out of Club 178 to another social club nearby. She rang the doorbell and was let in. Almost immediately after she entered, the doorbell rang again. Davis said that it was Harris, that he had shot everyone in the other club, and not to let him in.
The police arrived at Club 178 minutes later and discovered the bodies of M. Harris and Sims, each of whom had died instantly. Davis was found outside the nearby social club and was pronounced dead at the hospital, having bled to death from the stab wound. Brown had brain surgery, was hospitalized for two weeks, but survived. Harris was arrested on December 20, 1996.
Harris was charged with six counts of first-degree felony murder, six counts of first-degree same-transaction murder, and several other related offenses. On May 23, 1997, the Kings County District Attorney filed a notice of intent to seek the death penalty under New York's then-newly restored death penalty statute. Indeed, this was the first capital prosecution following the restoration of the death penalty in 1995.
At trial, Harris acknowledged sole responsibility for the crimes, but claimed that he acted under an extreme emotional disturbance. On May 19, 1998, the jury found Harris guilty on six first-degree murder counts, attempted first-degree murder, and second-degree criminal possession of a weapon. The sentencing phase of the trial took another week and, on June 6, 1998, the same jury sentenced Harris to death on each first-degree murder count.
Pursuant to New York's constitution and laws, Harris appealed his conviction and sentenced directly to the Court of Appeals of New York. After extensive briefing (over 2200 total pages), the Court of Appeals heard argument on May 6, 2002. In a comprehensive decision dated July 9, 2002, the court affirmed Harris's convictions, but vacated his death sentence in light of a prior, unrelated decision it had issued after Harris had been sentenced. People v. Harris, 98 N.Y.2d 452 (2002). Harris was therefore resentenced on the first-degree murder counts to life imprisonment without parole. Harris neither appealed the resentencing nor filed any postconviction collateral attacks on his conviction or amended sentence.
In the instant petition, Harris claims that the trial court erred by (1) denying his request for "heightened scrutiny" during all aspects of the trial proceeding, (2) denying his challenges for cause to three prospective jurors, (3) dismissing five prospective jurors who had indicated that they were unwilling to convict a defendant based solely on eyewitness testimony, (4) discharging a sworn juror, and (5) precluding a surrebuttal witness from testifying for Harris during the guilt phase of the trial.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt."Id. at 2151.
Under the "unreasonable application" standard set forth inWilliams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome 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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041 (2003)).
B. Harris's Claims
1. Heightened Scrutiny
Harris's claim that he was entitled to "heightened scrutiny" throughout his trial because death is different is moot, as Harris is no longer facing a death sentence. In his memorandum of law in support of his petition, Harris argues that a heightened standard is necessary because of the gravity and irrevocability of a death sentence, and to avoid the grave injustice that would accompany an erroneous execution. These concerns are no longer implicated, as Harris's death sentence was vacated by the Court of Appeals. This issue is therefore moot, and does not justify issuance of the writ. See Paradis v. Arave, 130 F.3d 385, 389 (9th Cir. 1997) (noting that some claims had been rendered moot by commutation of death sentence); Campbell v. Wainwright, 738 F.2d 1573, 1576 (11th Cir. 1984) ("We also need not address issue A (the Witherspoon [ v. Illinois, 391 U.S. 510 (1968),] issue) because that claim for relief became moot when the district court invalidated Campbell's death sentence in 1972.").
2. The Denial of Harris's Challenges for Cause
Harris argues that his federal constitutional right to an impartial jury under the Sixth and Fourteenth Amendments was violated when the trial court rejected his for-cause challenges to three prospective jurors. Harris acknowledges, however, that none of these three prospective jurors sat on the jury; Harris used peremptory challenges to successfully remove all three. Furthermore, Harris does not allege that the jury that convicted him and sentenced him to death was biased.
In affirming Harris's conviction, the Court of Appeals held that the trial court's rulings were not error, specifically, that the trial court was right to not exclude the three jurors for cause. Harris, 98 N.Y.2d at 485-87 n. 13. I write only to add that Harris's claims here are foreclosed by United States v. Martinez-Salazar, 528 U.S. 304 (2000), and Ross v. Oklahoma, 487 U.S. 81 (1988).
In Ross, the Court held that a claim that the jury was not impartial must focus not on the juror(s) whom the defendant was forced to peremptorily strike, but rather on those who ultimately sat. Id. at 86. Here, as in Ross, none of the jurors who sat was challenged for cause by Harris, nor has he suggested that any of them were biased. That Harris was forced to use peremptory challenges to strike these jurors, and that he had exhausted his peremptory challenges by the end of voir dire, places this case squarely within the facts of Ross. There, the Court "reject[ed] the notion that the loss of a peremptory challenge constitutes a violation of the constitutional rights to an impartial jury."Id. at 88. Reaffirming that "peremptory challenges are not of constitutional dimension," the Court held that "[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Id. The Court reaffirmed these principles in Martinez-Salazar, holding "that if the defendant elects to cure [a judge's error] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right." 528 U.S. at 307. For this reason, and for those discussed by the Court of Appeals, this claim does not justify issuance of the writ.
Though it is unclear if Harris makes the claim, I note that his due process rights were not implicated by his use of the peremptory challenges at issue. See Martinez-Salazar, 528 U.S. at 313-17; Ross, 487 U.S. at 89-91.
3. The Dismissal of Five Prospective Jurors for Cause
Harris claims that the trial court improperly excluded five prospective jurors who indicated an unwillingness to convict on eyewitness testimony alone. In rejecting this claim, the Court of Appeals recognized that there was both a "statutory and constitutional aspect" to this claim. Harris, 98 N.Y.2d at 487 n. 13. The court held that "[a]ny meritorious challenge on constitutional grounds . . . would only result in vacatur of the death sentence. There is none here." Id.
This conclusion was reasonable.
When reviewing a trial court's dismissal of potential jurors for cause, this court must determine whether the trial court's decision prevented the empaneling of an impartial jury. It is not enough for the defendant to show that the decision to exclude the . . . jurors was improper. He also must show that the jury selected was biased.Hill v. Brigano, 199 F.3d 833, 844 (6th Cir. 1999) (citing Ross, 487 U.S. at 83-88). Again, Harris does not allege that the jury that convicted and sentenced him was biased. Indeed, to the extent that the Court of Appeals was correct that these five prospective jurors were properly dismissed for cause — and, after reviewing the voir dire of these jurors, I find that it was — Harris argues that he has a right to a jury biased against the state. Such a right clearly does not exist.
Harris's claim is largely premised on the allegation that the court and prosecutor misinformed the jury that the government's case was based on eyewitness testimony alone. Harris contends that the prosecution also planned to introduce Harris's statements, Harris's attempt to avoid arrest, and a hearsay statement. After reviewing the voir dire cited by Harris in his memorandum of law, I find that neither the court nor the prosecutor misrepresented the government's case. For these reasons, the Court of Appeals' decision was not unreasonable, and this claim does not justify issuance of the writ.
4. Discharging a Sworn Juror
Harris alleges that the trial court erred in dismissing juror number seven ("Juror 7"), a sworn juror. I briefly recount the facts underlying this claim.
On May 5, 1998, the court received a note stating that Juror 7 had an emergency doctor's appointment the following morning at 9:30. (R. 18348.) The court offered to call the doctor to help Juror 7 reschedule, but Juror 7 responded that he did not have the name or phone number of the doctor. (R. 18349.) Juror 7 said he would provide the court with his doctor's name and phone number later in the day. (R. 18351.) Later that day, however, Juror 7 informed the court that he had resolved his medical appointment, but had another matter to attend to the next morning at 9:30. (R. 18477-78.) Specifically, Juror 7 had to answer a summons that he had received, he claimed, for the misdemeanor offense of drinking an alcoholic beverage in public. (R. 18478.) Juror 7 was then instructed to bring a copy of the summons to the court early the next morning. (R. 18479.)
When the court reviewed the summons the next morning, it learned that Juror 7 had been charged with marijuana possession, not drinking alcohol in public. (R. 18559.) Therefore, on May 8, 1998, when the issue was next addressed, the prosecution moved for Juror 7's removal on two grounds: (1) The summons listed a Manhattan address, which would create a jurisdictional defect were he allowed to sit, and (2) he had given false information to the court. (R. 18814-16.) Later that day, the court closed the courtroom and questioned Juror 7 on these issues. When asked where he had needed to be on May 6, 1998 at 9:30 a.m. — whether he had to be at a doctor's appointment, a court appearance, or both — Juror 7 responded that it was both. (R. 18941.) Juror 7 said that he had been too embarrassed to tell the court about the summons. (R. 18942-43.) When asked why he told the court that the summons was for public alcohol consumption rather than marijuana possession, Juror 7 responded, "I believe I said it was for alcohol because I was drinking a beer that day as well." (R. 18943.)
As to the Manhattan address, Juror 7 explained that that address, his mother's, appeared on his driver's license which the police had copied for the summons. (R. 18940.)
In its brief in support of its motion to remove Juror 7, the government alerted the court to potential lies on Juror 7's questionnaire. Specifically, Juror 7 had written that he had never been accused or charged with a crime, or interviewed by the police. However, Juror 7 had received a desk appearance ticket for criminal possession of marijuana on February 3, 1997. (R. 19607-08.) Juror 7 explained that he did not include that information on his questionnaire because "the case was dismissed" so he "thought that was it." (R. 19608.) He later said that "maybe [he] didn't completely understand the question" on the questionnaire. (Id.) The court decided to discharge Juror 7:
I believe he is very anxious to serve on the case and he doesn't really want to reveal certain things that might hurt his ability to be on the case. I think that's why he was deceptive to the Court when he spoke about a medical emergency that didn't exist. When he misrepresented the nature of the summons that he had received for having been a bag of marijuana and concealed a prior arrest.
In addition to which, it is kind of uncertain — that residency requirement status is a little troubling. He had had three separate addresses when he should have had only one. So all those things taken together would make me feel that he is disqualified.
And his conduct in lying to the Court, although I can understand that he might have wanted to be in the case, it is a substantial nature to come into court and under oath say you have a medical emergency and when asked by the Court is it an emergency to say sort of. And then to make up a story that didn't exist and that it was really something else. All those things are a lack of candor with the Court which would make his trustworthiness questionable. So I will be excusing him.
(R. 19613-14; see also R. 20669-70 (written decision describing Juror 7's "untruthful and evasive responses to the court's inquiries").)
Harris's has not rebutted these factual findings at all, let alone with the clear and convincing evidence required by 28 U.S.C. § 2254(e)(1). Nor does Harris allege that the jury that determined his guilt and sentenced him was not impartial. Based on these findings, the trial court was justified in excusing Juror 7, and the Court of Appeal's affirmance was reasonable. Therefore, this claim does not justify issuance of the writ.
5. Precluding a Surrebuttal Witness
Finally, Harris claims that the trial court improperly precluded him from presenting surrebuttal testimony of his expert witness. Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus.See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously excluded evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Taylor v. Curry, 708 F.2d. 886, 891 (2d Cir. 1983). The test for determining whether erroneous evidentiary rulings denied Harris a fair trial centers on whether the excluded evidence would have created "a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976).
The Court of Appeals thoughtfully addressed this issue at length, holding that "virtually all of the [expert's surrebuttal] proffered testimony was cumulative to, and corroborative of, the evidence presented on the defendant's case-in-chief on the affirmative defense" of extreme emotional disturbance. Harris, 98 N.Y.2d at 490. The court therefore concluded that it was within the trial court's discretion to preclude the evidence. As this decision was reasonable, this claim does not support issuance of the writ.
CONCLUSION
For the foregoing reasons, the petition is denied. As Harris has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.