Opinion
00 Civ. 5505 (GEL)
April 23, 2001
OPINION AND ORDER
Leon Pitts, a state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. His claims are without merit, and his petition is denied.
On February 27, 1995, Pitts was convicted in Supreme Court, New York County, of robbery and criminal possession of stolen property. The evidence showed that at approximately 4:30 a.m. on June 17, 1994, Pitts and two co-defendants seized and robbed the complainant, an intoxicated man who had attempted to purchase marijuana from Pitts shortly before the robbery. According to the victim's testimony, as he was walking along West 40th Street in Manhattan, several individuals grabbed him around the shoulders, pinned his arms against his body, and stole a wallet containing cash and some credit cards. (Tr. 37-39.) A bystander who happened to observe the event corroborated the victim's account of what had happened, identifying Pitts as the person who held the victim while two others took his wallet. (Tr. 174-76.) The witness alerted police, who pursued and arrested the defendants, and recovered the victim's property. (Tr. 176-77, 194, 197, 225-29)
Pitts was sentenced to concurrent terms of imprisonment totaling seven to fourteen years. On November 19, 1998, the Appellate Division unanimously affirmed his conviction (Opp. Aff. Ex A), and on June 21, 1999, the New York Court of Appeals denied leave to appeal. (Id. Ex. C.) On June 12, 2000, Pitt filed this pro se petition for a writ of habeas corpus.
Pitts makes three claims. First, he contends that he was denied due process under the Fourteenth Amendment during the grand jury proceedings that led to his indictment. Specifically, Pitts argues (1) that he was not given prior notice that the District Attorney planned to seek an indictment on felony charges of robbery and possession of stolen property, rather than on the original charges of possession and sale of marijuana, contained in a summons issued on the night of the robbery, and (2) that the prosecutor failed to present exculpatory evidence to the grand jury. These arguments are without merit. Even in federal felony cases, where the Fifth Amendment guarantees a right to grand jury indictment, grand jury proceedings are secret; there is no requirement that subjects of grand jury investigations be advised that a grand jury is considering charges; and grand juries are not limited to considering charges previously presented in a criminal complaint or summons. Fed.R.Crim.P. 6(e)(2), Blair v. United States, 250 U.S. 273, 282 (1919);Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 203 (1951) (Reed, J., dissenting); United States ex rel. McCann v. Thompson, 144 F.2d 604, 605-06 (2d Cir. 1944) (L. Hand, J.). Nor do even federal prosecutors have a constitutional obligation to present exculpatory evidence to the grand jury. United States v. Williams, 504 U.S. 36 (1994).
More fundamentally, however, there is no federal constitutional right to indictment by a grand jury in state prosecutions. Hurtado v. California, 110 U.S. 516 (1884). Since Pitts, who was found guilty beyond a reasonable doubt at trial, had no federally-guaranteed right to have his case presented to a grand jury at all, any alleged errors in the state grand jury proceedings are not cognizable on habeas corpus. Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989). Cf United States v. Mechanik, 475 U.S. 66, 70 (1986) ("Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt").
Second, Pitts argues that the trial court deprived him of his Sixth Amendment right to confrontation, and interfered with his ability to present a defense, by denying his request for a continuance to obtain a transcript of the bystander witness's guilty plea to petit larceny, entered more than eight years prior to the robbery here. "When a denial of a continuance forms the basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process." Hicks v. Wainwright, 633, 1146, 1148 (5th, Cir. 1981). Accord Brown v. O'Dea, 227 F.3d 642, 646 (6th Cir. 2000); see also Ungar v. Sarafitte, 376 U.S. 575, 589 (1964) ("The matter of continuance is traditionally within the discretion of the trial judge, and . . . not every denial of a request for more time . . . violates due process even if the party fails to offer evidence or is compelled to defend without counsel").
Pitts had, and used, more than adequate opportunity to cross-examine the witness regarding his prior conviction. Although the witness denied that he had actually committed the offense to which he pled guilty, he accepted responsibility for the conviction and admitted that he had pleaded guilty. At most, the transcript would have confirmed what was obvious, and what the witness effectively admitted: that in pleading guilty, he had told the court that he was in fact guilty, contrary to his testimony at trial that he had not actually committed the crime. Pitts' attorney explored the witness's equivocations about his plea before the jury, which was accordingly able to decide what weight to give the witness's testimony in light of his prior criminal record and dubious explanation of his guilty plea. The Confrontation Clause requires nothing more. "Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a `discriminating appraisal' of the particular witness's credibility." United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993) (quoting United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990)).
Third, Pitts argues that the prosecutor's summation, which he claims "exceeded the bounds of rhetorical licence" by appealing to the jurors' "emotions and fears," violated his right to due process. (Pet. 10.) But statements made during a summation only implicate due process rights when the prosecutor engages in egregious misconduct that substantially prejudices a defendant. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974). The Second Circuit has held that "[d]efendants who contend that a prosecutor's remarks warrant reversal face a heavy burden, because the misconduct alleged must be so severe and significant as to result in the denial of their right to a fair trial." United States v. Feliciano, 223 F.3d 102, 123 (2d Cir. 2000).
In United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), the Court established a tripartite test for determining when alleged excesses in a summation deny defendant a fair trial. "Determining substantial prejudice involves three factors: the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper statements." Id. In addition, the context in which the prosecutor makes a summation may have an ameliorating effect on arguably prejudicial remarks. United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir. 1989).
Applying the preceding standard, the challenged portions of the prosecutor's summation were fair comment and do not approach the level of being so unfair and prejudicial as to implicate due process concerns. Pitts objects to two remarks by the prosecutor. First, replying to defense counsel's emphasis on the fact that the officer who responded to the scene merely issued Pitts a summons for sale of marijuana, rather than arresting him for robbery, the prosecutor cautioned the jury that the officer's choice that Pitts was not involved in the robbery, thereby acquitting and "wrongly releas[ing]" him for a second time. (Tr. 500-01.) Petitioner claims that this statement appealed to passion and disclosed he was incarcerated pending trial, prejudicing the presumption of innocence by implying that a high bail was set due to a prior criminal background. (Pet. 10.) But the prosecutor's argument that the petitioner should not be "released" does not necessarily imply that he was jailed pending trial, and could well be taken simply as an argument that petitioner should not be acquitted and thus mistakenly "let off" a second time, as the prosecution contended he had been when the officer failed to arrest him for robbery at the scene. In any case, on even petitioner's interpretation, the passing remark would not warrant reversal of his conviction. See Modica, 663 F.2d at 1180-82 (suggestion that defendant should not be wrongly released insufficient to establish substantial prejudice, even absent curative instruction).
Petitioner next claims that the prosecutor improperly vouched for the credibility of the eyewitness. Pitts asserts that "the prosecution took [the eyewitness's] . . . testimony about pleading guilty when he was not guilty and opined not only that it was truthful but . . . a powerful reason to believe" his testimony. (Pet. 10.) of course, it is improper for prosecutors (or other lawyers) "to vouch for their witnesses' truthfulness" in summations. Modica, 663 F.2d at 1179. However, the prosecutor here did not violate that rule. The evil of vouching inheres in the prosecutor's placing her own, and the government's, credibility behind the witness, by asserting her personal belief in the witness's believability, arguing that the government would not use the witness if he were not credible, or implying some private, extra-record knowledge confirming the witness's account. Here, the prosecutor did none of these things, but simply advanced arguments, based on record facts and common sense, about why the witness's story should be believed. The jury was free to accept or reject those arguments. Given defense counsel's attack on the witness's credibility, the prosecutor's response through the use of logical argument and rhetorical devices, was entirely proper. At any rate, no substantial prejudice occurred and petitioner was not denied a fair trial. Cf. United States v. Bivona, 487 F.2d 443, 447 (2d Cir. 1973) (misconduct imposed minimal harm due to the give-and-take of summation; prosecutor must be accorded some range to respond to defense summations).
CONCLUSION
For the foregoing reasons, Pitts' petition for a writ of habeas corpus is denied. A certificate of appealability will not issue, because Pitts has failed to make a substantial showing of a denial of a constitutional right, as required by 28 U.S.C. § 2253 (c)(2).
SO ORDERED: