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denying habeas claim re discharge of sworn juror for lateness
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No. 96 CIV. 8043(SAS).
July 16, 1997
Miguel Rivalta, Pro Se.
Avi Lew, Assistant Attorney General, New York, New York, for Respondent.
OPINION AND ORDER
*1 Petitioner Miguel Rivalta was indicted on March 26, 1986, in the Supreme Court, on two counts of Robbery in the First Degree for the separate March 1986 robberies of Vicki Juditz ("Juditz") and-Eve-Zimmerman ("Zimmerman"). On June 19, 1986, petitioner was indicted on a further count of Robbery in the First Degree for the January 1986 robbery of Leslie Friedman ("Friedman"). Following two jury trials in early 1987, petitioner was convicted of three counts of Robbery in the First Degree as well as other charges pursuant to additional indictments. On May 26, 1987, he was sentenced to three consecutive terms of six to twelve years' imprisonment. Petitioner appealed his convictions under both the Juditz-Zimmerman and Friedman indictments. On May 16, 1989, the Appellate Division of the New York Supreme Court unanimously affirmed those convictions. See People v. Rivalta, 150 A.D.2d 992, 541 N.Y.S.2d 1006 (1st Dep't 1989). On August 17, 1989, the New York State Court of Appeals denied petitioner leave to appeal. See People v. Rivalta, 74 N.Y.2d 817, 546 N.Y.S.2d 575, 545 N.E.2d 889 (1989). Petitioner is currently incarcerated at Green Haven Correctional Facility.
Proceeding pro se, petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner asserts that he is entitled to federal relief based on the four grounds set forth below. He bases his claim regarding the Juditz-Zimmerman indictment on the arguments that (1) the trial court improperly refused to compel the complainants to testify at petitioner's Wade hearing; and (2) the trial judge erroneously rejected petitioner's application to sever the two robbery counts. Petitioner's contentions pertaining to the Friedman indictment are that (1) the trial judge incorrectly discharged and replaced an absent juror; and (2) the trial court erroneously admitted evidence of petitioner's prior bad act. For the reasons stated below, petitioner's request for relief is denied.
Because petitioner's application was first filed on October 25, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which imposed a filing deadline for federal habeas corpus petitions of one year following final state court determination. While respondent has not asserted that the petition is time-barred, I must nonetheless consider whether petitioner's application falls within the "reasonable time after the effective date of the AEDPA to file a petition" that the Second Circuit has mandated and cautioned should not be "applied with undue rigor." Peterson v. Demskie, 107 F.3d 92, 92-93 (2d Cir. 1997). See also Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996) (asserting that "it would be entirely unfair and a severe instance of retroactivity to apply [AEDPA's new statute of limitations] where that period ended before the effective date of the Act," but declining to decide between allowing "a full year from the effective date of the Act or only a reasonable time thereafter").
While the Court of Appeals has instructed that there is "no need to accord a full year after the effective date of the AEDPA," the outer limits of the reasonable period have not been clearly established and must be determined on a case-by-case basis. Peterson, 107 F.3d at 93. This Court has recently held that Peterson "could not have meant to suggest that 350 days" should be considered reasonable, and has found that approximately four months may qualify as a reasonable period in view of the "pro se nature of [a] petitioner's representation." Oppenheimer v. Kelly, 97 Civ. 3035, 1997 WL 362216 at *1 (S.D.N.Y. June 27, 1997); Valentine v. Senkowski, ___ F.Supp. ___, 97 Civ. 1626 966 F.Supp. 239, 1997 WL 314918 at *1 (S.D.N.Y. June 10, 1997); see also Scire v. United States, 96 Civ. 3446, 1997 WL 138991 at *5 (E.D.N.Y. March 24, 1997) (almost three months "falls within the `reasonable time' exception to the limitations period suggested by the Second Circuit"). In light of the prevailing lenient construction afforded under the AEDPA and the liberal treatment traditionally conferred by this Circuit on pro se parties, I find petitioner's submission of his application six months following the effective date of the AEDPA to be within a reasonable period. See Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc) (concluding that "the `reasonable time' after April 24, 1996, and the one-year statutory period coalesce"); Calderon v. U.S. District Court for the Central District of California, 112 F.3d 386, 389 (9th Cir. 1997) ("No petition filed on or before April 23, 1997 . . . may be dismissed for failure to comply with [the § 101] time limit"); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) ("prisoners whose convictions became final on or before April 24, 1996 must file their motions before April 24, 1997"); Duarte v. Hershberger, 947 F.Supp. 146, 149 (D.N.J. 1996) ("one-year grace period" under AEDPA found "appropriate in the habeas corpus context").
I. Factual Background A. The Juditz-Zimmerman Indictment
The Juditz and Zimmerman robberies were committed within a four-day period. In each instance, petitioner entered an apartment building with an unescorted woman, cornered his victim at knifepoint, and demanded money. Zimmerman's neighbor Everett Quinton ("Quinton") entered the building directly following the commission of the second robbery. Realizing what had occurred, Quinton pulled Zimmerman outside, followed by petitioner, who brandished his knife after them and threw Zimmerman's money on the ground before taking flight.
On March 19, 1986, both Juditz and Zimmerman were summoned to the police station to view a lineup supervised by Police Officer Richard Adkins. The witnesses waited together until each of them was brought individually to a room with a one-way mirror through which they observed the lineup. When asked whether they recognized anyone in the lineup, each witness identified petitioner. Thereafter, the witnesses were attended by Officer Harris to ensure that no conversation ensued among those who had made positive identifications. See Government Affidavit, Ex. D; Transcript of Wade Hearing ("Wade Tr."), dated February 25, 1987, at 34-35.
*2 In September 1986, petitioner moved to sever the two counts of the Juditz-Zimmerman indictment for separate trials pursuant to C.P.L. § 200.20(3), which provides that a trial court may sever nonmandatorily joined offenses at its discretion. On January 13, 1987, the court denied petitioner's motion. On February 25, 1987, a Wade hearing was conducted on the defense motion to suppress the victims' lineup identifications of petitioner. At this hearing, petitioner also renewed his application for a severance of the two-count indictment. The court denied petitioner's application for severance, his request to produce the complainants to testify at the hearing, and his motion to suppress the lineup identification.
B. The Friedman Indictment
On the morning of January 8, 1986, Charlotte Hitz ("Hitz") was confronted on the stairwell of her apartment building by petitioner, who put his hand on her shoulder. After perceiving that a knife was concealed beneath petitioner's jacket, Hitz fled the building and contacted the police. Moments later, Friedman was approached by petitioner in the lobby of the same building. Petitioner asked Friedman for cash and then pulled the knife out of his jacket. Friedman gave petitioner a single dollar before escaping outside. Petitioner was identified at the scene by both Hitz and Friedman; however, a police search of the building failed to produce petitioner's knife.
On the first day of petitioner's trial, a sworn juror notified the court that, due to a heavy snowstorm, he would be unavailable for service for an indefinite period. Before delivering initial instructions to the jury, the judge substituted the first alternate for the unavailable juror. At the outset of the trial, petitioner's counsel objected to the anticipated testimony of Charlotte Hitz. The judge overruled this objection.
II. Relevant Legal Standard
A state prisoner seeking federal habeas review of his conviction is first required to exhaust available state court remedies by informing the highest state court of competent jurisdiction of both the factual and legal premises of his constitutional claims. See 28 U.S.C. § 2254(b)(1Œ(A); Daye v. Attorney Gen. of the State of New York, 696 F.2d 186 (2d Cir. 1982) (en banc). Each of petitioner's current claims was raised in constitutional terms by his brief submitted on direct appeal direct appeal to the Appellate Division. Having been denied leave to appeal by the New York Court of Appeals, petitioner has exhausted available state court remedies, and his constitutional claims are thus reviewable by this Court.
In a federal habeas corpus proceeding, the petitioner bears the burden of proving a violation of his constitutional, rights by a preponderance of the evidence. "Habeas corpus review. is narrow and constrained. We may only overturn a state conviction when that conviction was obtained in violation of a federal constitutional right." Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 842 (2d Cir. 1997). Further, "[a] state trial court error does not rise to a federal constitutional violation sufficient for habeas relief . . . unless the petitioner can establish that the error had a `substantial and injurious effect or influence in determining the jury's verdict.'" Headley v. Tilghman, 53 F.3d 472, 474 (2d Cir. 1995) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). The reviewing court's "ultimate task is to determine the impact the [error] had or reasonably may have had upon the minds of the jury." Samuels v. Mann, 13 F.3d 522, 528 (2d Cir. 1993). I need not conduct such an analysis, however, because petitioner has failed to establish that any of the alleged errors in fact violated his constitutional rights.
III. Discussion A. The Wade Hearing
The function of a Wade hearing is to determine whether the pretrial identification administered by a police department was unduly suggestive. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
*3 Petitioner contends that because the trial judge prevented him from calling the complainants at the Wade hearing, he was denied his constitutional right to a fair trial. Petitioner argues that while the prosecution's case hinged entirely on lineup identifications, the Wade hearing testimony of Officers Adkins and McParland was incomplete as to the events surrounding those identifications. The officers were not able to testify as to who called the witnesses to the station, when either complainant arrived at the station house to view the lineup, whether they spoke to anyone prior to the lineup, or whether any suggestive events occurred prior to meeting with Officer Adkins. Petitioner claims that he was therefore denied the right to fully explore the circumstances surrounding the witnesses' identifications, and was forced instead to accept at face value the police officers' notably incomplete testimony.
A defendant challenging a pretrial identification procedure bears the ultimate burden of proving the procedure was unconstitutional. See People v. Berrios, 28 N.Y.2d 361, 321 N.Y.S.2d 884, 888, 270 N.E.2d 709 (1971). "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense." Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798, reh'g denied, 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). While this right is "a fundamental element of due process law," it is essentially a trial right "to present the defendant's version of the facts . . . to the jury so it may decide where the truth lies." Id. As such, under New York law, a defendant does not have an absolute right to call a complainant to testify at a Wade hearing. See People v. Chipp, 146 Misc.2d 847, 553 N.Y.S.2d 612, 613-14 (1990). The New York Court of Appeals has ruled that to afford every defendant this, right unconditionally "would enable defendants to harass identifying witnesses and to transform the hearing into a discovery proceeding," which is neither authorized nor intended by the legislature. Id. at 614. Absent some indication that the pretrial identification procedure employed was suggestive, a hearing judge may properly preclude a defendant from demanding the appearance and testimony of a witness at the Wade hearing. Id.
At the Wade hearing, the court indicated that it would entertain the petitioner's request to call the witnesses and possibly grant a mistrial if developments during the trial suggested that the pretrial identification procedure was tainted. See Wade Tr. at 56-58. Nothing ensued at trial to establish a basis for further investigation into the lineup identifications, and petitioner's counsel never moved to reopen the Wade hearings. Nor did petitioner move for a mistrial, in spite of the trial judge's indication that in the event that suggestiveness was established, a mistrial would be granted.
Petitioner's objection is predicated on the purely speculative assertion that the complainants' testimony at the Wade hearing might have revealed that something improper was said to them at the pretrial identification procedure. Petitioner has failed to establish either that the trial court abused its discretion in denying" him the opportunity to call the witnesses he requested, or that the prohibition from doing so fundamentally affected his constitutional guarantee of a fair trial. See People v. James, 159 A.D.2d 723, 553 N.Y.S.2d 443, 444 (2d Dep't 1990) ("hearing testimony of the police officers amply demonstrated that there was nothing unduly suggestive about the pretrial identification procedures, [thus court rejected] defendant's conjecture that by calling the complainant to the stand he may have been able to elicit information establishing otherwise [as] nothing more than speculation"). Here, petitioner's claim must fail, as there was no constitutional error.
B. Severance of Counts in a Single Indictment
*4 Petitioner contends that the court's discretionary rejection of his severance application amounted to an abuse of discretion that deprived him of a fair trial. "A certain amount of prejudice to a defendant is regarded as acceptable given the judicial economies that result from joinder." United States v. Carpentier, 689 F.2d 21, 27 (2d Cir. 1982). An examination of the record reveals no significant reason for severance of the indictments nor any substantial deleterious effect resulting from their joinder. Thus, petitioner has failed to establish any constitutional error.
Under New York law, discretionary joinder of separate criminal conduct is permissible where ". . . such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law." C.P.L. § 200.20(2)(c). The decision to grant a separate trial "is vested primarily in the sound judgment of the Trial Judge," People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 772, 543 N.E.2d 34 (1989), who may grant the severance motion in the interests of justice and for "good cause shown." C.P.L. § 200.20(3). "Good cause" may be established where the jury is likely to be unable to consider separately the proof as it relates to each offense, or where the defendant makes a convincing showing that he has important testimony to offer on one count, and a genuine need to abstain from testifying as to the second count. See C.P.L. § 200.20(3). While there is always a danger when multiple crimes are tried together that the jury may use the evidence cumulatively, in deciding whether to grant a severance the court must weigh the prejudice to the defendant caused by the joinder against the policy considerations of judicial economy and expedience in favor of joinder. See Mahboubian, 544 N.Y.S.2d at 772, 543 N.E.2d 34.
In order to prevail on the basis of a denied severance motion, a substantial showing must be made that petitioner "was so severely prejudiced by the joinder that he was denied a constitutional fair trial," and that a "miscarriage of justice" occurred. United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989); United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988). Moreover, "[m]erely establishing that a defendant would have had a better chance for acquittal at a separate trial is not sufficient to show substantial prejudice." Tutino, 883 F.2d at 1130.
Petitioner argues that while Juditz's identification of him was strong, as she had a longer time to view her assailant and her description of the assailant accurately resembled petitioner, the identifications made by Zimmerman and Quinton were weak, as they had only a short time to observe the assailant, and their independent descriptions of the perpetrator were inaccurate. As a result, petitioner claims there was a substantial likelihood that the jury commingled the evidence to arrive at his guilt on both counts, basing the convictions on the cumulative weight of the Evidence, which conclusion, he claims, would likely not have been reached had the evidence for each of the two counts been evaluated separately.
*5 I disagree. In light of the evidence that each of the three witnesses independently identified the petitioner in a lineup just a few days after the robberies occurred, petitioner has not made a significant showing of substantial prejudice resulting from the joinder merely by pointing to inaccuracies in the recollections of the two witnesses to the Zimmerman robbery. The trial court, therefore, did not improvidently exercise its discretion by denying petitioner's application to sever the two counts of First Degree Robbery under the Juditz-Zimmerman indictment. The adjudication of these two counts in a single trial did not constitute constitutional error.
C. Discharge and Replacement of Unavailable Juror
Petitioner claims that he was deprived of his constitutional and statutory right to trial with a jury of his choosing by the court's discharge and subsequent replacement of a sworn juror at the outset of his trial. According to petitioner, the fact that the juror was delayed did not provide sufficient basis for the discharge. Petitioner has failed to establish that the substitution resulted in any prejudicial impact on the outcome of his trial.
The trial court was notified by the absent juror himself that he would be unavailable for service for at least the duration of that day, and that his future availability was dependent on the cessation of a heavy snowstorm impeding his return to New York from Long Island. The juror's return was not imminent, nor could it be predicted with any greater certainty by making further inquiries. The discharge occurred prior to the initial charge to the jury or delivery of opening statements of a trial that was expected to last not longer than a single day. The trial court determined that the interests of efficient judicial administration would be best served by replacement of the absent juror with an alternate who was immediately available. This decision was in accordance with the requirement of N.Y.C.P.L. § 270.35(1) that if a sworn juror becomes "unavailable for continued service" at any time before a verdict is rendered, "the court must discharge such juror." See also People v. Page, 72 N.Y.2d 69, 531 N.Y.S.2d 83, 85, 526 N.E.2d 783 (1988) (While "a reasonable attempt to ascertain where the absent juror is, why the juror is absent, and when the juror will be present [should be made, n]o inflexible rule or catechism was contemplated or need be judicially crafted to determine the precise parameters of when a juror is unavailable under this statutory prescription").
In addition, the trial court also allowed the parties to be heard on this issue, and both ultimately consented to the discharge. After conceding, "[i]t's really in Your Honor's hands, Your Honor's control," petitioner's counsel initially requested of the trial judge, "I would prefer if you wait for that juror because I carefully selected each person on the jury." Tr. at 12. He quickly acquiesced to the replacement, however, admitting, "I carefully selected the alternates also but one of the original twelve is not available." Id. Having agreed at trial to the substitution, petitioner cannot now be heard to argue that a new trial should be granted on this ground.
*6 Finally, the Second Circuit has held that there is "no constitutional impediment" to the replacement of an unavailable juror when the date of the juror's return is uncertain. United States v. Hillard, 701 F.2d 1052, 1057 (2d Cir. 1983). There, the court determined that the essential question "is whether the appellants were prejudiced by the substitution of the alternate." Id. at 1058 (internal citations omitted)); see also United States v. Millar, 79 F.3d 338 (2d Cir. 1996). Here, where the discharge occurred prior to the commencement of trial and where petitioner's counsel did not indicate any dissatisfaction with the alternate juror, but, on the contrary, admitted that he had carefully selected the alternates, it cannot be said that petitioner was prejudiced by the replacement. Particularly in light of the unpredictability of the absent juror's return, as well as defense counsel's admission that the alternates had been carefully selected, the trial court's substitution of the alternate juror did not violate petitioner's constitutional right to a jury of his choosing,
D. Admission of Evidence of Events Prior to Robbery
Petitioner asserts that the trial court erroneously admitted Charlotte Hitz's testimony that he confronted her with a knife prior to robbing Leslie Friedman as "evidence of petitioner's prior `bad act' which served . . . no purpose other than to raise an inference that petitioner had a criminal disposition." Petitioner claims that he was therefore denied his constitutional right to a fair trial. "Discretionary state court evidentiary rulings normally do not rise to a constitutional level so as to be cognizable in a federal habeas corpus proceeding absent a showing that the challenged rulings . . . so infected the proceedings as to have rendered a petitioner's trial fundamentally unfair." Alvarez v. Scully, 833 F.Supp. 1000, 1005 (S.D.N.Y. 1993). Petitioner has failed to establish that the trial court's admission of the challenged testimony sufficiently prejudiced the outcome of his trial to constitute a violation of his constitutional rights.
New York State adheres to Federal Rule of Evidence 404(b), which proscribes admission of evidence of prior acts "to prove the character of a person in order to show action in conformity therewith," but allows introduction of such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, [or] plan." Fed.R.Evid. 404(b); see also Hernandez v. Senkowski, 1995 WL 151766 (E.D.N.Y. March 22, 1995) at *5-*6. Accordingly, New York courts have traditionally held admissible "[e]vidence of crimes not charged [when] introduced to complete a witness's narrative to assist the jury in its comprehension of the crime." People v. DeLeon, 177 A.D.2d 641, 576 N.Y.S.2d 344, 345 (2d Dep't 1991). Hitz's testimony that petitioner confronted her with a knife several minutes before the Friedman robbery in the building in which the robbery occurred was not introduced, as petitioner maintains, to demonstrate petitioner's criminal propensity. Rather, it was offered (1) as evidence that petitioner had an opportunity and might have been preparing to use a weapon in the commission of the subsequent robbery, (2) to broaden the scope of the narrative drawn by the victim, and (3) to support Friedman's testimony as to the presence of a knife.
*7 New York Penal Law § 160.15 defines Robbery in the First Degree as forcible stealing of property "when, in the course of the commission of the crime or of immediate flight therefrom," the perpetrator "threatens the immediate use of a dangerous instrument." N.Y.P.L. § 160.15. The New York Court of Appeals has long regarded as well-established the two rules "that evidence is relevant if it has `any tendency in reason to prove any material fact' and that all relevant evidence is admissible at trial unless admission violates some exclusionary rule." People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 11, 519 N.E.2d 808 (1987) (internal quotations omitted); see also DeLeon, 576 N.Y.S.2d at 345. Because no knife was found following Friedman's robbery, this was the element most subject to dispute at trial; thus, Hitz's testimony was highly relevant to a material element of the offense.
Petitioner argues that "the trial court failed to make either a timely legal determination that the prior `bad acts' evidence was probative of a legally relevant issue, or to engage in the requisite balancing of the probative value of the evidence against its grave potential for prejudice." Petitioner's Exhibit to Amended Petition at 2. This contention is belied by the record, which demonstrates that the objection to Hitz's testimony by petitioner's counsel was not overruled until the prosecutor had indicated that the testimony would concern a material element of the offense. See Tr. at 16-17. Petitioner has failed to show that the trial court's evidentiary ruling was erroneous; his claim of a resulting violation of due process is therefore without merit.
IV. Conclusion
For the foregoing reasons, petitioner's request for a writ of habeas corpus is denied. Additionally, because petitioner has failed to make a substantial showing that he was denied a constitutional right, a certificate of appealability is not warranted. See Reyes, 90 F.3d at 680.
So Ordered: