Opinion
01 CIV. 0001 (LTS) (JCF)
October 3, 2002
MR. DARKELL ROBINSON, Mid-Orange Correctional facility, Warwick, New York, Plaintiff Pro Se.
ELIOT SPITZER, Esq., ATTORNEY GENERAL OF THE STATE OF NEW YORK, By Mona Jha, Esq., Assistant Attorney General, New York, NY, Attorneys for Defendant.
OPINION AND ORDER
Pro se petitioner Darkell Robinson ("Robinson" or "Petitioner") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Robinson was convicted after a jury trial in New York state court, on January 23, 1995, of assault in the second degree and robbery in the second and third degrees, and was sentenced to concurrent terms of eight years to life on the second-degree robbery charge and three and one-half to seven years on each of the third-degree assault and third-degree robbery charges. In his petition for a writ of habeas corpus (the "Petition"), Robinson argues that his rights to due process were violated in connection with his state criminal proceedings because the evidence adduced at trial was insufficient to support the physical injury element of the second-degree assault and robbery charges, and because there was insufficient proof that an in-court identification of Petitioner by the complaining witness had a basis independent of a "show-up" that was ruled unduly suggestive by the state court.
A show-up is the presentation of one suspect to an eyewitness for identification. 1 Wayne R. Lefave Jerold H. Israel, Criminal Procedure § 7.4(f) (1984).
For the reasons set forth below, Robinson's Petition is denied.
THE STATE COURT PROCEEDINGS
"Show-up" and Identification Testimony
At a pretrial hearing before Justice Patricia Anne Williams of the New York State Supreme Court, New York County, the arresting officer, Newton Harvey ("Officer Harvey") testified to having observed a struggle between Petitioner and the complainant, one Harold Evans ("Evans") and to having pursued Petitioner. Officer Harvey further testified that, after apprehending Petitioner, he brought him back to Harvey's unmarked police car and placed him, handcuffed, at the rear of the car. According to Officer Harvey's testimony at the hearing, Evans then approached the car and identified Petitioner as the person who had taken his property. (Transcript of January 9, 1995 Proceedings, People v. Robinson ("1/9 Tr.") at 5-26.) Justice Williams granted Robinson's motion to suppress evidence of the "show-up" identification, holding that the People had failed to sustain their burden of negating undue suggestivity in the identification encounter and noting that they had proffered no evidence that the complainant had seen Petitioner before the challenged identification. Id. at 42-45, see also Transcript of Proceedings before Justice Michael Obus ("Tr."), at 12.
The transcripts of the independent source hearing and trial in this matter before Justice Michael Obus are paginated sequentially.
At the People's request, Justice Obus thereafter held a pretrial hearing on January 19, 1995, on the question of whether there was sufficient evidence, apart from the show-up, of a source of Evans' identification of Petitioner to support admission of an in-court identification. At that hearing, Evans testified that he had observed Petitioner's face, hair and clothing as Petitioner fled their initial encounter. Tr. at 154-57, 165. Evans again identified Petitioner as the perpetrator at the hearing and asserted that he was able to identify' Petitioner based on the initial incident as opposed to the showup. Tr. at 167-68. Justice Obus held, following cross-examination and arguments of counsel, that Evans' testimony was credible and that the People had "met their burden of proving by clear and convincing evidence that the in Court identification of the defendant by Mr. Evans has a source independent of the show up identification." Accordingly, Justice Obus ruled that Evans would be permitted to make an in-court identification at the trial. (Tr. at 174.)
The Trial Evidence
At Petitioner's trial, Evans testified that Petitioner had accosted him from behind and fled with certain of Evans' property following a struggle. He testified that he had observed Petitioner's physical appearance at the time of the incident, and identified Petitioner in court as his assailant. Tr. at 199-202, 204-05, 207-08. Officer Harvey testified that he and his two partners, Hendrix and Dentron, were sitting in an unmarked car across the street at the time of the incident. (Tr. at 229-30.) The officers left their car and chased Petitioner through the subway station and then back out onto the street. (Tr. at 205-06, 220, 231, 235, 237-38, 256-57.) During the pursuit, Officer Harvey slipped on the subway stairs and injured his ankle, but continued to chase Petitioner. (Tr. at 246-47, 263.) The officers chased Robinson into a parking garage, where they found him crouched between two cars. (Tr. at 240, 242.) The officers arrested Petitioner and brought him to the patrol car. (Tr. at 242, 264.) Officer Harvey then returned to the garage and discovered, on the floor in the area where Petitioner had been found, Evans' cardholder, driver's license, and family photos. (Tr. at 243, 264.)
After Robinson had been placed under arrest, Officer Harvey experienced pain in his left ankle and the top part of his left foot. (Tr. at 247.) Officer Harvey received medical treatment and x-rays at New York Hospital around 2:00 a.m. on August 5, 1995. (Tr. at 248.) The treating physicians gave Officer Harvey Advil (a nonprescription pain reliever) and instructed him to keep his foot and ankle bandaged and elevated. (Tr. at 248.) Officer Harvey missed two days of work and convalesced at home. (Tr. at 248-49.) When he returned to work, his injury necessitated a change in his duties for a period of approximately three months. (Tr. at 250.)
Verdict
On January 23, 1995, the jury found Robinson guilty of robbery in the second and third degrees, and assault in the second degree. (Tr. at 366-369.) Justice Obus denied a defense motion to set aside the verdicts on the second degree assault and robbery convictions, finding that the jury's determination that the physical injury element of those crimes had been established was supported by substantial evidence. (Transcript of February 8, 1995 Sentencing ("Sent. Tr.") at 15.)
Robinson's Direct State Court Appeals
Robinson appealed his convictions to the New York State Supreme Court, Appellate Division, First Department, contending that his conviction for second-degree robbery and second-degree assault violated his due process rights because there was insufficient evidence to support them. Specifically, Robinson argued that the People had failed to prove his guilt of second-degree robbery and second-degree assault because there was insufficient evidence to support a finding that Officer Harvey had sustained a physical injury, such injury being an element of the crimes of second-degree robbery and second-degree assault. (Robinson's Appellate Br. at 22-33, Ex. B to Jha Aff.) Robinson further argued, with respect to each of the counts of conviction, that his federal and state constitutional rights to due process had been violated in that the State had failed to establish by clear and convincing evidence that Evans' in-court identification of Petitioner was independent of the show-up. (Id. at 34-37.)
On October 19, 1999, the First Department affirmed Robinson's conviction, holding that "[t]he verdict was based on legally sufficient evidence . . . [and] the element of physical injury was properly established." People v. Robinson, 697 N.Y.S.2d 253, 253 (1st Dep't. 1999). The First Department, moreover, found that the record supported "the hearing court's finding that the testimony of the complaining witness established an independent source for his identification of defendant." Id.
The New York Court of Appeals denied Petitioner leave to appeal on December 7, 1999. People v. Robinson, 94 N.Y.2d 866 (1999).
DISCUSSION
Prior to filing a petition for a writ of habeas corpus relief under 28 U.S.C. § 2254, a petitioner must exhaust all available state remedies. See 28 U.S.C.A. § 2254(b) (West 1994 Supp. 2002). A petitioner must also allege that he is in state custody in violation of the Constitution or a federal law or treaty. See 28 U.S.C. § 2254 (a) (West 1994 Supp. 2002). Robinson has satisfied both of these prerequisites. He presents to this Court the same two issues he raised in the direct appeal from his conviction. The Appellate Division's affirmance of his conviction and the Court of Appeals' denial of leave to appeal satisfy section 2254's exhaustion requirement. See Williams v. Smith, 591 F.2d 169, 171 (2d Cir. 1979), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979); Jackson v. Walker, No. 96 Civ. 1064 (JGK), 1997 WL 97832 at * 2 (S.D.N.Y. March 7, 1997). Furthermore, each of the claims set forth in Robinson's petition was argued to the state courts in federal constitutional terms.
Under 28 U.S.C. § 2254 (d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts may only grant habeas corpus relief when the state court judgment "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d) (West 1994 Supp. 2002); see Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court interpreted the "contrary to" and "unreasonable application" clauses of section 2254(d) as having independent meanings.Id. at 404. A state court decision is contrary to 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." Id. A state court decision employs "an unreasonable application" of clearly established Supreme Court law if the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id. at 413. "[C]learly established law as determined by the Supreme Court" refers to that Court's own holdings at the time of a relevant state court decision. Id. at 412.
First Claim: Insufficiency of Evidence of Physical Injury
Robinson's first claim for habeas corpus relief is that his due process rights under the Fourteenth Amendment were violated because there was insufficient evidence that Harvey was physically injured, an element of the crimes of second-degree robbery and second-degree assault. Specifically, Robinson contends that Officer Harvey lied about the extent of his injury and that the mere twisting of Officer Harvey's ankle does not constitute "physical injury" within the meaning of the statute. Robinson asserts that the injury suffered by Officer Harvey "does not even come close to being as serious" as injuries that have been held by New York state courts to be sufficiently serious to sustain second-degree assault and robbery convictions. (Petr.'s Br. at 2.) Petitioner further argues that the Appellate Division failed to recognize inconsistencies in the State's arguments.
New York Penal Law section 160.10 provides in relevant part: "A person is guilty of robbery in the second degree when he forcibly steals property and when: . . . (2) In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a) Causes physical injury to any person who is not a participant in the crime;. . . ." N.Y. Penal Law § 160.10(A)(2)(a) (McKinney 1998).
New York Penal Law section 120.05 provides in relevant part: "A person is guilty of assault in the second degree when: . . . (3) With intent to prevent a . . . police officer . . . from performing a lawful duty, . . . he causes physical injury to such . . . police officer. . . ." N.Y. Penal Law § 120.05 (West 1997 and Supp. 2002).
Robinson argues that several factual inconsistencies in the State's evidence warrant a finding that his conviction was not supported by the evidence; specifically, Petitioner contends that, had Officer Harvey twisted his ankle, he would not have been able to continue chasing Robinson (Pet'r Aff. at 3), that Officer Harvey's medical records reflected no finding of deformity or swelling and noted only mild tenderness of the foot (Pet'r Aff. at 2 Exs. 4, 5), and that Officer Harvey's arrest report indicated that no officer had been injured (Pet'r Aff. at 4 Ex. 7).
"[T]he standard for appellate review of an insufficiency claim place[s] a 'very heavy burden' on the appellant." United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (quoting United States v. Losada, 674 F.2d 167, 173 (2d Cir. 1982), cert. denied, 457 U.S. 1125, 1125 (1982)), cert. denied, 462 U.S. 1108, 1108 (1983). The federal court is to determine if the "jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [the court] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor." Id.; see United States v. Salerno, 868 F.2d 524, 530 (2d Cir. 1989) (courts reviewing habeas petitions must "view the evidence in the light most favorable to the government and construe all possible inferences in its favor" and determine if the record is "so totally devoid of evidentiary support that a due process issue is raised"), cert. denied, 491 U.S. 907 (1989). The court must look to state law to determine the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 324 n. 16 (1979); Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (courts must consider whether "there was sufficient evidence for a jury to find that the prosecution proved the substantive elements of the crime as defined by state law.")
Viewing the evidence in the light most favorable to the prosecution, the Court finds that Petitioner has failed to sustain his burden. The record demonstrates, as the First Department noted, that the jury had evidence sufficient to find that Officer Harvey "suffered both an impairment of physical condition and substantial pain."See Robinson., 697 N.Y.S.2d at 253. According to New York Penal Law section 10.00(9), "'[p]hysical injury' means impairment of physical condition or substantial pain." N.Y. Penal Law § 10.00(9) (McKinney 1997). "[T]he jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), cert. denied, 490 U.S. 1109, 1109 (1989)); accord Roldan v. Artuz, 78 F. Supp.2d 260, 269 (S.D.N.Y. 2000) (court may not reassess jury determinations of witness credibility); Franza v. Stinson, 58 F. Supp.2d 124, 139 (S.D.N.Y. 1999) (determination of witness credibility is solely in the hands of the jury). "Federal habeas courts are not free to reassess the fact specific credibility judgments by juries. . . . On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution." Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1999) (citation and internal quotation marks omitted). Nor do Petitioner's arguments concerning inconsistencies between Officer Harvey's booking report and line-of-duty-injury report provide an appropriate basis for rejecting the jury's verdict. A court reviewing a habeas petition must defer to the assessments of the weight of the evidence . . . made by the jury. Frazier v. New York, 187 F. Supp.2d 102, 109 (S.D.N.Y. 2002) (citing Herrera v. Collins, 506 U.S. 390, 401 (1993)).
New York state courts interpreting the statute have found injuries similar to those claimed by Officer Harvey sufficient to meet the definition of physical injury. See, e.g., People v. Sullivan, 728 N.Y.S.2d 320, (4th Dep't 2001) (noting that, had appellant preserved issues for review, court would have found that victims suffered physical injury as defined by Penal Law § 10.00(9) where medical records indicated civilian complained of severe pain to elbow and officer testified to severe pain which caused difficulty in walking and resulted in hospital treatment and release from duty for 1-1/2 days); People v. Curry, 605 N.Y.S.2d 410, 410 (2d Dep't 1993) (police officer suffered requisite physical injury where he went to the hospital for treatment of injuries, missed two days of work as a result of struggle with defendant, and felt pain ten months after the injury occurred); People v. Pagan, 160 A.D.2d 284, 285 (1st Dep't 1990) (sufficient evidence of physical injury presented where victim's account of experience of pain was supported by hospital records showing she had x-rays and a shot); People v. Williams, 537 N.Y.S.2d 400, 400-01 (4th Dep't 1989) (sufficient evidence of physical injury where police officer received medical treatment and testified to extreme pain, and treating physician indicated that victim was prevented from performing his regular duties).
Robinson has thus failed to demonstrate that his conviction of second-degree assault and robbery was "contrary to, or involved an unreasonable application of, clearly established Federal law" or "was based on an unreasonable determination of the facts in light of the evidence presented" at trial. 28 U.S.C.A. 2254(d) (West 1994 Supp. 2002).
Second Claim: In-Court Identification
Petitioner also contends that his conviction violates his Fourteenth Amendment due process rights because Evans' identification of him in court was tainted by the prior show-up. Respondent, citing Justice Obus' independent source findings, argues that the in-court identification was not impermissibly tainted and that, even if permitting Evans to identify Robinson in court violated his due process rights, the error was harmless.
An in-court identification is admissible as long as the pre-trial identification procedures were not so unreliable so as to raise a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 106-07 (1977); see Raheem v. Kelly, 257 F.3d 122, 135 (2d Cir. 2001) ("a suggestive procedure 'does not in itself intrude upon a constitutionally protected interest' if it did not contribute significantly to the identification of the defendant," citing Manson, 432 U.S. at 228). Where a pre-trial identification has, as here, been found unduly suggestive, due process requires that the court determine whether the proffered identification evidence has independent reliability. Raheem v. Kelly, 257 F.3d 122, 135 (2d Cir. 2001).
In determining whether a witness's in-court identification of the defendant has reliability independent of the unduly suggestive identification procedures, the court looks generally to the factors set out in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), taking into account [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.' . . . A good or poor rating with respect to any one of these factors will generally not be dispositive, . . . and in each case, the question of independent reliability must be assessed in light of the totality of the circumstances. . . .Id. at 135 (citations omitted). The record reflects that Justice Obus considered the relevant factors in evaluating the reliability of the proffered evidence, including Evan's opportunity to view the perpetrator at the time of the crime, his degree of attention, the accuracy of his description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. (Tr. at 172-74.) See People v. Robinson, 697 N.Y.S.2d at 253.
The Appellate Division, First Department affirmed the trial court's finding that Evans "in-court identification of Robinson had a basis independent of the show-up, noting that Evans' opportunity for observation was sufficient, particularly since the [trial] court properly credited [Evans'] testimony that during the incident he noticed defendant's distinctive appearance." Robinson, 697 N.Y.S.2d at 253. The state court decisions that Evans' in-court identification was reliable independent of the show-up thus were not inconsistent with the Supreme Court's determinations in Neil v. Biggers and Manson v. Brathwaite, and were not contrary to, nor an unreasonable application of, federal law as determined by the Supreme Court.
Even if the Court were to determine that the in-court identification was unreliable, any error was harmless in light of other trial evidence connecting Robinson to the crime. Cf. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (error is not harmless if it had a "substantial and injurious effect or influence in determining the jury's verdict"). In determining whether the erroneous admission of evidence was harmless, the court should consider "the importance of the witness' wrongly admitted testimony, and the overall strength of the prosecution's case." Frazier, 187 F. Supp.2d at 113-14 (quoting Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)). "In assessing importance, a court should consider whether that testimony was material to the establishment of a material fact or whether it was instead corroborated and cumulative." Id. (citation and internal quotation marks omitted).
The trial record includes Officer Harvey's testimony that he had observed Petitioner struggling with Evans and had seen Petitioner run into the subway. (Tr. at 231.) Officer Harvey testified that he only lost sight of Petitioner during the pursuit for "a second," when Robinson ran into a parking garage. (Id. at 240-43, 261-64.) Officer Harvey also testified that he observed Robinson to be a Black male, wearing his hair in dreadlocks and that he wore a striped shirt. (Id. at 233.) The record further shows that Evans' stolen property was recovered on the floor of the parking garage, at or near the area where Robinson was apprehended by Officers Harvey and Hendrix. Based on these facts, admission of Evans' in-court identification, even if the identification was unreliable, was harmless error, as Officer Harvey's identification of Robinson and the evidence recovered at the parking garage rendered cumulative Evans' identification. See Jamison v. Grier, No. 01 Civ. 6678 (AGS) (AJP), 2002 WL 100642 (S.D.N.Y. Jan. 25, 2002) (police identification and the fact that defendant was caught "red-handed" rendered witness identification unnecessary and cumulative); United States v. Modica, 663 F.2d 1173, 1182 (2d Cir. 1981) (misconduct by prosecution deemed a harmless error where "the case against appellant was overwhelming"), cert. denied, 456 U.S. 989 (1982); Dunnigan v. Keane, 1937 F.3d 117, 130 (2d Cir. 1998) (challenged evidence was harmless error in light of the strength of prosecution's case).
CONCLUSION
For the foregoing reasons, Robinson's petition for a writ of habeas corpus is denied. Petitioner may not appeal this order to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 1994 Supp. 2002). A certificate will be granted, "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds Petitioner will not be able to sustain this burden.
The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.