Opinion
99 Civ. 4477 (KMW)(FM)
January 23, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
I. Introduction
In this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Pedro Santiago ("Santiago") challenges his conviction on one count of Murder in the Second Degree, in violation of New York Penal Law section 125.25, after a trial, in Supreme Court, Bronx County, before Justice D avid Stadtmauer and a jury. (See Pet. ¶¶ 1, 4, 6). On January 17, 1996 Justice Stadtmauer sentenced Santiago to a prison term of twenty-five years to life. (Id. ¶¶ 2-3).
Santiago appealed his conviction to the Appellate Division, First Department contending that: (1) he was deprived of due process by the admission of testimony concerning an unduly suggestive showup; (2) an erroneous Sandoval ruling unfairly prevented him from testifying; (3) he was deprived of a fair trial because of the trial judge's improper response to two jury notes; and (4) his sentence was excessive. (Affidavit of Assistant District Attorney Allen H. Saperstein, sworn to October 22, 1999 ("SA"), ¶ 4 Ex. 1 (Petitioner's Brief to the Appellate Division ("Pet'r's Br."))). On June 25, 1998, the Appellate Division unanimously rejected these claims and affirmed Santiago's conviction. People v. Santiago, 251 A.D.2d 239, 674 N.Y.S.2d 684 (1st Dep't 1998).
On July 15, 1998, Santiago's counsel wrote to the Court of Appeals seeking leave to appeal. (See SA Ex. 4). The letter indicated that Santiago's Appellate Division brief was enclosed and requested that the Court "consider and review all issues outlined in defendant-appellant's brief." (Id. at 2). Thereafter, on August 7, 1998, counsel sent a second letter to Judge Carmen Beauchamp Ciparick discussing Santiago's lineup and Sandoval claims in greater detail. (Id. Ex. 5). Although the second letter did not address Santiago's jury note claim at length, it did refer Judge Ciparick to Point III of Santiago's appellate brief, which addressed this point, as well as the relevant pages of the trial transcript. (Id. at 4). On November 30, 1998, Judge Ciparick denied Santiago's application for leave to appeal. People v. Santiago, 92 N.Y.2d 985, 683 N.Y.S.2d 767 (1998).
Santiago's habeas petition incorporates by reference all four claims that he advanced before the Appellate Division. For the reasons that follow, the petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Santiago should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Background
A. Evidence at Trial
On September 21, 1993, at approximately 11:00 p.m., Pedro Mercado ("Pedro") and Marden Omar Cortorreal ("Cortorreal") left a grocery store in the Bronx where they both worked. (Tr. 452, 454). They walked together until they arrived at 2512 University Avenue, where Pedro lived. (Id. at 454-55). Cortorreal watched from the front door as Pedro entered the building and walked to his apartment. (Id. at 484).
"Tr." refers to the transcript of the Santiago trial. "H." refers to the transcript of the pretrial Mapp/Wade hearing.
As Pedro was proceeding down the hall to his apartment, his wife, Rosario Mercado ("Rosario"), opened the door and urged him to "hurry up" because some "bad" people were following her husband. (Id. at 207). Moments later, Santiago grabbed Pedro from behind, issued an order which Rosario did not hear very well, and pushed Pedro inside the apartment. (Id. at 206, 291). Rosario then hid behind the entry door as the two men struggled. (Id. at 207).
Subsequently, Rosario heard a shot and saw her husband lying on the floor. (Id. at 208). She then asked him what was wrong. (Id.). After he indicated that he had an itch, she ripped off his shirt, but did not see his wounds. (Id.).
During the struggle, two or three additional shots were fired. (Id. at 212). At some point after the first shot, Santiago's gun fell to the floor, and Pedro kicked it away as Santiago attempted to retrieve it. (Id. at 209, 313). Santiago then grabbed himself, uttered something that Rosario could not hear clearly, and ran out the door. (Id. at 213, 347).
At trial, Rosario identified the brown hat, green pants, green shirt, and boots that Santiago was wearing during the attack. (Id. at 221-26). Although she did not see any accomplice, Rosario testified that she heard footsteps and believed that Santiago was not alone. (Id. at 210-11).
As these events were unfolding, Cortorreal remained outside the apartment building. (Id. at 455). As he watched Pedro walk toward his apartment door, a man standing nearby told him not to move "or I will shoot" and then to "get in to the building before I kill you." (Id. at 455-56). At that point, Cortorreal peered through an entryway window and saw two people struggling to push Pedro into the apartment. (Id. at 456). After Cortorreal heard a shot, the man who had been threatening him ran away. (Id.). When Cortorreal again looked inside, he saw one of the attackers walking out with a gun in his hand. (Id.). As that man left, he turned around and fired his gun. (Id.). Cortorreal then saw Santiago standing at the door and heard him say, "I'm wounded. Wait for me," before leaving the vicinity. (Id. at 457). Once the assailants fled, Cortorreal entered the building to check on Pedro. (Id. at 459).
After the police arrived, they took Cortorreal to Jacobi Hospital to view a suspect. (Id. at 463-64). Cortorreal recognized Santiago as the man wounded at the scene of the crime. (Id. at 465). While at the hospital, he also noticed a green polo shirt that Santiago had been wearing on the floor next to Santiago's stretcher. (Id. at 466).
At trial, the source of the bullet that killed Pedro was a hotly contested subject. Cortorreal testified that when he entered the Mercado apartment, Rosario show ed him a pistol which he put "to the side" in a location that he initially did not recall. (Id. at 562). As he was leaving for the hospital, however, he remembered that he had placed the weapon in the bathroom, and instructed a man named Domingo Lopez to give it to the police. (Id. at 463, 562, 564). At some point after midnight, a detective who had returned to the building retrieved the gun — a fully-loaded .38 caliber Smith and Wesson revolver. (Id. at 116-17, 122-23, 140-41). Cortorreal testified that he failed to tell the police about the gun when they first arrived at the apartment because they were in a rush to take him to the hospital. (Id. at 564). In addition, on cross-examination, he denied that he had attempted to hide the gun, stating that it belonged to neither him nor his friends. (Id. at 565).
A police ballistics expert testified that a .38 caliber bullet removed from Pedro's body during an autopsy was "consistent" with the type of gun recovered from the crime scene. (Id. at 634, 638). However, because of the bullet's poor condition, he could not determine whether the bullet was fired from that weapon. (Id. at 639). As the expert conceded, the bullet "could have come from this weapon or another weapon of this type." (Id. at 634).
B. Wade/Mapp Hearing
Prior to trial, Justice Stadtmauer held a Wade/Mapp hearing to determine the admissibility of Cortorreal's out-of-court identification and the green shirt recovered from the hospital emergency room. At the hearing, Detective James Slattery testified that he arrived at the scene of the crime at approximately 11:30 p.m. (H. 4). From his conversations with witnesses, he quickly learned that one of the perpetrators — described by Cortorreal as a dark skinned man wearing a green shirt — had been shot during the struggle. (Id. at 5, 42). Having learned that a man in a nearby building was claiming that he had been shot, Slattery took Cortorreal and two other witnesses there. (Id. at 5, 37-38). By the time they arrived, however, the injured man had been taken to the hospital. (Id. at 6).
See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
En route to the hospital, Slattery informed the witnesses that they were going to the hospital so that they could determine whether the man who had been shot was one of the perpetrators. (Id. at 44). W hen they arrived, Santiago was being treated in the emergency room for his gun shot wound. (Id. at 47). Santiago's shirt had been removed and he was surrounded by doctors and other medical personnel. (Id. at 54-55). Medical records indicate that Santiago had two IVs which had been started by emergency services employees and a chest tube on the right side of his chest. (Id. at 81). Hospital personnel also had removed two pints of blood from his right chest cavity. (Id.). Although Santiago w as not formally under arrest, a police officer was stationed nearby. (Id. at 46-47, 52-53).
At approximately 11:55 p.m., Slattery asked two of the eyewitnesses to view Santiago. (Id. at 6-7). The first witness, Cortorreal, stared intently at Santiago for about thirty seconds, after which he announced, "Yes, that's him." (Id. at 64-66). Cortorreal then noticed Santiago's blood-soaked green shirt at the foot of the bed. (Id. at 7, 70). Apparently without any prompting, he volunteered, "There's the green shirt that the defendant was wearing." (Id. at 7). A second witness, Jose Ortiz, identified Santiago as someone he had seen running north on University Avenue holding his chest. (Id. at 7-8). Ortiz did not testify at trial. The third eyewitness never had an opportunity to view Santiago at the hospital because medical personnel objected to any further interference with their work. (Id. at 72).
Following these identifications, Slattery told the officer standing guard in the emergency room that Santiago was under arrest and that his clothing should be vouchered. (Id. at 8).
Slattery was the only witness called at the hearing. Following his testimony and oral argument, Justice Stadtmauer held that testimony concerning Cortorreal's out-of-court identification of Santiago could be introduced at trial. (Id. at 127-28). In an oral decision, the judge reasoned that a prompt showup was desirable because the police had reason to believe that Santiago's life was in danger, and that, if he died, they might never learn whether he was one of the perpetrators. (Id. at 125-26). The judge further concluded that the prosecution had established that "the police did not engage in misconduct, that the identification procedure was completely reliable and not in the least manner suggestive and that . . . the seizure of the clothing pursuant to this lawful arrest was entirely appropriate." (Id. at 127).
C. Jury Notes
Over the course of their two days of deliberation, the jury sent Justice Stadtmauer five notes. The third of these notes read as follow s:
QUESTION TO JUDGE:
IF THERE IS REASONABLE DOUBT ON THE PHYSICAL EVIDENCE PRESENTED, CAN WE BASE OUR DECISION ON COMMON SENSE AND LOGIC BASED ON WHAT WE CAN DEDUCT ACTUALLY OCCURRED (LEGALLY)?
YES OR NO?"
(SA Ex. 8). Having received the note late in the evening, Justice Stadtmauer dismissed the jury for the night and postponed discussion of the note's contents until the following morning. (Tr. 927). At that time, defense counsel argued that the note should be read as an indication that the jurors had "a reasonable doubt based on the physical evidence." (Id. at 930). Conceding that it was not entirely clear what the jurors' concern was, he urged the court simply to reread its original reasonable doubt instruction. (Id.) The prosecutor disagreed, observing that "[t]here [was] nothing in the note that says that they have a reasonable doubt as to the guilt or non-guilt of the defendant. They're concerned over a piece of physical evidence. . . ." (Id. at 932). Accordingly, he suggested that the judge tell the jury only that common sense and logic should always be used. (Id.).
In response, Justice Stadtmauer indicated that he would incorporate both suggestions into his supplemental instruction. (Id. at 933). When the jury returned, after reading the note, the judge stated:
[M]y instruction to you is that if you have a reasonable doubt as to one portion of the evidence, and you are asking about physical evidence, I assume that is an exhibit, whatever that exhibit was, that should not stop you from examining all the other evidence in the trial. . . .
(Id. at 934). The judge also reminded the jury of his earlier instruction that the evidence consisted of all of the exhibits, testimony, and stipulations, and that they should "examine all that evidence." (Id.). The supplemental instruction continued as follows:
Now, if after examining all the evidence, you have a reasonable doubt as to the guilt of the defendant on any particular count, then you must find him not guilty on that count. On the other hand, after taking all of the evidence in to consideration, if you find that the People have nevertheless proven the defendant's guilt even despite your doubt on that one particular piece of physical evidence, then you must find him guilty.
Now, common sense and logic should always be used in evaluating the facts of the case. However, you may not conjecture, and what I mean by that is, you may not consider anything outside of the evidence. So, whatever conclusions you arrive at must be based on the evidence that was presented here at trial.
(Id. at 934-35). Defense counsel objected to this instruction, arguing that it should have more effectively communicated the idea that the jurors could acquit Santiago if they had "a reasonable doubt about a piece of physical evidence that is intrinsically part of this case. . . ." (Id. at 943).
Before the court was able to give its instruction, the jury sent a fourth note which requested, in part, a "[p]olice report and/or testimony read back regarding first-on-scene evidence gathered, e.g. redirect from Detective[s] Leddy [and] Colon." (SA Ex. 9). Evidently without first consulting counsel, Justice Stadtmauer told the jury that the note was confusing because Detectives Acosta and Colon were the first to arrive on the scene, stating with respect to the latter detectives, "I don't know if that's exactly what you want or if you wanted something in addition to that." (Id. at 936). The judge then directed that the testimony of Detectives Acosta and Colon be reread, telling the jurors that they could send another note if they wanted further information. (Id. at 936-37). After the readback of Detective Acosta's testimony began, how ever, the judge interrupted, stating that "in rereading your note, I see that you are asking for testimony regarding first on the scene evidence gathered, meaning you want to hear, I assume . . . the testimony of the police officers who gathered some evidence from the scene. Police Officer Acosta did not gather any evidence." (Id. at 937). Following an off-the-record discussion with counsel, the judge then asked the jurors to send a clearer note, but added "since you are talking about evidence recovered, I also will call your attention to People's Exhibit 13, which has a list of items that were recovered. . . ." (Id. at 938).
Once the jury had retired to continue its deliberations, defense counsel objected to the judge's handling of the fourth note because the defense had established on cross-examination that Officer Acosta did not gather any evidence from the scene. (Id. at 947)("That's very crucial to the defense, that no gun was recovered when uniformed went there."). Counsel also contended that the readback "went so far" that the jury should also have heard the cross-examination. (Id.) The judge disagreed with this characterization, noting that "we were nowhere finished with the direct. Just a few questions were read." (Id.). Defense counsel also objected to the Court's reference to Exhibit 13 because it was not "up to [the court] to marshal the evidence for them and tell them they can find it." (Id. at 948).
The jury's final note asked for Detective Leddy's testimony concerning his police report, "especially regarding description of defendant's clothing given by Mrs. Mercado." (SA Ex. 10). Shortly after this testimony was read, the jury returned its verdict of guilty. (Tr. 951).
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that 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) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id., 529 U.S. at 409, 120 S.Ct. at 1521. This standard does not require that all reasonable jurists agree that the state court was wrong. Id., 529 U.S. at 409-10, 120 S.Ct. at 1521-22. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)) (emphasis added). Section 2254(d)(1) only applies, however, "with respect to claims adjudicated on the merits in state court." Williams, 529 U.S. at 412, 120 S.Ct. at 1523.
Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams, 529 U.S. at 389, 120 S.Ct. at 1511. As discussed below, however, Santiago has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, and he is therefore not entitled to federal habeas relief.
B. Exhaustion of Remedies
Pursuant to 28 U.S.C. § 2254(b)(1)(A) and (B), a habeas petition brought by a state prisoner ordinarily may not be granted unless the petitioner has exhausted all of the remedies available to him through the state courts, or there is no state corrective process available to the petitioner, or circumstances render that process ineffective to protect the petitioner's rights. Here, Santiago plainly had an effective process available to him through the state statutes governing appeals in criminal cases. See N.Y. Crim. Proc. L. § 450.10 (McKinney 2001). Accordingly, to satisfy the exhaustion requirement with respect to a particular federal claim, Santiago must show that he presented the substance of "the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal citation omitted).
"A federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba; rather, there are a number of ways in which a petitioner may present such a claim, including
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194.
The respondent contends that Santiago originally asked the Court of Appeals to "consider and review all issues outlined in [his Appellate Division] brief," but then sent a second letter which failed to address the severity of his sentence or the trial court's Sandoval rulings, thereby forfeiting further review of these claims. (Resp't's Mem. at 6). In his Appellate Division brief, however, Santiago unquestionably couched his Sandoval claim in constitutional terms. See Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) ("[I]f a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to state court."). Thereafter, Santiago's first letter to the Court of Appeals specifically sought leave to appeal "all issues outlined in defendant-appellant's brief." (SA Ex. 4 at 2). The second letter, which expressly indicated that it had been submitted "to supplement the Appellate Division briefs," (id. Ex. 5 at 1), cannot fairly be read as an abandonment of any of the claims addressed in Santiago's earlier letter. Accordingly, contrary to the respondent's suggestion, Santiago's Sandoval claim has been exhausted.
On the other hand, Santiago's claim concerning his excessive sentence was not phrased in constitutional terms in either his brief to the Appellate Division or his letters to the Court of Appeals. This claim consequently is unexhausted and cannot serve as a basis for habeas relief.
C. Hospital Identification
Santiago's first contention is that he was deprived of due process by the trial court's decision to permit testimony concerning Cortorreal's out-of-court identification of him, which he alleges occurred under improperly suggestive circumstances. (Pet. ¶ 12(A)).
Testimony concerning a pretrial identification must be suppressed when the procedures are so suggestive that they create "a very substantial likelihood of irreparable misidentification." United States v. Mohammed, 27 F.3d 815, 821 (2d Cir. 1994) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 1247 (1968)). However, the focus of the inquiry is on the possibility of misidentification, not police conduct, because a suggestive procedure "does not in itself intrude upon a constitutionally protected interest." Wray v. Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (quoting Manson v. Brathwaite, 432 U.S. 98, 113 n. 13, 97 S.Ct. 2243, 2252 n. 13, 53 L.Ed.2d 140 (1977)). Thus, "even a suggestive out-of-court identification will be admissible if, when viewed in the totality of the circumstances, it possess sufficient indicia of reliability." Mohamm ed, 27 F.3d at 821 (quoting United States v. Simmons, 923 F.2d 934, 950 (2d Cir. 1991). See also Manson, 432 U.S. at 114, 97 S.Ct. at 2253 ("reliability is the linchpin in determining the admissibility of identification testimony").
When the police employ a suggestive identification procedure, the factors that should be considered to determine the likelihood of misidentification include "[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." Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). "A good or poor rating with respect to any one of these factors will generally not be dispositive. . . . In each case, the factors must be assessed in light of the totality of the circumstances. . . ." United States v. Concepcion, 983 F.2d 369, 377-78 (2d Cir. 1992).
Santiago suggests that Cortorreal's original identification of him was improperly suggestive for several reasons. First, while the witnesses were en route to the hospital a police detective informed them that they were going there for a possible identification of an injured suspect. (Pet'r's Br. at 33, 37). Second, a police officer was standing guard near Santiago. (Id.). Third, at the time of the identification, Santiago was receiving intensive medical treatment and w as surrounded by medical personnel. (Id. at 33). Finally, a green shirt covered in blood was lying nearby. (Id.) Santiago argues that these circumstances collectively caused Cortorreal to assume that he was a participant in the crime, rather than an innocent passerby. (Id. at 34).
Although showups are generally disfavored, they do not warrant the automatic exclusion of testimony concerning the resulting identifications. See, e.g., United States v. Bautista, 23 F.3d 726, 729 (2d Cir. 1994) ("[W]e will exclude a pre-trial identification only if it was both produced through an unnecessarily suggestive procedure and unreliable."); People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 348 (1991) ("[P]rompt showup identifications by witnesses following a defendant's arrest at or near the crime scene have been generally allowed and have never been categorically or presumptively condemned.").
In Bautista, the Second Circuit recognized that a prompt showup at the scene of a crime serves "a very valid function: to prevent the mistaken arrest of innocent persons." Bautista, 23 F.3d at 730 (quoting appellant's brief). Indeed, the court affirmed the conviction of a defendant who was identified by a confidential informant at night while the defendant was in the custody of the police, illuminated by a flashlight, and wearing handcuffs. Id.
Both state and federal courts have affirmed convictions in which testimony concerning out-of-court identifications at hospitals was received despite the suggestiveness of the surrounding circumstances. For example, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the defendant was taken to a hospital where he was identified by a victim of the crime who was being treated for life-threatening wounds. Although the defendant was the only black male in the room and was handcuffed to a police officer, the Supreme Court affirmed the conviction, noting the need to identify the attacker quickly and the impossibility of a jail house lineup in these circumstances. Id., 388 U.S. at 295, 301-02, 87 S.Ct. at 1969, 1972-73. See also Joshua v. Maggio, 674 F.2d 376, 377-79 (5th Cir. 1982) (approving identification made at hospital where both victims and their alleged assailants were being treated); People v. Guiterrez, 270 A.D.2d 184, 707 N.Y.S.2d 7, 8 (1st Dep't 2000) ("Given the interest of securing a prompt and reliable identification, the showup conducted approximately one and one-half hours after the incident at the hospital where defendant was being treated for injuries w as appropriate."); People v. Conyers, 176 A.D.2d 340, 574 N.Y.S.2d 776, 777 (2nd Dep't 1991) (affirming conviction despite showup in emergency room where defendant was lying wounded on stretcher).
Cortorreal was asked to identify Santiago approximately one hour after he had an opportunity to view the wounded person leaving the Mercados' apartment building at close range. In addition, his description of that man [as a "dark skinned-man with a green shirt who himself had been shot," (H. 42)], matched Santiago perfectly. Finally, when Cortorreal identified Santiago, he expressed a high level of certainty. Given these circumstances, there plainly is no basis for this Court to conclude that the trial court's decision to admit testimony concerning Cortorreal's out-of-court identification was based on "an unreasonable determination of the facts" or "an unreasonable application of clearly established federal law."
D. Jury Notes
Santiago's petition also alleges that the trial judge deprived him of a fair trial by responding to two jury notes "in ways which were partial to the prosecution" "without prior notice to defense counsel." (Pet. ¶ 12(C)). Habeas relief on the basis of an erroneous charge to a state court jury may be granted only when "the alleged errors were so serious as to deprive defendant of a federal constitutional right." Morales v. Miller, 41 F. Supp.2d 364, 377 (E.D.N.Y. 1999) (citing United States ex rel. Smith v. Montayne, 505 F.2d 1355, 1359 (2d Cir. 1974). See also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed. 368 (1973) ("burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutionality of a state court's judgment is even greater than the show ing required to establish plain error on direct appeal"). Although supplemental instructions require special consideration due to their prominence in the jury's mind, see Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir. 1982), they must also be considered in the context of the entire charge. See United States v. Tillem, 906 F.2d 814, 826 (2d Cir. 1990).
Turning first to the jury's inquiry regarding reasonable doubt, Santiago argues that the court ignored the only two possible interpretations of the note: that the jury had a reasonable doubt as to his guilt based on the physical evidence or that the jury doubted its reliability. (Pet'r's Br. at 57-58). Santiago also complains that the response to the note communicated the trial judge's own pro-prosecution beliefs because it assumed that the jury's doubt related solely to a single exhibit and failed to remind the jury that a reasonable doubt could be based on a lack of evidence. (Id. at 59-60).
Read as a whole, however, the supplemental instruction was even-handed and responsive to the question posed. In its note, the jury suggested that it might have a "reasonable doubt on the physical evidence presented" and inquired whether it could "base [its] decision on common sense and logic based on what we can deduct actually occurred. . . ." (SA Ex. 8). Since the prosecution's case consisted of both physical and testimonial evidence, it was reasonable for the judge to remind the jurors of their duty to consider all of the evidence in order to determine what actually had occurred. Rather than conveying partiality, this instruction was consistent with the court's original instruction that the defendant had to be acquitted if the jurors had a reasonable doubt after reviewing all of the testimony and other evidence. (Tr. 883).
Santiago also objects to the judge's response to the note requesting a "[p]olice report and/or testimony read back regarding first-on-scene evidence gathered, e.g. redirect from Detective[s] Leddy [and] Colon." (SA Ex. 9). He contends that the "jury wanted information related to the first-on-scene officers," (Pet'r's Br. at 62), not, as Justice Stadtmauer eventually concluded, information concerning the first evidence gathered on scene. (Tr. 937) (emphasis added). In his view, by interrupting the readback, the court prevented the jury from rehearing testimony indicating that the gun recovered from the Mercado apartment was not turned over to the first officers at the scene. (Pet'r's Br. at 62-63). Santiago argues that the prejudicial effect of this omission was magnified when the judge referred the jury to Exhibit 13, which listed all of the items that actually were gathered by the Crime Scene U nit. (Id. at 63).
Trial judges have considerable discretion in determining how to respond to jury requests for the rereading of trial testimony. See United Sates v. Escotto, 121 F.3d 81, 84 (2d Cir. 1997). See also United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990) ("The trial judge is in the best position to sense whether the jury is able to proceed with its deliberations, and he has considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion."). A fair reading of the jury's note in Santiago's case suggests that it wanted to hear the testimony of the officers who collected the first "on-scene evidence," but was confused as to their names. It consequently was not an abuse of discretion for Justice Stadtmauer to interrupt the rereading of Detective Acosta's testimony once he realized it was not responsive to the jury's request. Moreover, even if the judge's interpretation of the note was wrong, there plainly was no prejudice to Santiago since the judge encouraged the jurors to send a follow-up note clarifying which witnesses' testimony they wished to hear.
The trial judge also did not commit error of constitutional magnitude by reminding the jury of Exhibit 13, which listed all the evidence that was gathered, not just the evidence collected by those first on the scene. "[R]eversal for submitting material in addition to that requested is required only where the submission might indicate, or be fairly taken by the jury to indicate, prejudice of the judge against the defendant. . . ." United States v. Gentile, 525 F.2d 252, 261 (2d Cir. 1975). Here, none of the judge's remarks can reasonably be read to communicate such personal prejudice.
E. Sandoval Ruling
Santiago also contends that he was deprived of a fair trial by a Sandoval ruling "so prejudicial that it prevented appellant from presenting crucial testimony." (Pet. ¶ 12(B)). "However, it is well established that when a defendant does not testify, a court does not have an 'adequate non-speculative basis upon which to assess the merits of the claim,' and, therefore, the reviewing court is procedurally barred from considering a challenge to the trial court's ruling." Herrera v. Artuz, 2001 WL 392553, at *3 (S.D.N.Y. April 17, 2001) (quoting Peterson v. LeFerve, 753 F. Supp. 518, 521 (S.D.N.Y. 1991)). See also Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 464, 83 L.Ed. 443 (1984) ("Requiring that a defendant testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to 'plant' reversible error in the event of a conviction.").
F. Sentencing
Tracking his Appellate Division brief, Santiago last contends that, because he was not alleged to have been the shooter and had essentially a nonviolent criminal history, the "imposition of the maximum permissible sentence was excessive." (Pet. ¶ 12(D)). As noted above, this claim is unexhausted. Moreover, Santiago's concession that his sentence was within the range permitted under New York Law is its death knell. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.").
IV. Conclusion
For the foregoing reasons, Santiago's habeas petition should be dismissed. Furthermore, because Santiago has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).