Opinion
01 Civ. 9378 (GEL)
August 2, 2002
William Varela, pro se, for petitioner.
Robert T. Johnson, District Attorney, Bronx County (Allen H. Saperstein, Yael V. Levy, Assistant District Attorneys, of Counsel), for respondent.
OPINION AND ORDER
William Varela, a New York State prisoner, seeks habeas corpus. challenging his conviction for murder and resulting sentence of twenty-two years to life in prison. Petitioner argues that the prosecutor engaged in misconduct that denied him a fair trial, by improperly attempting to refresh the recollection of a defense witness in what petitioner claims was a deliberate effort to suggest to the jury that petitioner had confessed to the crime. The petition will be denied.
Initially, petitioner also asserted that he had received ineffective assistance from his trial counsel. However, he withdrew that claim with the permission of the Court before the State was required to respond.
BACKGROUND
Petitioner was convicted of murdering his long-time friend, Jaymee Mendez, by shooting him in the back. At trial, a witness testified to an altercation between Mendez and petitioner a few days before the killing, the victim's sister testified that petitioner told her later that day that Mendez was "gonna get it," and the victim's brother reported that petitioner had told them he would kill Mendez, but that he had not taken the threat seriously. (Levy Aff. Ex. 2 at 5-6.) Five witnesses, including the sister and brother of the victim, and all acquainted with both Mendez and petitioner, testified that they had seen petitioner walk up behind Mendez on a Bronx street, pull a pistol from his waistband, and shoot Mendez in the back. (Id. at 6-7.)
Several of these witnesses were impeached either by prior statements made to the police that implicitly or explicitly denied knowing who the shooter was, and/or by prior convictions, promises that their cooperation with the prosecution would help them with pending charges, and prior drug use.
The defense called no eyewitnesses to the shooting, but did offer testimony from a friend of petitioner's, Kevin Fermin, who had been in the area at the time. Fermin testified that he had been inside a building smoking marijuana with two of the prosecution's professed eyewitnesses when he heard a gunshot, left the others inside, and ran outside to see Mendez already on the ground; that he saw a third prosecution witness inside the building selling crack at the time of the shooting; and that he saw a fourth emerge from a building after the shooting and ask "what happened?" While Fermin testified that he did not see the shooting and did not know where petitioner was at the time, his testimony contradicted several key prosecution witnesses' accounts of their whereabouts at the time of the shooting.
Like several of the prosecution witnesses, Fermin was impeached with his criminal record; at the time of his testimony, he was serving lengthy concurrent state and federal sentences for running a cocaine-distribution organization.
During cross-examination of Fermin, the prosecutor asked whether petitioner had ever told Fermin that he had killed Mendez. When Fermin said no, the prosecutor marked a document for identification and showed it to Fermin. The following colloquy ensued:
[Prosecutor]: Now, does that refresh your recollection that Billy Varela told you that he shot Jaymee Mendez on August 22, 1994?
[Defense Counsel]: Objection, your Honor.
[Fermin]: No.
[Defense Counsel]: He doesn't need his memory refreshed. He said he didn't tell him that.
[The Court]: Does that change your testimony?
[Fermin]: No, sir.
(Tr. 559-60.) Neither the record before this Court nor the available state court records disclose the contents of the document. It was never put into evidence, shown or read to the jury, nor, apparently, ever mentioned again during the trial.
The jury returned a verdict of guilty, and petitioner's conviction was affirmed by the Appellate Division. People v. Varela, 708 N.Y.S.2d 80 (1st Dep't 2000). Leave to appeal to the Court of Appeals was denied. People v. Varela, 95 N.Y.2d 939 (2000). Petitioner argued to both courts that the prosecutor's actions denied him due process.
DISCUSSION
There is no question that the prosecutor's question was improper under the law of evidence. "The rule as to refreshing recollection is plain. . . . it must be shown that a witness' present recollection is exhausted before it is permissible to attempt to refresh such recollection by extraneous means or documents." People v. Reger, 213 N.Y.S.2d 298, 307 (1st Dep't 1961). Here, the witness gave no indication that his memory was faulty or that he could not recall whether petitioner had made the statement suggested by the prosecutor; he simply denied that such a statement had been made.
As petitioner recognizes, however, he must show more than a deficiency in the prosecutor's trial practice skills to prevail on a petition for a writ of habeas corpus. In assessing a claim that prosecutorial misconduct amounted to constitutional error, "[t]he relevant question is whether the prosecutors' [action] `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
The Appellate Division's rejection of petitioner's argument was hardly an "unreasonable application" of this clearly established constitutional principle — which it would have to be for this Court to grant habeas relief. 28 U.S.C. § 2254(d)(1). The incident in question takes up a few lines in a trial transcript of nearly seven hundred pages. As the Appellate Division correctly observed:
Defendant was not prejudiced when the prosecutor, without first establishing a lack of recollection, showed a defense witness a document and asked him if it refreshed his recollection. The contents of the document were never revealed to the jury, the witness stated that the document would not change his testimony, and the court's charge at the end of the case, which the jury is presumed to have followed, instructed the jury to decide the case based only on the evidence.708 N.Y.S.2d at 81. Under these circumstances, it cannot be maintained that the jurors were "so infected with unfairness" by this momentary and (from the jurors' perspective) cryptic event that they could not fairly and objectively perform the straightforward task of assessing the credibility of the five professed eyewitnesses in light of Fermin's contradictory account and the various impeaching factors.
The behavior of the participants in the trial at the time of the incident further supports the Appellate Division's finding that the fairness of the trial was unaffected. Defense counsel objected to the prosecutor's question, but Fermin had already answered it. Rather than sustain the objection and strike the answer, which was helpful to the defense and reaffirmed Fermin's testimony, the trial judge sensibly gave the witness yet another opportunity to emphasize that his testimony was not affected by the prosecutor's effort. The trial then moved on to other issues. Defense counsel did not move for a mistrial, make a record of the nature of the document, or accuse the prosecutor of attempting to mislead the jury or other intentional misconduct. The reactions of the trial judge and defense counsel thus confirm the conclusion that the incident was of little moment at trial, and cast doubt on petitioner's retrospective effort to make something more of it.
Indeed, it could be argued (and was argued by the prosecution in the Appellate Division) that petitioner's failure to articulate an intentional misconduct argument at trial waived the point. But since the Appellate Division addressed the argument on the merits, any procedural default has been ignored and the matter is properly before this Court on habeas review. Rosenfeld v. Dunham, 820 F.2d 52, 54 (2d. Cir. 1987).
Nor was this incident part of a "pervasive" pattern of misconduct or of a "persistent trial strategy." Blissett v. LeFevre, 924 F.2d 434, 441 (2d Cir. 1991). In the Appellate Division, petitioner's appellate counsel built an omnibus prosecutorial misconduct argument by packaging the question objected to here with two remarks made during summation and the introduction of evidence that certain prosecution witnesses had no criminal records. But these other actions, to the extent they are objectionable at all, were hardly the sort of inflammatory, clearly deliberate, and highly prejudicial conduct that could amount to a denial of due process.
In summation, the prosecutor stated that the "trial is a search for truth," and that "to do justice . . . would be to convict" petitioner. Such comments are hardly inflammatory and could not have distracted the jury from its mission of determining whether petitioner was proved guilty beyond a reasonable doubt. And in light of the extensive impeachment of those witnesses who did have criminal records, eliciting explicit testimony on the part of those who did not, where the defense had placed the witnesses' credibility in issue in its opening statement, cannot have had an unfairly prejudicial effect. None of these actions were even objected to at trial, and the Appellate Division rejected petitioner's arguments about them as "unpreserved," noting that "[w]ere we to review these claims, we would reject them." 708 N.Y.S.2d at 81.
Accordingly, the petition for habeas corpus is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
Concurrent with his petition for habeas corpus, petitioner moved for the appointment of counsel. Since the issue petitioner seeks to raise was thoroughly set forth in the extremely professional brief of appellate counsel, and reiterated in a well-researched and well-written pro se brief submitted to this Court, and since that issue is clearly meritless, the motion for appointment of counsel is denied.
SO ORDERED.