Opinion
97-CV-0106 (NAM/GLS).
December 9, 1999
MEISSNER, KLEINBERG LAW FIRM, OF COUNSEL, RICHARD A. FINKEL, ESQ., Attorney for Petitioner, New York, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York, Attorney for Respondent, Department of Law, Albany, New York. HON. WILLIAM J. FITZPATRICK, OF COUNSEL, VICTORIA M. ANTHONY, ESQ., District Attorney of Onondaga County, Submitting Brief on Behalf of Respondents, Syracuse, New York, KELDER, KANE LAW FIRM, Of Counsel, GARY T. KELDER, ESQ., Manlius, New York, For Respondents.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the habeas corpus petition on January 27, 1997. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a Memorandum of Law on April 28, 1997, and a Reply Memorandum on June 13, 1997. (Dkt. Nos. 8 and 10).
This case was initially assigned to Magistrate Judge Hurd and was reassigned to the undersigned on November 21, 1997. (Dkt. No. 11).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 6).
Petitioner complains of the judgment rendered against him on May 7, 1992, following a jury trial in Onondaga County Court, wherein he was convicted of Murder in the Second Degree (N.Y. Penal Law § 125.25) and Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01). Petitioner was sentenced to a term of imprisonment of twenty years to life.
The Appellate Division, Fourth Department, affirmed the conviction on June 9, 1995. People v. Yeung, 216 A.D.2d 953, 629 N.Y.S.2d 710 (1995). The New York Court of Appeals denied petitioner leave to appeal on October 11, 1995, People v. Yeung, 86 N.Y.2d 873, 659 N.E.2d 778, 635 N.Y.S.2d 955 (1995), and on reconsideration on July 30, 1996. People v. Yeung, 88 N.Y.2d 967, 670 N.E.2d 1353, 647 N.Y.S.2d 721 (1996).
On direct appeal, petitioner argued that he had been denied a fair trial by:
1) the submission to the jury of a verdict sheet containing inaccurate instructions as to [. . .] how the jury was to proceed to consider each charge and which omitted any reference to the justification defense; and,
2) the undue influence of a juror who, based on previous experience, introduced her own legal notions into the deliberation process, leading others to defer to her purported expertise and to depart from the law set forth in the charge, thereby tainting the verdict. See Pet.'r's Appellate Br., App. "H".
The Appellate Division held that petitioner failed to preserve the argument raised in Ground One, and found no evidence that petitioner was deprived of a fair trial by the undue influence or misconduct of one of the jurors.
This same case appears to have been printed in two locations. See also, People v. Yeung, 216 A.D.2d 875, 629 N.Y.S.2d 710 (1995), app. denied, 86 N.Y.2d 875, 659 N.E.2d 780, 635 N.Y.S.2d 957 (1995), on reconsideration, 88 N.Y.2d 971, 670 N.E.2d 1357, 647 N.Y.S.2d 725 (1996).
In his application, petitioner argues that the trial court's jury instructions and the submission of a confusing verdict sheet precluded the jurors from considering a justification defense, resulting in a deprivation of the right to due process of law under the Fifth and Fourteenth Amendments and the right to a trial by an impartial jury as guaranteed by the Sixth Amendment. See Pet., at ¶¶ 11(a)-11(d), and Supporting Aff., at ¶ 28.
Petitioner's Sixth Amendment claim is that the court's exclusion of justification from the verdict sheet resulted in a denial of the right to present a legal defense to a fair and impartial jury. See Pet., at 3 and Supporting Aff., at 3. Petitioner has not pursued his claim of undue and improper influence of a member of the jury, but claims that five or six jurors were "convinced" by two others that justification could not be considered since it was not on the verdict sheet. See Pet'r's Mem. of Law, at 11.
Respondent seeks dismissal of the petition on the grounds that petitioner has not met the standard imposed by 28 U.S.C. § 2244(d) and 2254(d). Respondent also argues that: 1) petitioner did not fairly present his claims to the state courts and thus, did not satisfy the exhaustion requirements for habeas corpus review; 2) petitioner procedurally defaulted on his claim regarding the verdict sheet; and, 3) that the petitioner's claims lack merit.
This section provides 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
For the following reasons, this court agrees with respondent and recommends that the petition be dismissed.
1. Facts
Petitioner's conviction resulted from a fatal shooting that occurred on August 20, 1991, in Baldwinsville, New York. The victim, Michael Wafer was sixteen years old.
Petitioner opened a Chinese restaurant in Baldwinsville in March of 1991. Michael Wafer worked as a delivery boy for three weeks in July of 1991. (T. 1641). Three days after petitioner loaned Wafer $400 to insure his car for deliveries, Wafer quit his job. At the time he stopped working, Wafer owed petitioner $370. (T.1653, 1658). Petitioner was unsuccessful in his attempts at contacting Wafer by telephone. (T. 715-716; 1662-1665).
On August 12, 1991, petitioner, accompanied by Lisa Hourihan and Melanie Benoit, drove to Wafer's house to collect the outstanding loan money. (T. 718; 1666). Wafer's friend, Frankie DeLaurie came running out of the house, shoved the petitioner and called him racially offensive names. (T. 722, 866; 1671-1672). Petitioner said that he wanted to talk, not fight. (T. 722). Wafer then came outside and told petitioner that he would shoot him if he ever came near his (Wafer's) property again. Petitioner responded that he would shoot Wafer first. (T. 723; 793; 868; 1741).
Ms. Hourihan worked as a cashier at the Chinese restaurant and was also a friend of the victim. Ms. Benoit was Ms. Hourihan's friend.
According to Hourihan, DeLaurie did not strike, punch nor kick petitioner. (T. 725).
Petitioner, Hourihan and Benoit went to the Baldwinsville police seeking help in recovering the money. The police informed them that the address was outside their jurisdiction (T. 730), and suggested Small Claims Court. (T. 880, 907). When they returned to the restaurant, the petitioner said that he would talk to his partner Wong about getting the money back. (T. 732; 1345).
Petitioner was tried with co-defendant Wong but at the close of the proof, Wong was granted a trial order of dismissal and all charges against him were dismissed.
Petitioner drove to New York City and on August 19, 1991, returned with Wong, and two other Chinese men. (T. 1346, 1356). On August 20, 1991, restaurant employee Xin Lin heard petitioner ask Wong to accompany him to Wafer's house to ask for the money. Wong told petitioner not to bring the gun. Petitioner responded that he would not show the gun when he asked for the money. (T. 1349; 1376).
Petitioner, Wong, and the two other men from New York City drove to Wafer's house and honked the horn repeatedly before driving away. (T. 835-836). Next, they drove by DeLaurie's house on VanNess Road. (T. 1207). Wafer's car was parked out front. (T. 1186). DeLaurie testified that as he was walking towards his car, he saw the petitioner get out of his van and another "oriental male" get into the driver's seat. DeLaurie told petitioner to get off his property, and petitioner responded "Mike, not you." (T. 1050).
At that point, Wafer and another friend, Jason Pennario, came outside. Wafer approached the petitioner and petitioner asked for his money. When Wafer responded that he did not have it, petitioner and Wafer started pushing each other. (T. 1051-1052; 1169). DeLaurie retrieved a sledgehammer from the garage. (T. 1053). DeLaurie testified that he was about fifteen to twenty feet away holding the sledgehammer on his shoulder. (T. 1060-1061).
According to Pennario, DeLaurie was about thirty feet away when he was holding the sledgehammer. Pennario testified that DeLaurie did not swing the sledgehammer at petitioner or say anything as he held it. (T. 1183).
At that point, DeLaurie noticed that petitioner held a silver gun in his left hand. (T. 1056-1057). Petitioner was waiving the gun saying that he wanted his money. (T. 1177). DeLaurie returned the sledgehammer to the garage and got a shovel. (T. 1061). Wafer had nothing in his hands except a cigarette. (T. 1084).
Pennario heard Wafer say that he did not believe the gun was real and saw Wafer push petitioner. (T. 1170). Petitioner held out the gun, pulled the trigger, and Pennario heard a "click." (T. 1173). Pennario then heard Wafer tell petitioner that he knew the gun was not real. Petitioner returned to the van, opened the driver's side, and reached behind the seat. (T. 1065; 1174). He loaded a clip into the gun and walked towards Wafer. (T. 1065). DeLaurie and Pennario testified that they ducked behind the camper and they discussed whether the gun was real. (T. 1066-1067; 1179). They heard a gunshot and saw Wafer fall to the ground. Petitioner ran to the van. (T. 1067-1080).
Neighbor Ilean Deacons was outside her home when she heard a gunshot. She immediately looked in the direction of the sound and saw a young man with his arm extended, holding what looked like a gun. (T. 523). Neighbor Marie Rawls was looking out her window when she saw a man get out of a van and walk towards the three boys. Rawls saw the petitioner and Wafer pushing each other and informed her husband that Wafer was getting beaten up. (T. 1208). Mrs. Rawls saw the man walk back to the van and then back to Wafer. (T. 1209). According to Rawls, the two were standing an arm's length apart when the petitioner pushed Wafer, and Wafer pushed petitioner. She saw them push each other once or twice and then they just stood there. (T. 1210). The man then walked back to the van and Mrs. Rawls saw Wafer grab his chest and collapse. (T. 1210). Mrs. Rawls did not see DeLaurie with a weapon and testified that DeLaurie was not near the petitioner and Wafer. (T. 1215).
Petitioner testified that he purchased the gun in New York City after the incident on August 12th because he feared Wafer was going to kill him. (T. 1678-1680).
Petitioner testified that he was kicked by DeLaurie and punched by Wafer on that date and that Wafer had threatened to shoot him. (T. 1674; 1677; 1740).
According to the petitioner, DeLaurie threatened to kill him on August 20, before he retrieved the sledgehammer from the garage. (T. 1710-1711). Petitioner also testified that DeLaurie swung the sledgehammer at him, and that Pennario chased him with a pickax. (T. 1711-1713). Petitioner claimed that he feared for his life as he ran to the van, and that he did not believe he had time to leave the scene. (T. 1715; 1730-1732). Instead, petitioner grabbed the gun, put the clip in, pulled it back twice, turned and pointed the gun at the three boys. (T. 1716, 1733). DeLaurie and Pennario fled but Wafer said that he did not believe the gun was real and did not move. (T. 1716, 1734). Petitioner testified that the gun was loaded and cocked as the petitioner approached Wafer. (T. 1734, 1762). According to the petitioner, Wafer grabbed his hand, there was tugging back and forth and then a shot was fired. (T. 1717). Petitioner testified that he did not mean to shoot Wafer. (T. 1753).
2. Exhaustion and Procedural Default
Petitioner argues in his petition that the trial court's jury instructions and the submission of a confusing verdict sheet precluded the jurors from considering a justification defense, resulting in a deprivation of the right to due process of law under the Fifth and Fourteenth Amendments, and the right to a trial by an impartial jury as guaranteed by the Sixth Amendment. The verdict sheet submitted by the court did not list justification as an option for finding petitioner "not guilty" of murder in the Second Degree. See Pet., at ¶ 11(d).
The Appellate Division, Fourth Department held that the issue was not preserved for appellate review and declined to exercise its discretionary power to review the claim in the interest of justice. People v. Yeung, 216 A.D.2d 953, 629 N.Y.S.2d 710 (1995).
At the trial, petitioner did not raise any objection to the verdict sheet. He first presented this claim to the state courts in a motion to set aside the verdict in which he argued two grounds for relief: 1) improper submission of a verdict sheet that omitted any reference to the justification defense; and, 2) improper and undue influence of a juror. See Motion to Set Aside the Verdict, dated April 20, 1992, App. D. Petitioner relied on the affidavits of three jurors who affirmed that they deferred to the opinion of another juror, who told them that they could not consider self-defense since it was not included on the verdict sheet. Juror Redfield claimed that another juror told her that she could not seek clarification from the judge on that issue. See Pet'r's Motion to Set Aside the Verdict and Affidavits of jurors Nelson, Edward and Redfield, App. D. The State submitted an answering affidavit. See App. E. The court heard oral argument and denied the motion without a hearing. See Sentencing Minutes, at 31-38, App. F.
Respondent first argues that the petitioner did not present his federal constitutional claims to the state courts. See Resp't's Memorandum, at 4-5. It is well settled that a petitioner seeking relief in federal court must exhaust available state remedies. Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). Additionally, a petitioner must fairly present his claims so that the state court has the opportunity to decide any federal constitutional issues. Finally, the substance of the federal claims must have been presented to the highest available court of the state. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).
In his appellate brief, petitioner argued in general terms that he was deprived of the right to a fair trial. Petitioner cited only state law, without any reference to federal law or the United States Constitution. However, petitioner argues that he satisfied the standard set forth in Daye v. Attorney General, 696 F.2d 186, 192-194 (2d Cir. 1982) (en banc) because he: 1) relied on state cases that employed a constitutional analysis in like fact situations; and, 2) alleged a pattern of facts that is well within the mainstream of constitutional litigation.
A state defendant may fairly present the constitutional nature of his claim to the state court without citing "chapter and verse" of the Constitution by: (a) relying on pertinent federal cases employing constitutional analysis; (b) relying on state cases employing constitutional analysis in like fact situations; (c) asserting the claim in terms so particular that they call to mind a specific right protected by the constitution; or (d) alleging a pattern of facts that is well within the mainstream of constitutional litigation. Daye, 696 F.2d at 192-194. However, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 2726, 2777, 74 L.Ed.2d (1982) (citations omitted).
Since this court recommends that the petition be dismissed as procedurally defaulted pursuant to independent and adequate state grounds, it is not necessary to decide the exhaustion issue.
Federal habeas corpus review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule, unless the petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2547, 2565, 115 L.Ed.2d 640 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, as did the Fourth Department in this case, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995).
The only "cause" cited by petitioner is a claim that the trial court submitted the verdict sheet to the jury "without having notified or obtained the consent of defense counsel." See Aff. of Richard A. Finkel at ¶ 8 (attach. to Pet.). However, this claim was dispelled by the trial court during oral argument on petitioner's motion to set aside the verdict. See Sentencing Minutes [hereinafter "S."], at 29-38, App. F. The court noted that just after it referred the jurors to the verdict sheet (Court Exh. A), the attorneys approached the bench whereupon an off-the-record discussion was held. (S. 31; T. 1992-1993). The court noted that five copies of the verdict sheet had been made available to counsel at the bench, and found it "hard" to understand how counsel could "look [the court] in the eye and say [he was] denied [the] opportunity [to review the verdict sheet]." Counsel agreed that the verdict sheet was not kept from him, and responded that "we just didn't see it because we just assumed that the justification defense would be on there." (S. 31-32). The court also noted that many hours passed while the jurors deliberated after the verdict sheet was provided, during which time the jurors raised questions regarding justification and intent. (S. 33). Based upon this record, it is apparent that counsel had the opportunity to review the verdict sheet and object if he so chose. As such, this court would reject any claim that cause for the procedural default is established as a result of the court depriving counsel of the opportunity to review the verdict sheet.
This Court notes that counsel had no objection to the court orally re-instructing the jury on the elements of intentional murder and self-defense rather than granting its request for a "set of guidelines to refer to during deliberations." (T. 2010-2019).
Although cause may be demonstrated if the procedural default is a result of constitutionally ineffective assistance of counsel, petitioner does not argue in his petition that trial counsel was ineffective for not objecting. See Bossett, 41 F.3d at 829; Murray, 477 U.S. at 488, 106 S.Ct. at 2645, Nor did petitioner file a petition for a writ of error coram nobis on the grounds of ineffective assistance of appellate counsel for failing to argue that trial counsel was ineffective. The exhaustion doctrine generally requires that a federal habeas corpus petitioner present an ineffective assistance of counsel claim to the state courts before it can be used to establish cause for procedural default. Murray, 477 U.S. at 489, 106 S.Ct. at 2646. In any event, even if the petitioner had raised this argument, he would have been unable to satisfy the two prong test for constitutional error, as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
To prevail on a Sixth Amendment right to counsel claim, petitioner "must prove that counsel's representation `fell below an objective standard of reasonableness' judged by `prevailing professional norms.'" Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (citation omitted) (quoting Strickland, 466 U.S. at 688,104 S.Ct. at 2064. He would also have to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104. S.Ct. at 2068; Jackson, 162 F.3d at 85. It cannot be said that counsel acted unreasonably by not objecting to the verdict sheet. As is evident from counsel's closing, counsel's strategy was to establish that the murder was not intentional. Notably, counsel did not request that any lesser included offenses be charged. See S. 45, Exh. F. Given that Wafer was unarmed, that petitioner was not followed to the van, and petitioner's own testimony that he did not mean to shoot Wafer, counsel's strategy may have been "all or nothing," i.e., if the jurors voted "not guilty" on intentional murder, they would not reach the justification issue. An unsuccessful trial strategy does not render counsel's assistance ineffective.
Since petitioner has not established cause for his procedural default, and the record does not suggest that he is actually innocent, this court need not address whether he suffered any prejudice as a result of the procedural default. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). As such, this court recommends that the petition be dismissed.
Witnesses testified that Wafer was unarmed and that DeLaurie was not in close proximity to petitioner when petitioner returned to the car to retrieve the clip. Moreover, even if the petitioner had felt threatened by DeLaurie holding the sledgehammer, no one followed petitioner to his van. Petitioner could have retreated by simply driving away. Instead, he retrieved the clip, loaded the gun, cocked it and approached Wafer.
It is apparent from the jury notes that the jurors deliberated on the element of intent. (T. 2001-2002). By finding petitioner guilty of intentional murder, the jurors apparently did not credit petitioner's testimony that he did not mean to shoot Wafer (T. 1753), and that the gun went off as the two were "tugging" back and forth. A review of the record reveals that the evidence presented, including petitioner's own testimony, does not support a justification defense.
In any event, petitioner's claim lacks merit. New York Criminal Procedure Law (C.P.L.) § 310.20(2) authorizes a court to submit a written verdict sheet to the jury "containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon." There is no reference to inclusion of defenses. Morales v. Keane, 1994 WL 38668, at *4 (S.D.N.Y. Feb. 4, 1994). Consent of the parties is required when the verdict sheet references statutory terms or elements. See C.P.L. § 310.30. See also, People v. Damiano, 87 N.Y.2d 477, 482 and n. 1, 663 N.E.2d 607, 640 N.Y.S.2d 451, 454 and n. 1(1996); People v. Sotomayer, 79 N.Y.2d 1029, 594 N.E.2d 925, 584 N.Y.S.2d 431 (1992) (A deliberating jury may be provided with a written list itemizing the offenses charged and the possible verdicts; inclusion of anything more requires the parties consent). In this case, the court submitted an unannotated verdict sheet that listed only the crimes charged and possible verdicts. This was not error under New York law. See e.g., People v. Nimmons, 72 N.Y.2d 830, 831, 526 N.E.2d 33, 530 N.Y.S.2d 543 (1988).
Moreover, it is not this court's task to determine whether the verdict form was in compliance with state law. Belgrave v. Greiner, 1999 WL 1007350, at *5 (E.D.N Y Aug 31, 1999). Even if the jury instruction or form were erroneous, federal habeas corpus relief would not be warranted unless it "so infected the entire trial that the resulting conviction violates due process." Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Furthermore, omissions or incomplete instrutions are less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977). When a complaint is raised about the completeness of a verdict form, it is appropriate for a court to consider the argument in light of the trial judge's full charge to the jury. Belgrave, 1999 WL, at *6 (citations omitted). The record in this case reveals that, on three occasions, the court thoroughly instructed the jury on the law of self-defense and justification. (T. 1967-1968; 2002-2005; 2011-2019). Counsel had no objection after the court's final oral re-instruction. (T. 2011-2020; and S. 5-7 Exh. F). Viewing the jury charge at issue in this case as a whole, this court would not find that the court's omission of justification from the verdict sheet so infected the entire trial that the resulting conviction violates due process.
Finally, the affidavits of the three jurors are inadmissible to the extent that they recount how information allegedly provided by one of the jurors "affected the thinking and voting of individual jurors or the deliberations of the jury as a whole, including the tally of votes." Bibbins v. Dalsheim, 21 F.3d 13, 17 (1994) (citations omitted); see also, Fed.R.Evid. 606(b). Since a finding of self-defense is unsupported by this record, petitioner cannot establish "a substantial or injurious effect or influence in determining the jury's verdict." Id. at 16.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN DAYS (10) within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.
It is further ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.