Opinion
98 Civ. 55 (JGK)
May 5, 2000
OPINION AND ORDER
Petitioner David Byrd petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 8, 1995, judgment was rendered in the New York State Supreme Court, New York County, convicting the petitioner, after a jury trial, of two counts of robbery in the first degree and two counts of robbery in the second degree. The petitioner was sentenced to concurrent terms of four to twelve years imprisonment. The Appellate Division, First Department unanimously affirmed the conviction,see People v. Byrd, 657 N.Y.S.2d 683 (1st Dep't 1997), and on August 11, 1997, the New York Court of Appeals denied leave to appeal, see People v. Byrd, 90 N.Y.2d 902 (1997).
In support of his petition for habeas corpus the petitioner argues, first, that he was prevented from presenting alibi witnesses in violation of the Compulsory Process Clause of the Sixth Amendment and, second, that his Sixth Amendment right to counsel was violated. For the reasons explained below, the petition is denied.
The petition noted that the petitioner had raised two additional grounds on appeal in the state court: first, that the evidence at trial was allegedly insufficient to prove the defendant's guilt beyond a reasonable doubt, and second, that the trial court had erred in its ruling under People v. Sandoval, 34 N.Y.2d 371 (1974), concerning the scope of cross examination it would have permitted had the petitioner testified and thereby violated the petitioner's privilege against self-incrimination. The Court extended the time for the petitioner to submit an amended petition on three separate occasions to include these two additional issues, and the petitioner failed to do so. The Court also warned that if the petitioner did not submit an amended petition, the petition may be decided on the original petition. Because no amended petition was ever submitted, and the time to submit such a petition passed over nine months ago, the petition will be decided in accordance with the two grounds raised in the original petition which are fully briefed. The additional claims would, in any event, be without merit. The evidence of the eyewitness would be sufficient to prove the petitioner's guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (in reviewing the sufficiency of the evidence, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"); see also Devarez v. Keane, No. 95 Civ. 5283, 1997 WL 414214, *2 (S.D.N.Y. July 24, 1997). And the Appellate Division found that the Sandoval issue was not preserved for appeal and thus there was an adequate and independent state ground that would bar federal habeas review unless the petitioner could show cause and prejudice or a miscarriage of justice. The petitioner has not pursued any of these issues.
I.
The record submitted in connection with the present application discloses the following facts. On February 5, 1994, Javier Mendez ("Mendez") and Richie Chan ("Chan") were approached by four men, including the petitioner, while inside the Rector Street subway station, in New York City. (See Trial Transcript ("Tr.") at 123-26.) The petitioner displayed a black revolver to Chan, and one of the men ordered Chan and Mendez to walk down the subway platform. (See Tr. at 126-28.) As Mendez and Chan walked down the platform the men went through their pockets, taking money from both Chan and Mendez. (See Tr. at 129, 131, 137.) At one point, the petitioner struck Mendez in the head with the revolver; Mendez then turned around and saw the petitioner. (See Tr. at 130.) The lighting in the subway station was good. (See id.) After ordering Mendez and Chan not to turn around the men fled down the platform. (See Tr. at 132.) Mendez and Chan reported the incident to the token booth clerk, and the transit police conducted a search for the suspects but were unable to locate them. (See Tr. at 106.)
On February 8, 1994, Detective Constance Rubi ("Rubi") was assigned to the case. (See Tr. at 17-18.) Rubi confirmed the descriptions of the robbers that Mendez had given to the responding officers, and then invited both Mendez and Chan to view computer-selected pictures based on the descriptions. Mendez recognized the petitioner's photo. (See Tr. at 142-43.) Subsequently, Mendez picked the petitioner out of a lineup as one of the men who had robbed him. (See Tr. at 144-45.) In his testimony at trial, Mendez also identified the petitioner as one of the men who had taken part in the robbery. (See Tr. at 145-47.) After hearing the evidence presented at trial, the jury found the petitioner guilty of two counts of robbery in the first degree and two counts of robbery in the second degree. (See Tr. at 310-12.)
Chan was unable to identify the petitioner from the photos or the lineup and was in Hong Kong at the time of trial and did not testify. (See Tr. at 32, 65-66.)
II.
The petitioner contends that the trial court improperly denied a request to present alibi witnesses, in violation of his right to compulsory process under the Sixth Amendment to the United States Constitution. The respondent concedes that this issue has been exhausted in the state courts, but argues that the issue is unpreserved and without merit.
The Appellate Division, First Department found this issue to be unpreserved, stating "[a]lso unpreserved is defendant's contention that the court improperly denied his request, made immediately prior to jury selection, for permission to call two alibi witnesses for whom timely alibi notice was not filed." People v. Byrd, 657 N.Y.S.2d 683, 684 (1st Dep't 1997). The court also found that the petitioner's argument was without merit: "In any event, this request was properly denied, because defendant failed to provide any reasons establishing good cause for such untimeliness either on that occasion or on a previous date when he had unsuccessfully sought permission to file a late notice." Id.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court reaffirmed that where a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman, 501 U.S. at 750; see also Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); Duncan v. Griener, No. 97 Civ. 8754, 1999 WL 20890, *6 (S.D.N.Y. Jan. 19, 1999).
New York Criminal Procedure Law § 470.05(2) provides that "a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. Crim. Pro. L. § 470.05(2). The New York Court of Appeals has explained that this provision "require[s], at the very least, that any matter a party wishes the appellate court to decide to have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error."People v. Luperon, 85 N.Y.2d 71, 78 (1995); see also Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999). The Court of Appeals for the Second Circuit has consistently held that application by the New York state courts of the contemporaneous objection rule codified in N.Y. Crim. Proc. L. § 470.05(2) represents an adequate and independent state ground that acts as a procedural bar to federal habeas review. See Garcia, 188 F.3d at 79 (" [W]e have observed and deferred to New York's consistent application of its contemporaneous objection rules"); see also Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991)
Where the procedural bar to habeas review rests on an adequate and independent state ground, a petitioner must demonstrate both cause for default and actual prejudice before federal relief may be considered. Cause may be shown where "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Fernandez, 931 F.2d at 216. The Supreme Court has held that sufficient external impediments include situations where the factual or legal basis for the claim was not reasonably available to counsel, or where there has been ineffective assistance of counsel in violation of the Sixth Amendment. See Murray, 477 U.S. at 488; see also Coleman, 501 U.S. at 753-54 (discussing ineffective assistance of counsel as cause). In this case, the petitioner has not attempted to show any cause at all for the failure to object to the trial court's ruling, and the record also indicates that the standards for cause outlined in Murray are not satisfied in this case.
After the petitioner was arrested, at a hearing on April 29, 1994 before Judge Budd G. Goodman, the prosecutor, Barrier Cave ("Cave"), noted that the state had not received an alibi notice, despite an anticipation that the defendant would present an alibi defense. The petitioner's counsel, Rick LaFontaine ("LaFontaine"), indicated in response that he was not sure if an alibi notice had been served, whereupon the court stated that any notice given would at that time be late under the applicable state statute. When LaFontaine asked for the opportunity to serve alibi notice, the court reiterated that such notice would be untimely. (See Mins. of April 29, 1994, at 2.) The petitioner's counsel did not object to the court's ruling, and did not make any effort to explain why notice had not been served earlier.
The state represented on direct appeal to the Appellate Division, First Department, that it had served a demand for notice of alibi defense on March 9, 1994. See Brief for Respondent, at 22.)
N.Y. Crim. Pro. L. § 250.20 provides in relevant part that:
1. At any time, not more than twenty days after arraignment, the people may serve upon the defendant or his counsel . . . a demand that if the defendant intends to offer a trial defense that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime, and to call witnesses in support of such defense, he must, within eight days of service of such demand, serve upon the people, and file a copy thereof with the court, a "notice of alibi". . . . For good cause shown, the court may extend the period for service of the notice. . . .
3. If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, or if having served such a notice he calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense. The court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days.
The full discussion between the court and counsel was as follows:
Ms. Cave: This case has been pending for some three months. I have not received alibi notice at this point, which I anticipate will be the defense.
The Court: Is this correct?
Mr. LaFontaine: I don't know.
The Court: At this point, it is my position that alibi notice is untimely.
Mr. LaFontaine: If that is the case, I would ask for the opportunity to serve alibi notice.
The Court: I am sorry, counsel. It is late. The statute vides for a specific period of time. At this time, is late.
Mins. of April 29, 1994, at 2.
On May 20, 1994, the petitioner's counsel, Diana Sanabria ("Sanabria"), informed the trial court that there would be no alibi defense at trial. (See Mins. of May 20, 1994, at 2.) Sanabria's statement was in response to a request from the prosecution as to whether the defendant intended to serve an alibi notice. The issue of alibi notice was not raised again until just before jury selection was to begin in the criminal trial. At that time, the state indicated that it had not received alibi notice, and the court indicated that it appeared that the ruling of Judge Goodman that alibi notice was untimely was binding, but that the court would send the parties back to Judge Goodman if there was any dispute that alibi notice was untimely. (See Mins. of Jan. 12, 1995, at 11-12.) LaFontaine, who did not dispute that alibi notice had not been timely made, nor argue that there were valid grounds for serving alibi notice immediately prior to jury selection, indicated that he would abide by Judge Goodman's ruling, as characterized by the court. Defense counsel chose to accept that ruling without objection and without taking the invitation of the court to go back to Judge Goodman to object to or clarify the ruling. (See Mins. of Jan. 12, 1995, at 12.)
The exchange regarding alibi notice was as follows:
Ms. Jones [for the state]. . . . Miss Cave indicates that defendant's counsel has not served alibi notice and wonders if the defense intends to do so.
The Court: She is shaking her head "no." Ms. Sanabria: No alibi.
Mins. of May 20, 1994, at 2.
The relevant portion of the colloquy is as follows:
The Court: Have you provided, a past tense question, the names of any alibi witnesses other than the Defendant that you intend to use, to the People at this point; have you provided that?
Mr. LaFontaine: I have not in a defense notice. The Defendant did directly when he was interrogated by the police and the Assistant D.A. at the time of the arrest. The Defendant provided the names of alibi witnesses, those alibi witnesses were interviewed and investigated by the prosecution. . . .
Ms. Cave: April 29th, the date that the defense motions were filed, I made a specific request as to whether or not . . . alibi notice would be served because they were not included in the defense motion. At that point the Judge said you probably will not entertain it unless it is made soon, it was not part of the defense motion on May 20th. I have a note for our response the grand jury minutes which were provided on that date by the assistant who was there, no alibi will be raised, it was adjourned for hearing and trial back in June.
The Court: It would appear to me with respect to the issue of alibi the ruling of Judge Goodman on the 20th as it appears reflected on the case would be binding. I think with respect to alibi, on the surface of it, that the ruling would be controlling so that would seem to note — looks like a preclusion. I would send you back if there is any quarrel about it for a decision on that issue.
Mr. LaFontaine: No, Your Honor I think, although I was not present on May 20th I have reason to believe that I have no reason to dispute that and although I am trying to err on the side of safety I would ask if there are potential alibi witnesses I would certainly like to bring them to the court's attention or Miss Cave's attention, in fact, we have been precluded from using them.
The Court: I can't hear you now.
Mr. LaFontaine: If, in fact, we have been precluded from using them, if I understand the ruling, and I will abide by it.
Mins. of Jan. 12, 1995, at 9-12.
The record thus discloses that no objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule. Counsel for the petitioner was aware of the procedural requirements for alibi notice, had ample opportunity to protest the preclusion of alibi witnesses or show good cause why late notice should be allowed, and ultimately acquiesced in the trial court's interpretation of Judge Goodman's earlier ruling rather than returning to Judge Goodman for an objection or clarification. Indeed, defense counsel had affirmatively indicated on May 20, 1994, in response to the prosecutor's inquiry, that there would be no alibi defense.
Surmounting the bar of procedural default requires a showing of both cause and prejudice. See Murray, 477 U.S. at 494-95. In this case, the petitioner can show neither cause nor prejudice. There is no indication that the petitioner could demonstrate a reasonable probability that he could succeed on the merits of his claim. See Glover v. Portuondo, No. 96 Civ. 7616, 1999 WL 349936, *6 (S.D.N.Y. May 28, 1999). Although the preclusion of alibi witnesses plainly implicates the defendant's right to compulsory process under the Sixth Amendment, preclusion is a valid sanction in some circumstances for failure to comply with procedural rules. See Michigan v. Lucas, 500 U.S. 145, 152-53 (1991); Taylor v. Illinois, 484 U.S. 400 (1988). Preclusion may be warranted where other remedies are inadequate, such as where willful misconduct on the part of defense counsel prejudices the state and undermines the adversary process. See Taylor, 484 U.S. at 415 ("A trial judge may certainly insist on an explanation for a party's failure to comply with a request to identify his or her witnesses. . . . If that explanation reveals that the omission was wilful and motivated by a desire to obtain a tactical advantage . . . it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness' testimony") See generally Noble v. Kelly, 97 Civ. 6907, 2000 WL 223823, *13 (S.D.N.Y. Feb. 28, 2000); Millio v. Barkley, 48 F. Supp.2d 259, 263-64 (W.D.N.Y. 1999); Poo v. Hood, 89 Civ. 7874, 1992 WL 30617, *4 (S.D.N.Y. Feb. 12, 1992).
In this case, the petitioner never offered any explanation at trial for not having filed a prior notice of alibi. In April, 1994, more than nine months before the trial, the defense never provided any reason to the court for not having filed a notice of alibi by that time, and after that, the defense affirmatively represented at the May, 1994 hearing that there would be no alibi defense. It was only shortly before jury selection that the defense raised the "possibility" that it would call Keisha Lynch, the defendant's friend, and John Burton, as alibi witnesses. (See Mins. of Jan. 12, 1995, at 10.) The defense was then given the opportunity to see Judge Goodman for a determination whether the prior order of preclusion should be continued. The defense could have made a proffer of the testimony of the witnesses and sought to show why the testimony should not be precluded. However, the defense counsel chose not to pursue that opportunity. Under the circumstances, in the absence of any reason for late notice on two separate occasions, the prior representation of no alibi, and the refusal to seek any clarification or change of Judge Goodman's prior ruling, it cannot be said that the trial judge abused her discretion in precluding the alibi witnesses. The petitioner has failed to show that the ruling of the trial court, or the appellate court in affirming it, 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). See also Williams v. Taylor, ___ U.S. ___, 2000 WL 385369, *28 (April 18, 2000); Concepcion v. Portuondo, No. 97 Civ. 3183, 1999 WL 604951, *4 (S.D.N.Y. Aug. 10, 1999).
Finally, there is no showing that "failure to consider the claim will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. A claim based upon a miscarriage of justice is restricted to "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." McCleskey v. Zant, 499 U.S. 467, 494 (1991). In this case there is no evidence that would indicate that the petitioner's case constitutes such an "extraordinary instance" and that he is innocent of the crimes for which he was convicted.
Hence the petitioner has failed to show both cause and prejudice that could excuse his procedural default. Even if the default were excused, he has failed to show a basis for federal habeas corpus relief on this basis.
III.
The petitioner also contends that he was deprived of his Sixth Amendment right to counsel by the trial court's order that petitioner and his counsel not converse during the final charge to the jury. (See Tr. at 261.) This issue was preserved and the petitioner exhausted his state court remedies. However, the petitioner has not established that the trial court's ruling deprived him of his constitutional right.
Some limited restrictions may be placed on the right of a criminal defendant to consult with his counsel during trial, such as limitations on his ability to consult with his counsel while he is testifying.Compare Geders v. United States, 425 U.S. 80 (1976) (finding unconstitutional an order not to speak with counsel overnight) with Perry v. Leeke, 488 U.S. 272 (1989) (finding constitutional an order directing a defendant not to consult his attorney during a fifteen minute recess at the end of his direct examination); see also United States v. Padilla, 203 F.3d 156, 159 (2d Cir. 2000); Jones v. Vacco, 126 F.3d 408 (2d. Cir. 1997) (holding unconstitutional an overnight ban on communication that extended to four days); People v. Enrique, 566 N.Y.S.2d 201 (1st Dep't 1991) (applying Geders and Leeke to find constitutional an order preventing the defendant from consulting with his lawyer during a two-hour lunch recess during his cross examination)
In this case, the court ordered the defendant not to converse with his counsel during the final charge to the jury. (See Tr. at 261.) That instruction was given after the trial court had begun to charge the jury; the record does not reflect how loudly the defendant and his counsel were talking to prompt the judge's instruction. In any event, the petitioner and his counsel were plainly free to pass notes, and to consult orally after the charge was over. They did not, however, have the right to distract the jury and disturb the proceeding by talking during the charge. The court's order did not violate the petitioner's Sixth Amendment rights. The ban was of limited duration, it applied only to oral, not written, communication, and it was consistent with norms of decorum and order to be expected during the reading of the final charge to the jury. See People v. Colon, 71 N.Y.2d 410, 417 (1988) (finding constitutional the closing of courtroom doors during jury instructions and noting that "[t]he charge to the jury is a solemn and comparatively complex phase of the trial requiring precision and concentration on the part of both the jury and the Trial Judge."); see also People v. Bunker, 688 N.Y.S.2d 176, 177 (2nd Dep't 1999), leave to appeal denied, 93 N.Y.2d 923 (1999). Accordingly, the petitioner is not entitled to relief on this basis.
CONCLUSION
For the reasons explained above, the petition for a writ of habeas corpus is denied. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). The Clerk of the Court is directed to close this case.
SO ORDERED