Opinion
04 Civ. 1381 (JFK).
August 16, 2006
PATRICK COOPER Albany, New York, Petitioner, Pro Se.
ELIOT SPITZER, Attorney General for the State of New York, New York, New York, for the Respondent, Of Counsel: Michael P. King, Assistant Attorney General.
OPINION AND ORDER
Introduction
Petitioner Patrick Cooper brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the trial judge's unrequested comments to the jury during voir dire to draw no adverse inference if Petitioner chose not to testify violated his Fifth and Fourteenth Amendment rights. For the reasons set forth below, the Court denies this petition.
Background
At approximately 12:40 a.m. on April 22, 2000, Detective Mark Cooper arrived undercover at the corner of MacDougal and West Third Streets in Manhattan, intending to purchase narcotics. Detective Cooper made eye contact with a man across the street, walked up to the individual and began to speak with him. The Detective spoke face to face with the individual in an area lighted by street lights.
Detective Cooper purchased two ten dollar bags of crack cocaine from the dealer with two prerecorded ten dollar bills. The Detective then walked away and radioed a description of the individual to his field team, noting that the dealer was a six foot tall black man with a scruffy beard, receding hairline and a bald spot.
Detective Johnny Woo, a member of the field team who was assigned to make arrests, stopped Petitioner near the sale location. Petitioner was the only person in the area who matched the given description. Detective Woo confirmed that Petitioner was the drug dealer by having Detective Cooper drive by and make the identification. After this confirmation, Detective Woo searched the Petitioner and found thirty-two dollars in his pocket, including the two prerecorded ten dollar bills used by Detective Cooper as buy money. Two glassine bags of cocaine that fell out of Petitioner's pants during the search were also recovered.
At trial, Detective Cooper testified that he mentally labeled the dealer as "JD BALDY" at the time of the drug transaction because the dealer was "balding on top" and had a receding hairline. The Detective also testified that in the radio call to his field team, he described the assailant as having a receding hairline and a bald spot. At the grand jury presentation five days after the arrest, Detective Cooper said that the drug dealer he saw on the night of the arrest "was bald in the middle of his head." During cross examination at trial, Detective Cooper admitted that though Petitioner had a receding hairline, he was not bald in the middle of his head.
Cooper, an alleged homeless crack addict, maintains that police arrested the wrong individual. On the night in question, he claims to have entered a pizza shop on the corner of MacDougal and West Third Streets and ordered a pizza. At this time, Cooper saw a man named Carlos, a drug dealer from the area. He purchased two bags of cocaine from Carlos and smoked one of the bags in the store bathroom.
When Petitioner emerged from the bathroom, he claims that he saw money on the floor that he picked up quickly and put in his pocket. He assumed the money belonged to Carlos. When Petitioner left the pizza shop, he was stopped by police officers. He claims to have thrown his remaining bag of cocaine away while walking with Detective Woo just prior to his arrest. Petitioner assumes that this bag of cocaine was one of the two glassine bags of cocaine recovered during the arrest, though he is not certain. Petitioner admits to the possession of crack cocaine for his personal use, but maintains that he did not sell it.
The grand jury indicted Cooper for one count of Criminal Sale of a Controlled Substance in the Third Degree and one count of Criminal Possession of a Controlled Substance in the Third Degree. The case went to trial.
During the first round of jury selection, the judge made the following remarks to a panel of potential jurors:
All of us have gone through life conditioned to respond to accusations. When you were in the 6th grade and you hit the kid in front of you with a piece of chalk and the teacher asked you did you just hit Johnny with a piece of chalk, and the teacher didn't want to hear about your right to remain silent under the fifth amendment to the constitution. The teacher wanted to know if you just hit Johnny with the chalk, so you told the little story. You said, no, I was out of town that weekend or whatever you told. We've all done this as we've gone through life. That's not the rule here. The rule in a criminal trial is not only does the defendant not have to take the stand in a criminal case if he chooses not to do so, but if he does so [choose], you cannot hold that against him.
(V.D. Tr. 13-14). During the fourth round of jury selection, the judge again made remarks to the new panel of potential jurors, but did not include his previous story about the schoolboy. Instead, the judge said the following:
The defense in a criminal trial need do nothing. The defendant doesn't have to take the witness stand and doesn't have to come forth with witnesses or ask questions at all. If the defendant chooses to do so, you cannot hold it against him. Those are the ground rules.
The burden of proof is on the prosecution. Under our system, the prosecutor must prove her case and the defendant doesn't have to do anything at all. And you cannot hold that right against the defendant.
(V.D. Tr. 57). Cooper did not object to the aforementioned comments by the judge at any point during the trial.
Prior to trial, defendant moved to suppress physical evidence and identification testimony. After a combinedMapp /Wade hearing not at issue here, Cooper's suppression motions were denied. On January 19, 2001, Petitioner was tried by a jury. On January 24, 2001, the jury found Petitioner guilty of one count of Criminal Sale of a Controlled Substance in the Third Degree and one count of Criminal Possession of a Controlled Substance in the Seventh Degree, submitted as a lesser offense of the Third Degree possession count.
A Mapp hearing, pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), determines whether physical evidence obtained by law enforcement officers against a criminal defendant is admissible at trial. See Alvarado v. Burge, 05 Civ 1851, 2006 U.S.Dist.LEXIS 46708 at *3 (S.D.N.Y. June 30, 2006).
A Wade hearing, pursuant to United States v. Wade, 388 U.S. 218 (1967), determines whether pretrial identification procedures have been so improperly suggestive as to taint an incourt identification. See Lynn v. Bliden, 443 F.3d 238 (2d Cir. 2006).
Petitioner was sentenced to an indeterminate prison term of four and one-half to nine years on the sale count, and a definite term of one year on the possession count. His conviction was affirmed by the Appellate Division, First Department and leave to appeal to the New York Court of Appeals was denied on June 12, 2003. People v. Cooper, 749 N.Y.S.2d 873 (App.Div. 2002), lv. denied, 99 N.Y.2d 627 (2003). Petitioner was paroled on October 15, 2004.
When this case was assigned to me on May 18, 2006, I checked and saw the petitioner had already been released from prison. Because a habeas decision seeking relief from a criminal conviction is not mooted by a petitioner's release from custody,Spencer v. Kemma, 523 U.S. 1, 12-16 (1998), every effort was made to expedite this decision.
Discussion
Under 28 U.S.C. § 2254(a), a federal court may only grant a petition for habeas corpus when the Petitioner's custody is in violation of federal law. Petitioner argues that the trial judge's remarks to the jury during voir dire violated his Fifth and Fourteenth Amendment rights. The government contends that Petitioner's claim is procedurally barred and that, even if the claim were reviewed, the court would not find a Fifth or Fourteenth Amendment violation. The merits of each argument will be assessed.
I. Whether Cooper's Claim is Procedurally Barred
A. Review by the Highest State Court
It is well-settled that a federal court cannot grant a habeas petition when the highest state court that has reviewed the judgment "clearly and expressly states that its judgment rests on a state procedural bar." Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)). In cases where a court has made its decision based on a procedural default and ruled alternatively on the merits, habeas review is also not permitted. Id.
In the instant case, the Appellate Division barred Petitioner's claims due to his failure to make a timely objection to the judge's remarks to the jury panel. Under New York law, an objection to a ruling or instruction of a criminal court must be raised contemporaneously with the challenged ruling or instruction in order to preserve the objection for appellate review. See N.Y.C.P.L. § 470.05(2); People v. Jones, 440 N.Y.S.2d 248, 254-255 (App.Div. 1981). Petitioner first raised an objection to the judge's comments on appeal to the Appellate Division, failing to preserve the issue during trial. The court held that even if it were to review the merits of Petitioner's motion, it would find that the trial judge's instructions as a whole conveyed proper standards.
When the New York Court of Appeals denied Cooper's application for leave to appeal, the Appellate Division became the highest court in the state to review Cooper's claim. The Appellate Division's ruling serves as an adequate and independent finding by the state court of a procedural default, which precludes habeas review by this court. Green, 414 F.3d at 294.
B. Limited Exceptions to the Preservation Requirement
A limited number of cases can be excused from the preservation requirement if the Court finds that 1) Petitioner's fundamental constitutional rights were violated, see People v. McLucas, 15 N.Y.2d 167, 172 (1965); 2) Petitioner can demonstrate cause for the delay, and prejudice resulted from the instruction, see Edwards v. Carpenter, 529 U.S. 446, 451 (2000); or 3) Petitioner can show that a fundamental miscarriage of justice will occur if the petition is not reviewed, see Herrera v. Collins, 506 U.S. 390, 404 (1993).
1. Constitutional Rights Violation Exception
Petitioner argues that he is exempt from the preservation requirement because the procedure followed at trial constituted a deprivation of his fundamental constitutional right against self incrimination. See Rodriguez v. Scully, 788 F.2d 62, 65 (2d Cir. 1986). In order for Petitioner to avail himself of this exception, he must show that the language of the charge "expressly or unambiguously convey[ed] to the jury that the defendant should have testified." People v. Autry, 75 N.Y.2d 836, 839 (1990).
Petitioner asserts that the judge's comments were unambiguous in this regard, but the facts do not support this conclusion. The record demonstrates to the contrary that the language of the charge expressly explained to the jury that Petitioner was not required to testify:
The rule in a criminal trial is not only does the defendant not have to take the stand in a criminal case if he chooses not to do so, but if he does so [choose], you cannot hold that against him.
(V.D. Tr. 13-14).
Cooper's claim that the jury may have made inferences that were different from the express meaning of the judge's words is unpersuasive. Petitioner fails to make the showing required inAutry to defeat the preservation requirement.
2. Cause and Prejudice Exception
Petitioner may also overcome the procedural bar if he can show "cause and prejudice." Edwards, 529 U.S. at 451. Cause for a default can generally be shown if Petitioner demonstrates that he was represented by ineffective counsel. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Petitioner had originally claimed ineffective assistance of counsel in his petition for habeas corpus, but withdrew the claim in an undated letter to Chief Judge Mukasey of the Southern District of New York. Petitioner has not made any other attempt to show cause.
Nonetheless, Petitioner attempts to argue that he was prejudiced by the judge's remarks because, were it not for the judge's remarks, the jury might have believed his claim that police arrested the wrong person. However, the degree of prejudice a habeas petitioner is required to show before obtaining relief for errors at a jury trial is "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982).
Petitioner has not shown that the judge's instruction reached any degree of prejudice. The prerecorded buy money and crack cocaine found on Petitioner as well as the identification made by Detective Cooper prior to Petitioner's arrest suggest that there was more than sufficient evidence to convict him. Petitioner, who was required to demonstrate both cause and prejudice, has shown neither.
3. Miscarriage of Justice Exception
Finally, a petitioner may find relief from the procedural bar with a showing that a fundamental miscarriage of justice will occur if his case is not reviewed. This exception only applies where a Petitioner "supplements his constitutional claim with a colorable showing of factual innocence." Herrera v. Collins, 506 U.S. 390, 404 (1993) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1988)). Though Petitioner maintains his innocence, he has not offered any new exculpatory evidence and is thereby precluded from asserting a miscarriage of justice exception. As pointed out above, there was overwhelming evidence against him. Because Petitioner has not satisfied any of the exceptions discussed above, his habeas motion is procedurally barred.
II. Whether Cooper's Claim has Merit
In the instant case, the Appellate Division held that if the case were reviewed on the merits, it would have been rejected. This Court agrees.
A. Standard of Review
"A necessary condition for federal habeas relief . . . is that the state court's decision be contrary to, or involve an unreasonable application of, clearly established Federal law as established by the Supreme Court." Kane v. Garcia Espitia, 126 S.Ct. 407, 408 (2005) (citing 28 U.S.C. § 2254(d) (1) (2006)). It is not enough that the habeas court has a "firm conviction that the state court was erroneous." Rather, the reviewing court must conclude that the state court's application of the law was "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
In deciding whether a jury instruction violates due process, the court on habeas review must evaluate the instruction, not in "artificial isolation," but in the context of the overall charge and trial record. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Evaluation of the judge's instruction in the present case must start with a look to N.Y.C.P.L. § 300.10. Section 300.10 states that courts should instruct juries regarding a defendant's failure to testify "[u]pon request of a defendant who did not testify in his own behalf, but not otherwise. . . ." N.Y.C.P.L § 300.10. The New York Court of appeals has held that this statute does not establish "`an absolute prohibition against the court exercising its discretion in submitting such a charge without a request from the defendant.'"Liner v. Keane, No. 95 Civ. 2738, 1996 WL 33990 at *8 (S.D.N.Y. Jan. 3, 1996) (quoting People v. Vereen, 45 N.Y.2d 856, 857 (N.Y. 1978)).
Furthermore, when an unrequested adverse inference instruction is given, the harmless error doctrine is applicable. Id. (citing Vereen, 45 N.Y.2d at 857). A jury instruction is deemed harmless error "if the proof of defendant's guilt was overwhelming." Id. (citing Vereen, 45 N.Y.2d at 857; People v. Koberstein, 66 N.Y.2d 989, 1283 (N.Y. 1985)) (internal quotations omitted).
B. Analysis
Petitioner argues that the judge's remarks violated § 300.10 because the instructions were not requested. The judge's instructions, Petitioner claims, suggested that accusers have a natural expectation of hearing a response from the accused. As a result, Petitioner argues he testified at trial only because the alternative would have been seen as unnatural. Because, in Petitioner's mind, he was essentially forced to testify, Petitioner contends he was denied the right to a fair trial.
To begin with, it is not clear that the judge's unrequested adverse inference instruction violated § 300.10, given the New York Court of Appeals interpretation of the statute as explained in Liner, 1996 WL 33990 at *8.
Assuming, for arguments sake, that the state court judge erred in giving the instruction, there is no indication that the verdict would have been different if the contested jury instruction had not been given. The prerecorded money and crack cocaine found on Petitioner's person as well as the identification made by Detective Cooper provided ample evidence to support the jury verdict.
In addition, the judge's instruction expressly distinguished a criminal trial from the schoolboy anecdote. The judge specifically stated, "That's not the rule here. The rule in a criminal trial is not only does the defendant not have to take the stand in a criminal case if he chooses not to do so, but if he does so [choose], you cannot hold that against him." (V.D. Tr. 13-14) (emphasis added). The instructions correctly stated that Petitioner was not compelled to testify.
This obviously is the law.
In view of the ample evidence of Petitioner's guilt adduced at trial and the judge's unrequested but correct statement of the law, Petitioner has not shown a Fifth or Fourteenth Amendment violation. Petitioner's claim does not meet the standard for habeas relief.
Conclusion
Petition's request for habeas corpus relief, pursuant to 28 U.S.C. § 2254 is hereby denied. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253;see Perez, 129 F.3d at 259-60; Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962). This case is closed and the Court directs the clerk of the court to remove this case from the Court's active docket.
SO ORDERED.