Opinion
No. 99 Civ. 9731 (KMW)(AJP).
April 17, 2000.
REPORT AND RECOMMENDATION
To the Honorable Kimba M. Wood, United States District Judge:
Petitioner Myron Dukes seeks a writ of habeas corpus from his 1993 conviction for felony murder and attempted robbery. His lengthy and articulate petition in essence raises three claims: (1) he was denied effective assistance of trial counsel when he was advised not to testify on his own behalf; (2) the jury verdict was repugnant under New York law, giving rise to due process violations under the Fifth and Fourteenth Amendments and ineffective assistance of counsel under the Sixth Amendment because of counsel's failure to object to the verdict at trial and on appeal; and (3) the trial court denied him the right to confront a witness against him by curtailing the cross-examination at trial of Tosheira Jackson Myers.
For the reasons set forth below, Dukes' petition should be denied.
FACTS
The Robbery Plot
Virtually all the essential facts of the case against Myron Dukes are undisputed. (See generally State Appendix Ex. J: Dukes 10/16/98 Aff.) Dukes' conviction stems from a hare-brained robbery scheme that left two people dead in Washington Heights on February 7, 1992. (E.g., Trial Transcript ["Tr."] 159-62.) The protagonists, all teenagers haling from Bridgeport, Connecticut, included Dukes and his two accomplices: Taj Myers, a street-corner crack dealer, and Myers' school friend, Jason Williams. (Tr. 325-29, 361, 388; see also Dukes 10/16/98 Aff. ¶¶ 2-4.) The three youths hatched their scheme at a Bridgeport pizzeria the day before the robbery attempt. (Tr. 329-30; see also Dukes 10/16/98 Aff. ¶ 2.) Williams testified that "Taj came in the pizza place. And he was like we going to go to New York to do a robbery." (Tr. 331, 463; see also Dukes 10/16/98 Aff. ¶ 2.) The plan was to use Myers' .380 handgun to rip-off drug dealers on Amsterdam Avenue in the Washington Heights section of Manhattan. (Tr. 80-81, 83, 328, 332-33.)
Unless otherwise noted, all references to exhibits refer to the State's Appendix.
Williams pled guilty to first degree manslaughter, received a three to nine-year sentence and testified against Dukes at Dukes' trial. (E.g., Tr. 356-57, 369-71, 392-93; see also State Br. at 3 n.**.)
They postponed the caper, though, because Dukes "was with his girlfriend." (Tr. 332; see also Tr. 80; Dukes 10/16/98 Aff. ¶ 3.) That evening, February 6, 1992, Myers and Williams went to the home of Myers' cousin, Tosheira Myers, where they discussed the robbery further, stashed Taj Myers' gun in the front mailbox, smoked some marijuana, and spent the night. (Tr. 78-81, 85, 333-38, 435-36, 463, 465, 467; Dukes 10/16/98 Aff. ¶ 3.) According to Tosheira's testimony, "Taj [Myers] said they needed a gun for Myron [Dukes] because Myron didn't have a gun." (Tr. 81; see also Tr. 333: "Taj told [Williams] that Myron had supposed to bring a gun.") Williams testified that he knew Myers gun was loaded because "Taj showed me [the gun] and I looked at it myself." (Tr. 337.) When Dukes arrived in the morning, the trio took Myers' gun out of Tosheira's mailbox and headed for New York City in Dukes' white Audi. (Tr. 86-87, 337-39, 435, 438-39, 466, 468; Dukes 10/16/98 Aff. ¶ 4.)
During the drive to New York and while waiting their turn with the drug dealers, Dukes and his accomplices fixed the details of the heist. (Tr. 341-42, 345-46.) Originally the plan called for two guns but because Dukes began the trip unarmed, the robbers had only one weapon. (Tr. 81, 333, 342, 436; see also Dukes 10/16/98 Aff. ¶ 4.) Undeterred, Dukes argued that they could pull off the robbery with one gun. (Tr. 342.) Taj Myers was more worried: "You can get somebody killed like that," he warned. (Id.) Dukes and Myers bickered over who should carry the weapon; Taj Myers ended up with it. (Tr. 345-46, 386-87; Dukes 10/16/98 Aff. ¶ 4.) Williams was the getaway driver. (Tr. 341, 378-81.) Dukes and Myers went into a building but came downstairs and said they would have to come back because someone else was there buying drugs. (Tr. 344-45.) They further planned at this point that "Taj [Myers] was to grab the drug dealer that had the gun that was already inside the building and was supposed to give the gun to Myron [Dukes]. And then they was supposed to finish the robbery." (Tr. 346.)
The Washington Heights Shoot-Out
Things did not go as planned. Williams testified at trial that Myers and Dukes, posing as interested buyers, went up to the apartment where the drugs were sold. (Tr. 93, 345-347.) While upstairs, Myers shot and killed one of the drug dealers, Elvis Cruz. (Tr. 286-88, 350; Dukes 10/16/98 Aff. ¶ 4.) One of the dealers threw a kilogram package of cocaine out the window. (Tr. 166-67, 351-52, 354, 443.) Dukes took Myers' gun and threw it into the backyard, where it was later found by the police. (Tr. 351, 443.) Dukes and Myers escaped out a bathroom window and onto a fire escape, shots rang out and one shot hit Taj Myers in the head, killing him. (Tr. 305, 350-51, 442-43; Dukes 10/16/98 Aff. ¶ 4.)
Dukes made it to the car, where Williams was waiting; Dukes told Williams that he thought Myers was dead. (Tr. 347.) Williams and Dukes fled in the Audi as the drug dealers and the police gave chase. (Tr. 141-42, 347-48.) They abandoned the car at 160th Street between Broadway and Amsterdam Avenue, and Dukes pawned a chain he was wearing for $15 to pay for train tickets back to Connecticut. (Tr. 348-49, 443.)
The Robbers' Confessions to Taj Myers' Family and the Police Investigation
Back in Connecticut, at around 6:00 PM Dukes and Williams told Taj Myers' brother Demetrius Myers and cousin Tosheira Myers what had happened. (Tr. 88-91, 93-94, 353-54, 441-43; Dukes 10/16/98 Aff. ¶ 5.) Tosheira called several hospitals in New York City trying to find out what became of Taj, without success. (Tr. 94.) Next, she called the New York City police. (Tr. 95.) She told a detective that her cousin and his friends had gone to New York "to go school shopping, and his friends said that he fell, and he was unconscious, and some guys had tried to rob them." (Id.) At the time of this phone call, she already knew the real reason that the boys had ventured to New York, but did not tell that to the police, because she did not want to get them in trouble. (Tr. 95-96.)
That same evening, Tosheira and Taj Myers' mother went to New York and spoke to another police detective. (Tr. 96) Tosheira identified Taj in a photograph, but still did not tell police the real reason the boys had gone to New York. (Tr. 95-96, 115-16, 127-28.) A few days later, around February 12, 1992, New York City police detectives visited Tosheira in Bridgeport and she provided them with a signed, handwritten statement, but she still did not tell them about the robbery plot. (Tr. 99, 114-15, 117-18, 122.) In April 1992, Tosheira was imprisoned on unrelated drug charges. (Tr. 70-72, 100.) She did not speak to police again about the killings until January 1993, about 11 months after the shoot-out. (Tr. 129.) Only at that time did she inform them that her cousin and his friends went to New York to commit a robbery. (Id.)
The trial judge explained to counsel, out of the jury's presence, that he sustained objections to certain defense questions designed to elicit that Tosheira had not told the police that Dukes and the others had gone to New York City to commit a robbery, because New York law precludes impeachment by virtue of an omission unless a proper foundation is established — namely that the witness's attention must have been drawn to the issue when the detail was omitted. (Tr. 134-35.) The trial court found that no such foundation was laid. (Tr. 135.) The trial judge added:
Let me just add to the comments that I made. I will state this. the information in a sense has come before the jury because the witness [Tosheira] did testify that she first told the police about the statements that the men were going to Manhattan to commit robberies in January of 1993. . . . It has been brought before the jury.
That can be used for whatever purposes defense counsel may wish to use it in summation.
(Tr. 135-36.) Defense counsel, however, did not refer to it during his summation.
Trial: Closing Argument, Jury Instructions and Verdict
Dukes was arrested on February 23, 1992. (Tr. 528; see also Dukes 10/16/98 Aff. ¶ 5; Pet. at 10.) He was indicted on May 28, 1992 by a New York County Grand Jury on charges of second degree murder (felony murder), second and third degree weapons possession, and two counts of first degree attempted robbery. (See Ex. C: State 1st Dep't Br. at 3; see also Pet. at 10.)
Trial began on April 16, 1993. (Tr. 1.) The State's case included Dukes' fellow robber, Jason Williams, and Taj Myers' cousin, Tosheira Myers, and brother, Demetrius Myers, whose testimony was summarized on pages 2-5 above. The State also called various police and medical examiner witnesses. The defense did not present any witnesses.
Dukes concedes most of these witnesses' testimony stating: "Although Petitioner questions the testimony of Tosheira, Jason and Demetrius on some of the matters, especially alleged declarations made out of the presence of Petitioner, he does not contest that he had full knowledge of the plan to commit a robbery and played an active role therein. However, Petitioner maintains that he did not believe Taj's gun was loaded and never knew it was operable." (Pet. at 9.)
In closing, Dukes' counsel tried to raise reasonable doubt by arguing: "Who started the shooting? Was it, in fact, a rip-off of a drug dealer as is suggested by the People, or was it a rip-off of young kids who were there to buy drugs by drug dealers?" (Tr. 537; see also Tr. 538-41.) Defense counsel also stressed that the undisputed fact that Dukes did not have a gun indicated he did not know that Taj Myers was going to rob the drug dealers. (Tr. 541.) Defense counsel further argued that Tosheira Myers and Jason Williams were lying, based on inconsistencies in their testimony, dislike for Dukes, and to help themselves with their own legal problems. (Tr. 547-70.)
Defense counsel argued: "If this was a rip-off and Myron Dukes knew it was a rip-off, why wouldn't he have a gun so that when they isolated the fellow with the gun, he could then pull the gun on the other two fellows or how many fellows there were and say yes, indeed, this is a rip-off and I have a gun and you don't? The fact that he did not have a weapon could indicate to you that he didn't have the foggiest notion of what was going down. As far as he knew from the evidence you should infer that, in fact, he did not know there was a rip-off going. . . ." (Tr. 541.)
Justice Carruthers began the substantive instructions to the jury by describing the concept of "acting in concert" under the Penal Law. (Tr. 635-41.) He then addressed the second count of the indictment, first degree attempted robbery under N.Y. Penal Law § 160.15(1). (Tr. 641-50.) The trial judge explained the meaning of attempt, and explained that first degree robbery under Penal Law § 160.15(1) requires forcible stealing of property and in the course of committing the crime, "he or another participant in the crime causes serious physical injury to a person who is not a participant in the crime," here, Elvis Cruz. (Tr. 643, 648, 650.) Next, Justice Carruthers explained the third count, first degree attempted robbery under N.Y. Penal Law § 160.15(2). (Tr. 650-53.) In this count, the People were required to prove, among other elements, that "in the course of the commission of the attempted forcible stealing, or immediate flight from it, the defendant or another participant in the alleged attempted robbery was armed with a loaded pistol," i.e., a deadly weapon. (Tr. 653.)
Penal Law § 160.15 reads:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
(1) Causes serious physical injury to any person who is not a participant in the crime; or
(2) is armed with a deadly weapon[.]
N Y Penal Law § 160.15(1)-(2).
Justice Carruthers then explained the first count of the indictment, second degree murder under the felony murder concept. (Tr. 653-57.) He explained:
THE COURT: A person is guilty of murder in the second degree when, acting with one or more other persons, he attempts to commit the crime of robbery, and in the course of and in furtherance of such crime or of immediate flight therefrom, a participant in the attempted robbery causes the death of a person other than one of the participants.
Members of the jury, by this law, the legislature has provided that when, during the attempted commission of the felony of robbery or the immediate flight from it, one of the participants causes the death of a third person, all participants in the crime of robbery or attempted robbery, the one who caused the death and the others as well, are guilty of felony murder, that is, murder in the second degree.
. . . .
In order for you to find the defendant guilty of the crime of murder in the second degree as it is alleged in the first count, you must be satisfied on the basis of credible evidence that the People have proved each and every one of these four elements beyond a reasonable doubt.
Firstly, that on or about February 7, 1992, within the County of New York, the defendant, acting with one or more other persons, attempted to commit the crime of robbery. According to the law, a person attempts to commit robbery when, with intent to commit this crime, he engages in conduct which tends to effect, bring about, the crime of robbery. Keep in mind and apply the instructions that I previously gave you on the law of what an attempt is and what the law of what robbery is.
The second element that must be proved beyond a reasonable doubt is this, that a participant in the attempted robbery caused the death of another person, to wit, Elvis Cruz. A participant in a robbery is one who takes part or shares in an attempted robbery with others. . . .
(Tr. 655-57.)
Justice Carruthers then explained that to find Dukes guilty of second degree criminal possession of a weapon, the state had to prove beyond a reasonable doubt:
Firstly, that on or about February 7, 1992, in the County of New York, the defendant possessed a certain object that is alleged to be a loaded pistol. Keep in mind the law I gave you about acting in concert. Apply the principal [sic] of acting in concert. If you make the requisite findings beyond a reasonable doubt, don't apply it if the People failed to prove that the defendant was acting in concert. What do we mean by to possess? To possess means to have physical possession or to otherwise exercise dominion or control over tangible property. Possession of property must be knowing possession.
(Tr. 658-59.) He further explained that: "It must be proved beyond a reasonable doubt that the defendant personally knew a loaded firearm was in his possession or in his possession with someone with whom he was acting in concert." (Tr. 660.)
On the third degree weapons possession count, the trial judge instructed the jurors that, among other things, they "must be satisfied that the People have proved beyond a reasonable doubt, one, that on or about February 7, 1992, within the County of New York, the defendant possessed an object that is alleged to be a loaded pistol" and that the possession was not at his home or business. (Tr. 663-64.) He did not repeat the reference to accessorial liability while reciting the elements of the charge of third degree weapons possession.
During deliberations, the jurors sent out a note asking: "In the fifth charge, possession of a weapon in the third degree, does it mean that he was acting in concert with the others?" (Tr. 682, 683.) Justice Carruthers responded: "The answer to your question is, no. The charge in the fifth count is an accusation; whether the defendant possessed the weapon by himself, acting in concert with others, or not at all is a question of fact for you to resolve[.]" (Tr. 683.) Later, in response to requests from the jury, the judge repeated his instructions on the elements of the weapons possession charges (Tr. 685-88) and accessorial liability (Tr. 689-94).
The jury returned guilty verdicts on the murder and two attempted robbery counts, and not guilty verdicts on the two weapons charges. (Tr. 695-96.) No objection was raised by either side and the jury was discharged. (Tr. 695-99.)
On July 7, 1993, Dukes was sentenced to concurrent prison terms, the longest of which was 20 years to life. (See State Br. at 1, 3.)
Direct State Appeal
The Office of the Appellate Defender filed an appeal and appeal brief on Dukes' behalf (Ex. A: Dukes 1st Dep't Br.), and Dukes also filed a pro se supplemental brief (Ex. B: Dukes Pro Se Supp. 1st Dep't Br.). Through counsel, Dukes argued that he was prejudiced at trial by Jason Williams' testimony that Dukes had participated in other "stickups" (Ex. A: Dukes 1st Dep't Br. at 10-15); that the rule against hearsay and his rights under the New York Confrontation Clause were violated by the admission of statements of co-conspirators Taj Myers and Jason Williams through Tosheira and Demetrius Myers (id. at 16-27); and that his sentence was excessive (id. at 28-31). In his pro se brief, Dukes himself argued that the jury's verdict was repugnant, that trial counsel was ineffective for failing to object to the repugnant verdict, and that his confrontation rights were violated when the trial judge cut short the cross-examination of Tosheira Myers. (Ex. B: Dukes Pro Se Supp. 1st Dep't Br. at 8-20; Ex. E: Dukes Pro Se 1st Dep't Reply Br. at 1-7.)
The First Department affirmed Dukes' conviction, rejecting all the contentions raised by Dukes and his appellate counsel. People v. Dukes, 240 A.D.2d 180, 180-81, 658 N.Y.S.2d 872, 872 (1st Dep't 1997). Dukes sought (see Ex. G) and was denied leave to appeal to the New York Court of Appeals. People v. Dukes, 90 N.Y.2d 1010, 666 N.Y.S.2d 105 (1997).
State Collateral Proceedings: CPL § 440.10 and Coram Nobis
On October 28, 1998, represented by retained counsel (see Pet. at 11), Dukes filed a CPL § 440.10 motion to set aside his conviction. (Ex. J: CPL § 440.10 motion papers.) He argued that trial counsel was ineffective for failing to: (1) advise him of the possibility of an affirmative defense based on his alleged lack of knowledge that the gun was loaded (Ex. J: Dukes CPL § 440.10 Br. at 5-10), (2) make a timely objection to the repugnant jury verdict (id. at 10-11), (3) "pursue a reasonable and consistent trial strategy" (id. at 11-12), and (4) provide paperwork to him (id. at 12).
In an affidavit submitted in support of his § 440.10 motion, Dukes described his pretrial dealings with his assigned trial lawyer, Frederick H. Cohn, as follows:
Some time during the period between July and November 1992, Cohn . . . visited me [in jail].
7. During the meeting, I admitted to Cohn that I, together with Myers and Williams, had intended to commit the robbery in New York County. I further informed Cohn that at no time during this alleged robbery attempt did I ever possess a handgun or possess Myers' handgun prior to and during the February 7th shooting. Moreover, I informed Cohn that Myers had passed me the discharged handgun immediately after Myers had shot Cruz.
8. Trial counsel responded, in substance, "You cannot take the stand because you will be admitting to felony murder. It doesn't matter if you did or did not know the gun was loaded. All the People have to prove is that you participated in the underlying felony. I may not agree with it, but it's the law." Defendant raised the issue of an affirmative defense, to wit: that defendant neither knew or had reason to believe that Myers was armed with an operable weapon nor did he know or have reason to believe that Myers or any other participant was likely to engage in conduct resulting in the deaths of Myers and Cruz.
(Ex. J: Dukes 10/16/98 Aff. ¶¶ 6-8.)
According to Dukes, at a subsequent meeting between December 1992 and March 1993, Cohn encouraged him to accept a guilty plea to first degree manslaughter with a sentence of six to eighteen years' imprisonment. (Dukes 10/16/98 Aff. ¶ 9.) Dukes claims that he refused to take any plea involving murder "because I didn't kill anyone. I didn't even know the gun was loaded." (Id.) Dukes alleges that a few weeks later, he called Cohn to request copies of documents related to his case and informed Cohn that he had researched the issue and found that an affirmative defense to felony murder was available. (Id. ¶ 10.) Cohn rebuffed him. (Id.) Just before trial, Dukes was offered a four-to-eight year sentence on a manslaughter plea, which he declined. (Id. ¶ 11.) During the same meeting, Dukes asserts that he reiterated to Cohn that he would like to testify that he did not know that the gun was loaded, and Cohn again advised him that taking the stand would amount to admitting to felony murder. (Id. ¶¶ 12-13.) Dukes alleges that he told Cohn that he had gone with Taj Myers to try to obtain bullets for Taj Myers' gun just before the botched robbery, but that no one was home, and so Myers concluded: "'Fuck it, we'll just have to do it like this'" — i.e., with an unloaded gun. (Id. ¶ 12.)
The State opposed Dukes' CPL § 440.10 motion with affidavits from both Cohn and his investigator, stating that during their investigation, Dukes had told them that he had looked at the gun just before the robbery attempt and knew that it was loaded. (Ex. K: Cohn Aff.; Barna Aff.)
Cohn's affidavit stated:
I did advise Mr. Dukes that he should not raise the issue of whether or not he knew the gun was loaded. I did that because he had admitted to me that he had examined the gun and knew that there were bullets and that the only way that he could raise this "defense" was if he testified where he would be subject to cross-examination. I further advised Mr. Dukes that he would have to admit that he knew that there was going to be a robbery, thereby implicating himself, by his own testimony, with the predicate acts upon which the felony murder case was based. It was my assessment that if he testified, certain other matters would be brought out, including other uncharged shootings and robberies, and, perhaps, certain post-arrest events that occurred while he was being held in lieu of bail on the charges.
In fact, my investigator, a retired police detective, and I urged him to accept a plea as he alleges. It was both my assessment, and the assessment of my investigator, during our interview of Mr. Dukes at Rikers Island, that the chances of success on trial, were small, that the original offer was a decent one. I thought that the last offer was extraordinary.
(Ex. K: Cohn Aff. at 1-2.)
The trial judge denied the CPL § 440.10 motion, concluding that there was no reasonable possibility that Dukes' affidavit was truthful. (Ex. N: 2/17/99 Decision Order at 7.) Justice Carruthers noted that the motion was not filed until six years after trial, and was contradicted by affidavits from Dukes' trial counsel and his investigator. (Id. at 1, 3, 9.) Justice Carruthers found that "Dukes's account of Taj's attempt to obtain ammunition is demonstrably false" because forensic evidence at trial had showed that bullets from Taj Myers' gun killed Elvis Cruz. (Id. at 7-9.) As a second reason, Justice Carruthers pointed out the trial evidence as to the inherent dangerousness of attempting to rob drug dealers:
There is another reason, apparent from the trial evidence, that fully justifies the rejection of Dukes's contentions regarding his legal representation. Dukes, Taj, and Williams conspired to rob drug dealers who were in the business of selling large amounts of cocaine. Even in the planning stage, it was clear that Taj and Dukes were about to place themselves in peril. Indeed, on the evening before the robbery attempt, Taj became angry with Dukes for failing to obtain a pistol, and chided him that "you can get somebody killed like that." The high level of danger became even more manifest when, on arriving at the scene of the contemplated robbery, Taj spotted a gunman whose job was to provide security for the drug dealers. Had not the gunman left his post immediately before Taj and Dukes entered the building, Taj would have attempted to overpower and disarm him. Surely, the inherently dangerous nature of the crime that the conspirators intended to commit, Taj's castigation of Dukes for failing to obtain a pistol for himself, and Taj's readiness and apparent ability to disarm the gunman would have led any reasonable person to believe that Taj's own pistol was no mere showpiece.
Justice Carruthers also rejected Dukes' CPL § 440.10 complaints about Cohn's trial strategy and his failure to object to the verdict, since those claims could have been raised on direct appeal, and, in any event, Cohn's trial strategy was not ineffective. (Id. at 10.)
Dukes sought leave to appeal Justice Carruthers' decision to the First Department. (Ex. O: 3/24/99 Application for Leave to Appeal.) The First Department denied leave to appeal on May 11, 1999. (Ex. Q: Certificate Denying Leave.)
However, while the application for leave to appeal the denial of the CPL § 440.10 motion was pending, Dukes brought another collateral attack of his conviction, by way of a pro se writ of error coram nobis in the First Department. (Ex. R: Notice of Motion.) Dukes argued that his appellate counsel was ineffective for not arguing that the verdicts were repugnant and not arguing that trial counsel had been ineffective — the same two claims raised before the First Department previously via Dukes' supplementary brief on direct appeal. (Ex. R: Petition for Coram Nobis at 3-4.) Dukes' coram nobis petition also claimed that: (1) the verdict violated Fifth and Fourteenth Amendment due process because the People did not prove every element of the crimes beyond a reasonable doubt (id. at 10-12); (2) the trial court erred in precluding impeachment of Tosheira Williams with prior omissions in her statements to police (id. at 13-15); (3) the trial judge's refusal to resubmit the supposedly repugnant verdicts to the jury was a denial of Fourteenth Amendment equal protection (id. 16-18); (4) trial counsel was ineffective for failing to prepare and defend the case on "a single minded theory of defense" (id. at 19-21); and (5) trial counsel was ineffective for failing to object to the supposedly repugnant verdicts (id. at 22-24). The First Department summarily rejected Dukes' arguments on August 19, 1999. (Ex. T: 1st Dep't Order.)
Dukes' Federal Habeas Petition
Dukes' habeas petition, dated August 23, 1999 and received by the Court's pro se office on August 27, 1999, rests essentially on three grounds. First, Dukes claims that trial counsel was ineffective because he convinced Dukes not to testify by discounting the possibility of an affirmative defense to the felony murder charge. (Pet. at 13-27.) Second, Dukes argues that the jury's repugnant verdict violated due process and that counsel's failure to agree with his contention that the verdicts were repugnant denied him effective assistance of both trial and appellate counsel in violation of the Sixth Amendment. (Pet. at 28-37, 43-53.) Finally, Dukes argues that he was denied his Confrontation Clause rights when Justice Carruthers limited cross-examination of Tosheira Myers concerning omissions in her initial statements to police. (Pet. at 38-42.)
ANALYSIS
I. DUKES' COUNSEL WERE NOT INEFFECTIVE
A. The Strickland v. Washington Standard
The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
Id. at 689, 104 S.Ct. at 2065.
Accord, e.g., Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.).
Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
See also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996); Cruz v. Greiner, 1999 WL 1043961 at *16; Lugo v. Kuhlmann, 68 F. Supp.2d at 370-71; Santos v. Greiner, 1999 WL 756473 at *7-8; Franza v. Stinson, 58 F. Supp.2d at 134; Torres v. Irvin, 33 F. Supp.2d at 277.
The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697, 104 S.Ct. at 2069.
Accord, e.g., Cruz v. Greiner, 1999 WL 1043961 at *16; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Santos v. Greiner, 1999 WL 756473 at *8; Franza v. Stinson, 58 F. Supp.2d at 134; Torres v. Irvin, 33 F. Supp.2d at 277.
In addition, the Supreme Court also has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066; accord, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Santos v. Greiner, 1999 WL 756473 at *8; Franza v. Stinson, 58 F. Supp.2d at 134.
See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices."), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).
The Strickland test applies to appellate as well as trial counsel. See, e.g., Mayo v. Henderson, 13 F.3d at 533; Lugo v. Kuhlmann, 68 F. Supp.2d at 371. Appellate counsel is not required to raise every colorable claim urged by the client, but is entitled to focus on key issues while winnowing out weaker arguments. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72. Further, reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 372; accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984). Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533.
B. Trial Counsel's Advice that Dukes Not Testify Was Not Ineffective Assistance of Counsel Because it Was a Valid Strategic Decision and Dukes Was Not Prejudiced
See also, e.g., Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 277; Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y. Sept. 19, 1997); Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).
Accord, e.g., Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3312-13 (1983); Jackson v. Leonardo, 162 F.3d at 85; Mayo v. Henderson, 13 F.3d at 533; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.
See also, e.g., Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.
See also, e.g., Jackson v. Leonardo, 162 F.3d at 85; Lugo v. Kuhlmann, 68 F. Supp.2d at 372; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 278; Hurd v. Keane, 1997 WL 582825 at *2; Ehinger v. Miller, 942 F. Supp. at 932; Benn v. Stinson, 917 F. Supp. at 206.
Dukes has not shown that the performance of his trial counsel, Mr. Cohn, was deficient. Read in the best light, Dukes' argument is that he told Cohn that he did not know the gun used to slay Elvis Cruz was loaded, the attorney nevertheless urged him not to testify to this fact, he followed that advice, and he was therefore unable to assert an affirmative defense to the felony murder charge. This argument fails for two reasons.
First, counsel's recommendation that a criminal defendant not testify is "a question of trial strategy that appellate courts are ill-suited to second-guess." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164, 119 S.Ct. 2059 (1999); see, e.g., United States v. Green, No. 96-1185, 104 F.3d 354 (table), 1996 WL 665719 at *3 (2d Cir. Nov. 14, 1996); Quinones v. McClellan, No. 95-2054, 101 F.3d 107 (table), 1996 WL 107240 at *2 (2d Cir. March 8, 1996) (not advising a defendant to testify is strategic and no grounds for ineffective assistance of counsel claim); United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (reasonable trial strategy to advise defendant not to testify rather than risk cross-examination; no ineffective assistance of counsel), cert. denied, 507 U.S. 998, 113 S.Ct. 1619 (1993); Venice v. United States, 98 Civ. 5732, 1999 WL 459934 at *1 n. 1 (S.D.N.Y. July 2, 1999) ("Trial counsel's decision to advise petitioner not to take the stand can be considered a reasonable strategic decision."); Clark v. Bennet, No. 98-CV-1445, 1999 WL 360205 at *8-9 (E.D.N.Y. May 28, 1999); Washington v. Superintendent, Otisville Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *7 (S.D.N.Y. April 11, 1997). Dukes has not shown that Cohn was unaware of the availability of an affirmative defense to felony murder under certain circumstances or that he failed to research the issue in the face of a duty to do so.
Dukes alleges merely that Cohn gave strategically poor advice, not that Cohn prevented him from testifying or failed to inform him that it was his decision whether or not to testify. Cf. Brown v. Artuz, 124 F.3d 73, 79-80 (2d Cir. 1997) (finding deficient performance where defense counsel prevented a defendant from testifying), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077 (1998); Venice v. United States, 1999 WL 459934 at *1 (assumes that had counsel prohibited petitioner from testifying, there would have been a Strickland violation); Clark v. Bennet, 1999 WL 360205 at *9.
It is clear from Dukes' submissions that he brought the possibility of an affirmative defense to Cohn's attention. (Dukes 10/16/98 Aff. ¶ 4.) Nevertheless, Dukes argues that because of his "adolescent age of 17" he trusted in his attorney and followed his advice. (Pet. at 24.) However, this seems untrue: while Dukes may have trusted (and now regrets) Cohn's advice not to testify, he declined Cohn's excellent advice to accept a guilty plea that carried a four to eight-year sentence, preferring to roll the dice and go to trial instead. (See page 13 above.)
Rather, there was ample reason for Cohn to conclude that the best strategy would be would be for Dukes not to take the stand. By testifying, Dukes would have admitted participating in a robbery that resulted in two deaths. His testimony would have resulted in his certain conviction on the two attempted robbery counts, while without his testifying the defense could and did argue that he was just there to buy drugs. Even surviving all this, it is not likely that Dukes could have made out an affirmative defense to the felony murder charge, which would have required him to have "no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." N.Y. Penal Law § 125.25(3)(d). In fact, Dukes knew that the planned caper was dangerous: the night before, his friend Taj Myers told him somebody might get killed if they went with only one gun. (Tr. 342.) Thus, even on Dukes' version of the facts, the decision to advise Dukes not to testify at trial was a valid strategic move.
Second, as Justice Carruthers found as a matter of fact in state court, Dukes' affidavit is not credible. First, uncontroverted evidence at trial proved that Taj's gun was loaded and used to kill Elvis Cruz. (See Ex. N: 2/17/99 Decision Order at 8.) Thus Taj Myers had no need of bullets and Dukes' assertion to the contrary (Dukes 10/16/98 Aff. ¶ 12) lacks credibility. Moreover, even a criminal as foolhardy as Dukes would not ride into New York City to rob Washington Heights drug dealers — who he knew were armed — in their own apartment with only an unloaded pistol. Additionally, Dukes' allegations first arose in 1998, five years after sentencing, with no explanation for the delay. See, e.g., Marcelin v. Garvin, 97 Civ. 2996, 1999 WL 977221 at *7 (S.D.N.Y. Oct. 26, 1997) (Peck, M.J.) (lengthy delay in asserting that a guilty plea was not voluntary calls into question the truthfulness of the factual basis for the assertion, citing cases); see also, e.g., United States v. Manning, No. 95-6402, 107 F.3d 5 (table), 1997 WL 629973 at *1 (2d Cir. Feb. 12, 1997) (a client's delay in claiming attorney proceeded to settle his case without authority undercut the credibility of the claim). Finally, the State in opposing Dukes' CPL § 440.10 motion not only relied on the unbelievability of Dukes' claim, but also produced affidavits from attorney Cohn and his investigator that Dukes told them he knew the gun was loaded. Justice Carruthers was entitled to credit those affidavits over Dukes' belated and incredible assertions. This Court agrees with Justice Carruthers' conclusion that Dukes' self-serving affidavit is not worthy of belief. Dukes received adequate assistance at trial and his Sixth Amendment rights were carefully safeguarded.
Justice Carruthers' factual finding is entitled to substantial deference. See 28 U.S.C. § 2254 (d)(2) (habeas may not be granted unless state adjudication "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"); for pre-AEDPA law in this circuit, see, e.g., Ventura v. Meachum, 957 F.2d 1048, 1054 (2d Cir. 1992) (facts found by state court are presumed correct).
Moreover, although it is not necessary to reach the question, Dukes was not prejudiced by his failure to testify. Under New York law, a defendant may raise an affirmative defense to felony murder, by proving that he —
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Dukes' testimony might have provided evidence to satisfy subsections (a) and (b). However, his testimony on subsections (c) and (d) — that he believed Taj Myers' gun did not contain bullets — was contradicted by several witnesses who described circumstances providing reasonable grounds to believe both that Taj Myers was armed with a deadly weapon and that the youths intended to "engage in conduct likely to result in death or serious physical injury." N Y Penal Law § 125.25(3)(d). These circumstances included the following facts: Dukes, Myers and Williams set out to rob drug dealers; they carried one gun and Myers wanted two; they bickered over who would hold the gun and Dukes agreed to let Myers hold it because Myers was more experienced; Myers told Dukes someone could "get killed"; and the gun used actually contained at least one deadly bullet.
Indeed, Dukes' subjective belief that the gun was unloaded is not relevant to the inquiry: unless he could show by a preponderance of the evidence that he had no reasonable grounds to believe that the gun was loaded and Taj Myers planned to kill, the affirmative defense would fail. See People v. Sanchez, 542 N.Y.S.2d 112, 114, 143 Misc.2d 743, 745-46 (Sup.Ct. Kings Co. 1989) ("Establishing the absence of 'a reasonable basis' contemplates proof of objective factors and elements surrounding the crime."); see also, e.g., People v. Lewis, 163 A.D.2d 328, 329, 557 N.Y.S.2d 453, 454 (2d Dep't 1990) (evidence that defendant had reasonable grounds to believe that another participant was armed with a deadly weapon was sufficient to defeat affirmative defense); People v. Ortiz, 128 A.D.2d 732, 733, 513 N.Y.S.2d 228, 229 (2d Dep't 1987) (same).
Finally, even if Dukes believed Myers' gun was unloaded, his affirmative defense would not have satisfied Penal Law § 125.25(3)(d). By brandishing an unloaded gun to armed drug dealers in their apartment, Dukes and Myers were engaging "in conduct likely to result in death or serious physical injury," either to the drug dealers or themselves. See, e.g., United States v. Salazar, 945 F.2d 47, 51 (2d Cir. 1991) (police officer could assume that "narcotics dealers frequently carry weapons"), cert. denied, 504 U.S. 923, 112 S.Ct. 1975 (1992); Warren v. State, No. CR-96-0793, 1998 WL 678091 at *6 (Ala.Crim.App. Oct. 2, 1998) ("It has been recognized that 'weapons and violence are frequently associated with drug transactions.'") (citing numerous federal cases). Under New York law, "[t]he killing need not be committed by one of the people engaged in the commission or attempted commission of the underlying crime." William C. Donnino, Practice Commentary to N.Y. Penal Law Article 125, at 240 (McKinney's 1998) (citing People v. Hernandez, 82 N.Y.2d 309, 604 N.Y.S.2d 524 (1993) (affirming felony-murder conviction where police officer victim was shot not by one of the felons but by a police officer during a gun battle sparked by the felony). Dukes' testimony would have admitted to a robbery in which someone likely could get seriously injured. And, as the Practice Commentary also points out, "it is the rare accomplice who can establish that he/she had 'nothing to do with the killing itself . . . was unarmed and had no idea that any of his confederates was armed or intended to engage in any conduct dangerous to life.'" William C. Donnino, Practice Commentary to N.Y. Penal Law Article 125, at 242. Dukes' testimony would have admitted to the two alleged robbery counts and would not have established the affirmative defense to felony murder. Thus, no prejudice resulted from counsel's advice that he not take the witness stand. See, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.) (requiring defendant to show that "but for counsel's deficient performance, the result of the proceeding would have been different").
See also Paul J. Arougheti, Note, Imposing Homicide Liability on Gun Battle Participants for the Deaths of Innocent Bystanders, 27 Colum. J. L. Soc. Probs. 467, 490-493 n. 112 (discussing New York and other states that follow the "proximate cause theory" of felony-murder, under which an act that sets into motion foreseeable conduct by another resulting in death can form the basis for felony-murder; "Courts that follow the proximate cause theory maintain that whenever a person commits a felony, especially an enumerated felony, it is reasonably foreseeable that the victim, a police officer, or another third party will attempt to resist the felony with deadly retaliatory force.").
See also, e.g., Burress v. Henderson, 814 F. Supp. 313, 320 (W.D.N.Y. 1993); People v. Jackson, 208 A.D.2d 862, 862, 618 N.Y.S.2d 57, 58 (2d Dep't 1994); People v. Brailsford, 106 A.D.2d 648, 648-49, 482 N.Y.S.2d 907, 907-08 (2d Dep't 1984); People v. Kampshoff, 53 A.D.2d 325, 339-40, 385 N.Y.S.2d 672, 682-83 (4th Dep't 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979 (1977).
Since Dukes clearly had no claim that his trial counsel was ineffective for advising him not to take the stand and declining to argue the affirmative defense to felony murder, appellate counsel can not be faulted for choosing not to base his appeal on ineffective assistance of trial counsel. Ehinger v. Miller, 942 F. Supp. 925, 928, 934 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.) (no ineffective assistance of appellate counsel for failing to argue that trial counsel was ineffective, where trial counsel failed to make an argument that would have lost anyway). Any such claim would have had no probability of success and so Dukes' appellate counsel's decision not to argue it was competent and no prejudice flowed from that decision. See, e.g., Marel v. Lord, 95 Civ. 9968, 1998 WL 17730 at *4 (S.D.N.Y. Jan. 16, 1998), aff'd, 173 F.3d 845 (2d Cir. 1999); Bradford v. Keane, CIV. A. No. CV-94-4665, 1996 WL 361593 at *20 (E.D.N.Y. June 3, 1996) (no ineffective assistance of appellate counsel for declining to argue ineffective assistance of trial counsel, where trial counsel did not object to a jury instruction that was valid in any event); Adams v. People of the State of New York, No. 95-CV-687, 1996 WL 345793 at *4 (E.D.N.Y. June 4, 1996) (no ineffective assistance of appellate counsel for failing to argue ineffective assistance of trial counsel where trial counsel was effective); Todd v. Berry, 86 Civ. 9875, 1988 WL 103351 at *6 (S.D.N.Y. Sept. 27, 1988).
II. THE VERDICTS WERE NOT REPUGNANT AND THEREFORE DO NOT FORM A BASIS FOR RELIEF UNDER THE FIFTH, SIXTH OR FOURTEENTH AMENDMENTS
Dukes next points to what he perceives as an inconsistency in the jury verdicts as a ground for relief under the state doctrine that some verdicts are so inconsistent as to be repugnant. (Pet. at 28-37, 43-53.) Dukes' argument is that he was denied effective assistance of counsel because his attorneys did not raise the repugnancy issue, both at trial (Pet. at 28) and on appeal (Pet. at 47-49). Dukes also asserts that the repugnant verdicts give rise to a violation of the Due Process Clauses of the Fifth and Fourteenth Amendments. (Pet. at 43-46.) Dukes' allegations of ineffective assistance of counsel are without merit because the verdicts were not repugnant as a matter of New York law and thus failure to argue that they were was not ineffective assistance of counsel. (See Point II.A below.) Furthermore, his argument that the alleged inconsistency violated due process is not cognizable on habeas review. (See Point II.B below.)
A. Counsel Was Not Inadequate Because The Verdicts Were Not Repugnant
In People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132 (1981), the New York Court of Appeals stated New York's rule regarding repugnant jury verdicts:
When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. . . .
The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it. . . .
The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.
Id. at 4, 6, 7, 431 N.Y.S.2d at 132, 133-34, 135; accord, e.g., People v. Trappier, 87 N.Y.2d 55, 58, 637 N.Y.S.2d 352, 354 (1995) ("A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit. In order to determine whether the jury reached 'an inherently self-contradictory verdict' a court must examine the essential elements of each count as charged.").
See also, e.g., People v. Loughlin, 76 N.Y.2d 804, 806, 559 N.Y.S.2d 962, 963-64 (1990); People v. Green, 71 N.Y.2d 1006, 1008, 530 N.Y.S.2d 97 (1988); People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 520 (1984); People v. Hampton, 61 N.Y.2d 963, 964, 475 N.Y.S.2d 273, 274 (1984); People v. Coleman, 199 A.D.2d 330, 330, 605 N.Y.S.2d 105, 105 (2d Dep't 1993); People v. Satloff, 82 A.D.2d 896, 897, 441 N.Y.S.2d 96, 98 (2d Dep't 1981) ("to mandate a reversal apparently inconsistent findings must be repugnant and not merely inconsistent"); People v. Bullis, 30 A.D.2d 470, 472, 294 N.Y.S.2d 331, 333 (4th Dep't 1968) ("When the indictment charges two crimes, each of which has identical elements, a finding of guilty on one but not on the other is truly repugnant, as opposed to being merely inconsistent.").
Dukes' theory is that the conviction on Count 3, attempted robbery with a deadly weapon, was repugnant to — i.e., contradicted — the acquittals on the two weapons counts. (Pet. at 34-35.) According to the trial judge's instructions, the jury was required to find beyond a reasonable doubt that a participant in the attempted robbery — either Dukes or Taj Myers — "was armed with a deadly weapon." However, according to Dukes, "in a move that will flabbergast a layman, the jury also found that Petitioner did not personally possess nor act in concert with Taj [Myers] in Taj's possession of the same deadly weapon." (Pet. at 34.) In Dukes' view, this is a direct contradiction — the jury in Count 3 said Dukes aided Taj in being armed and in Counts 4 and 5 said he did not.
Dukes' conclusion is incorrect for two reasons. First, the jury may have convicted Dukes of attempted robbery directly, without the theory of accessorial liability. The instructions and evidence would allow the jury to have found that Dukes himself attempted to forcibly steal property and that Taj was armed. A finding that Dukes was not armed and did not help arm Taj is fully consistent with this theory of direct criminal liability.
Second, even if the jury convicted Dukes for robbery based on an accessory theory, the verdicts are consistent. First degree robbery is a robbery with the aggravating circumstance that the defendant "or another participant in the crime . . . is armed with a deadly weapon." N Y Penal Code § 160.15(2) (emphasis added). "[S]trict liability for an aggravating circumstance attaches to an accomplice, regardless of the latter's degree of intent, knowledge or conduct with respect to the aggravating circumstance." People v. Gage, 259 A.D.2d 837, 687 N.Y.S.2d 202, 204 (3d Dep't 1999). That is, to prove Dukes guilty of attempted armed robbery, the prosecution was not required to prove even that Dukes knew Taj Myers had a gun, let alone that he was an accessory to Myers' possession of the gun. See, e.g., People v. Gage, 259 A.D.2d 837, 687 N.Y.S.2d at 204 ("if the proof is sufficient . . . to establish defendant's culpable mental status with respect to forcible stealing, it is of no moment that he was unaware that [his accomplice] would display what appeared to be a firearm."); In re Angel, 247 A.D.2d 343, 343, 669 N.Y.S.2d 211, 211 (1st Dep't 1998); People v. Mitchell, 235 A.D.2d 321, 322, 652 N.Y.S.2d 956, 956 (1st Dep't 1997); People v. Pagan, 227 A.D.2d 133, 134, 641 N.Y.S.2d 641, 642 (1st Dep't 1996). Therefore, the fact that the jury found that Dukes neither possessed the gun nor aided Taj Myers in possessing the gun does not negate the element of Count 3 requiring a participant in the attempted robbery to be armed. The weapon possession conviction is fully consistent. Dukes' conviction for attempted armed robbery is not repugnant to his acquittal on the weapons possession charges. See, e.g., People v. Castillo, 260 A.D.2d 643, 690 N.Y.S.2d 64, 65 (2d Dep't 1999); People v. Forte, 243 A.D.2d 578, 578, 662 N.Y.S.2d 841, 842 (2d Dep't 1997); People v. Ellerbee, 239 A.D.2d 430, 658 N.Y.S.2d 890 (2d Dep't 1997); People v. Rodriguez, 187 A.D.2d 465, 465-66, 589 N.Y.S.2d 524, 525 (2d Dep't 1992); People v. Holder, 177 A.D.2d 979, 979, 577 N.Y.S.2d 1022, 1023 (4th Dep't 1991); People v. Taylor, 138 A.D.2d 427, 427-28, 525 N.Y.S.2d 589, 589 (2d Dep't 1988); People v. Cobb, 137 A.D.2d 700, 700, 524 N.Y.S.2d 790, 790-91 (2d Dep't 1988).
Since the verdicts were not repugnant, the failure of trial counsel to raise a repugnant verdict objection at trial did not prejudice Dukes. Therefore, under Strickland, trial counsel was not ineffective. (See Point I.A above.) Likewise, the failure of appellate counsel to argue the point was not ineffective. (See Point I.B above.)
Correspondence between Dukes and the Office of the Appellate Defender, attached as Exhibits to the Petition, demonstrate that appellate counsel gave careful consideration to the repugnant verdict claim, but found it to be "far weaker than the other [claims] and not worth raising" and counsel "also question[ed] the substantive merits of the claim." (Pet. Exs.: 5/21/96 Letter.) Counsel explained to Dukes:
I do not see merit in the repugnant verdict claim. . . . [T]here is no repugnant verdict when a defendant is convicted of felony murder with the underlying offense of attempted first degree robbery and is acquitted of gun possession. Generally, illegal weapon possession is a personal act. Taj was guilty of it because he carried the gun. You were not guilty of it because you did not carry the gun. . . . There is, however, accomplice to attempted robbery, and you need not to have possessed the weapon to be found guilty of attempted first degree robbery under an accomplice theory. . . . You were properly acquitted of gun possession because there was no evidence whatsoever that you yourself ever possessed the gun. But the jury concluded that you were an accomplice to the robbery of the drug dealers. . . . And someone died during the attempted robbery, the drug dealer. Because attempted robbery is an underlying felony for felony murder and because someone died in the commission of the attempted robbery, the jury concluded . . . that you were guilty of felony murder. The jury did not have to find you possessed the gun to reach this outcome.
(Pet. Ex.: 3/14/97 Letter.)
B. Repugnant Verdict Due Process Claims Are Not Cognizable on Habeas Review
Dukes alleges that the inconsistent verdicts themselves give rise to a violation of due process under the Fifth and Fourteenth Amendments. (Pet. at 50.) The claim is without merit. "[I]nconsistent jury verdicts are not a ground for habeas relief." Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *13-14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.) (citing cases); see, e.g., United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473 (1984); Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464 (1981) ("[i]nconsistency in a verdict is not a sufficient reason for setting it aside"); Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-91 (1932); United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994) ("it has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty"); United States v. Alvarado, 882 F.2d 645, 653 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114 (1990); United States v. Romano, 879 F.2d 1056, 1060 (2d Cir. 1989); United States v. An-Lo, 851 F.2d 547, 559-60 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493 (1988).
The State argues (State Br. at 20-21) that the repugnant verdict claim is barred by New York's procedural rule requiring that a claim of a repugnant verdict be made before the jury is discharged. See, e.g., People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 379 (1985); People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 13 (1982); People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 489 (1981); People v. Hamilton, 263 A.D.2d 966, 695 N.Y.S.2d 436, 437 (4th Dep't 1999). However, it is not clear that the First Department relied on this rule in their decision denying Dukes' appeal. See People v. Dukes, 240 A.D.2d 180, 180-81, 658 N.Y.S.2d 872, 872 (1st Dep't 1997). The Court therefore addresses the claim on the merits.
See also, e.g., Erdheim v. Greiner, 22 F. Supp.2d 291, 298 (S.D.N.Y. 1998); Carr v. New York, No. 97 CV 117, 97 CV 490, 1998 WL 178844 at *2 (E.D.N.Y. Feb. 13, 1998); United States v. Anzellotto, No. 93 CR 1316, 1995 WL 313641 at *3 (E.D.N.Y. May 9, 1995); Billups v. Costello, 91 Civ. 6296, 1992 WL 170650 at *4 (S.D.N.Y. July 6, 1992) ("As long as a conviction is the result of a fair trial at which legally sufficient evidence has been adduced, its inconsistency with another verdict does not create a constitutional defect."); Savage v. Berbary, No. CIV-90-290E, 1991 WL 147371 at *2 (W.D.N Y July 22, 1991) ("Alleged inconsistencies in state court verdicts are not a proper ground for federal habeas corpus intervention. . . ."); United States v. Marcus Schloss Co., No. 88 CR. 796, 1989 WL 153353 at *2 (S.D.N.Y. Dec. 11, 1989); United States v. Stagnitta, No. 87-CR-182, 1988 WL 46617 at *6-7 (N.D.N.Y. May 6, 1988); United States v. Obayagbona, 627 F. Supp. 329, 345 (E.D.N.Y. 1985).
In United States v. Powell, the Supreme Court explained that "where truly inconsistent verdicts have been reached, '[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. . . .' It is equally possible that the jury, convinced of guilt, properly reached its conclusion . . . then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense." 469 U.S. at 64-65, 108 S.Ct. at 476 (quoting Dunn, 284 U.S. at 393, 52 S.Ct. at 190); accord, Estrada v. Senkowski, 1999 WL 1051107 at *14. The Supreme Court in Powell rejected, as "imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." United States v. Powell, 469 U.S. at 66, 105 S.Ct. at 477; accord, e.g., United States v. Acosta, 17 F.3d at 545-46 ("A court knows only what the jury's verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent."); United States v. An-Lo, 851 F.2d at 559-60; Estrada v. Senkowski, 1999 WL 1051107 at *14.
Thus, Dukes' repugnant verdict due process claim is not cognizable on federal habeas corpus review.
III. DEFENSE COUNSEL'S CROSS-EXAMINATION OF TOSHEIRA MYERS WAS ADEQUATE TO ENSURE DUKES A FAIR TRIAL AND THEREFORE THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT WAS NOT VIOLATED
Dukes argues that his right to confront witnesses against him was infringed when the trial court prevented his trial attorney, Mr. Cohn, from impeaching Tosheira Myers by showing that she omitted from her initial statements to the police the fact that the three young men had told her they were going to New York to commit a robbery. (Pet. at 38-39.) According to Dukes: "All of these previously omitted facts give rise to a strong presumption of a recent fabrication; especially considering the circumstances in which she finally disclosed these omissions," that is, while incarcerated. (Pet. at 39.) Dukes argues that Tosheira's damaging testimony would have been undermined if her prior omissions had been explored fully before the jury. (Pet. at 41-42; Traverse at 12.) Dukes asserts that cutting off cross-examination prejudiced his defense in violation of the Confrontation Clause of the Sixth Amendment. (Pet. at 38-42.)
Whether or not Tosheira could testify about her omissions to police in those first interviews was a central issue raised by counsel as Tosheira was testifying. On cross-examination, Cohn was able to elicit the following description of her February 7, 1992 interview with New York police: Tosheira did not tell police that "Myron Dukes gave Taj the gun" (Tr. 110-11); she knew at the time that "Taj had a gun and Myron Dukes did not" (Tr. 112); and she did not tell police about Dukes' account of the crime in her statement to them (Tr. 117). However, Cohn was cut off when he asked about the handwritten statement Tosheira gave the police on February 8: "Anywhere in this statement do you relate what Myron said on the time when he returned home to . . . your house after Taj was killed?" (Tr. 115.) Nor was Tosheira permitted to testify as to whether the next statement she wrote, on February 12, contained any reference to the robbery. She did testify that the interview lasted about an hour (Tr. 121-22), that she "wasn't telling them everything" (Tr. 122), and she did not tell the police "everything" until eleven months later, when she was incarcerated. (Tr. 127-29.)
This was elicited in the following colloquy during Tosheira's cross-examination:
Q Did you tell [the police on February 12 that] the purpose of going was to commit a robbery?
A No.
Q You didn't. You made a written statement to that effect — that night, did you?
A Yes.
Q You read it.
A Then, yeah.
Q You signed it?
A Yes.
Q Nowhere in there did you say that they told you the night of February 6th or the morning of February 6th that the purpose of going to New York was a robbery.
(Tr. 118-19.) At this point, the prosecutor's objection was sustained and defense counsel's question was not answered. (Tr. 119, 121.)
Justice Carruthers ruled that the questions about her omissions were impermissible because no proper foundation had been laid. (Tr. 134-35.) He explained that under the New York Court of Appeals' decision in People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369 (1971), cert. denied, 416 U.S. 905, 94 S.Ct. 1609 (1974), the impeaching party was required to show that the witness had been asked about the subject matter of the omission:
[I]n order to be a proper subject for impeachment, an omission must be an omission of the detail that the witness's attention had been specifically drawn to when the witness made the statement . . . when the detail was omitted.
In Bornholdt, the Court of Appeals ruled that:
[A] witness may not be impeached simply by showing that he omitted to state a fact. . . . It need also be shown that at the prior time the witness' attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial.
People v. Bornholdt, 33 N.Y.2d at 88, 350 N.Y.S.2d at 379-80. The application of this rule in the Bornholdt case itself was upheld by the Second Circuit as constitutional under the Confrontation Clause. See Victory v. Bombard, 570 F.2d 66, 70 (2d Cir. 1978) ("'In most circumstances silence is so ambiguous that it is of little probative force.'").
(Tr. 134.) He reiterated that "if a proper foundation is laid that she was questioned about statements that the three men made as to the purposes for going to Manhattan . . . then the omission can come into evidence." (Tr. 129, 135.) Cohn declined any re-cross. (Tr. 130.) Furthermore, as Justice Carruthers noted, the essential information — that Tosheira did not tell police about the robbery until eleven months after the crime — got before the jury anyway. (Tr. 135-36, quoted at pages 5-6 n. 3 above.)
Dukes is correct that, in certain instances, restrictions on cross-examination may violate the Confrontation Clause of the Sixth Amendment, which affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is also applicable in state criminal trials. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068 (1965). The right to confront witnesses has "long been read as securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557, 108 S.Ct. 838, 841 (1988).
See also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999 (1987); Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110 (1974); Douglas v. Alabama, 380 U.S. at 418, 85 S.Ct. at 1076; Bagby v. Kuhlmann, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S.Ct. 341 (1991); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60 (1963); Avincola v. Stinson, 60 F. Supp.2d 133, 155 (S.D.N Y 1999) (Scheindlin, D.J. Peck, M.J.); Mercado v. Stinson, 37 F. Supp.2d 267, 274-75 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.).
The right to cross-examination, however, is not unlimited:
As long as a defendant's right to confront the witnesses against him is not violated, limitations on cross-examination are not grounds for reversal. . . . Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a "discriminating appraisal" of the particular witness's credibility.
United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397 (1991). "Trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986). The Confrontation Clause "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 21, 106 S.Ct. 292, 294 (1985).
Accord, e.g., United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3535 (Feb. 3, 2000); United States v. Laljie, 184 F.3d 180, 192 (2d Cir. 1999); United States v. Sasso, 59 F.3d 341, 347 (2d Cir. 1995); United States v. Rosa, 11 F.3d 315, 335-36 (2d Cir. 1993); United States v. Singh, 628 F.2d 758, 763 (2d Cir.) ("In determining whether a trial judge has abused his discretion in the curtailment of cross-examination of government witnesses, the test is whether the jury was already in possession of sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government."), cert. denied, 449 U.S. 1034, 101 S.Ct. 609 (1980); Lugo v. Edwards, 97 Civ. 7789, 1998 WL 601080 at *2 (S.D.N.Y. Sept. 9, 1998); United States v. Millan-Colon, 836 F. Supp. 1007, 1012 (S.D.N.Y. 1993).
Accord, e.g., Guttman v. Commodity Futures Trading Comm'n, 197 F.3d 33, 38 (2d Cir. 1999); United States v. Laljie, 184 F.3d at 192; Henry v. Speckard, 22 F.3d 1209, 1214 (2d Cir.), cert. denied, 513 U.S. 1029, 115 S.Ct. 606 (1994); Harper v. Kelly, 916 F.2d 54, 57 (2d Cir. 1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1403 (1991); Nieves v. Smith, 96 Civ. 3650, 1997 WL 289730 at *2 (S.D.N.Y. May 30, 1997); Laboy v. Demskie, 947 F. Supp. 733, 740 (S.D.N.Y. 1996); Bell v. Coughlin, 778 F. Supp. 164, 174 (S.D.N.Y. 1991).
Accord, e.g., United States v. Owens, 484 U.S. 554, 559, 108 S.Ct. 838, 842 (1987); Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989, 999 (1987); Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664 (1987); United States v. Brooks, 82 F.3d at 54; Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *16 (S.D.N Y June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Mercado v. Stinson, 37 F. Supp.2d at 276 n. 5; Lee v. Harris, 91 Civ. 6716, 1992 WL 247037 at *3 (S.D.N.Y. Sept. 16, 1992).
In this case, there is little question that the jury had before it facts sufficient to make a discriminating appraisal of Tosheira Myers' testimony. The jury was made aware that Tosheira spoke with police three times — once on the phone, once in New York City, and once in Bridgeport — without telling them that Dukes and his friends had gone to New York to commit a robbery. The jury was made aware that Tosheira eventually told police about the robbery, but only eleven months later, and only after she herself was arrested in another matter. (See page 5 above.) Defense counsel Cohn was given the opportunity to inquire further, but only if he could lay a proper foundation. He did not do so. Indeed, although the trial judge told him he could argue the issue in closing argument, Cohn dropped the issue altogether, not even arguing in closing that Tosheira fabricated the story between her initial contacts with police in February 1992 and her jailhouse interview in January 1993. (See pages 6-7 above.)
Dukes' submissions now, years later, help him little. He has never offered any theory to explain why Tosheira would have made up the story. Moreover, in a signed, sworn affidavit he admitted that his motive for the trip to New York was robbery — i.e., that successful impeachment of Tosheira would only have mislead the jury. The cross-examination of Tosheira put forward every conceivable basis on which she might have been effectively impeached, fully complying with the requirements of the Confrontation Clause of the Sixth Amendment.
Moreover, even if, as Dukes now demands, Cohn had been allowed to hammer home Tosheira's omissions more specifically, that would not have "had [a] substantial and injurious effect or influence in determining the jury's verdict." Mercado v. Stinson, 37 F. Supp.2d at 277 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993)). As Dukes admits, "[i]t is not disputed that evidence of Petitioner's participation in the underlying felony was overwhelming." (Pet. at 22.) Any Confrontation Clause error, therefore, would have been harmless. See, e.g., Mercado v. Stinson, 37 F. Supp.2d at 277 (discussing harmless error standards in connection with Confrontation Clause violation, citing cases).
CONCLUSION
For the reasons set forth above, Dukes' petition for a writ of habeas corpus is without merit and should be denied. Since Dukes has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Copies to:
Myron Dukes Morrie I. Kleinbart, Esq. Judge Kimba M. Wood