Opinion
00-CV-6300 (NG)
July 3, 2002
ORDER
Pro se petitioner was convicted after a jury trial on January 8, 1998, in the New York Supreme Court, Queens County (McDonald, J.), of Burglary in the Second Degree in violation of N.Y. Penal Law § 140.25[2], Criminal Possession of Stolen Property in the Third Degree in violation of N.Y. Penal Law § 165.50, Criminal Mischief in the Third Degree in violation of N.Y. Penal Law § 145.05, and Possession of Burglar's Tools in violation of N.Y. Penal Law § 140.35. Petitioner appealed his conviction to the Appellate Division, Second Department, arguing that the trial court improperly denied his suppression motions, his request for an identification charge, and his request for a circumstantial evidence charge. Petitioner also raised claims of prosecutorial misconduct and insufficient evidence. On October 18, 1999, the Appellate Division affirmed the conviction. People v. Everett, 265 A.D.2d 490 (2d Dept. 1999). Petitioner sought leave to appeal to the Court of Appeals, which was denied on December 28, 1999. People v. Everett, 94 N.Y.2d 862 (1999).
On October 20, 2000, petitioner filed this petition for a writ of habeas corpus, alleging that he was denied a fair trial by the trial court's failure to give an identification charge, and by prosecutorial misconduct on summation. The petition is denied because petitioner has failed to show that the state court's decision was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254 (d)(1).
FACTS
Nirupama Shah, and her daughter Karin Parikh, testified that, when they left their apartment the morning of February 28, 1997, it was neat and the door was locked. Shah testified that, when she returned that evening, the lock was broken, her apartment was in disarray, and some of her jewelry was missing. Sila Mehta, a neighbor, testified that on February 28, 1997, she saw petitioner and his co-defendant, Kenneth Butler, standing on the landing between the third and fourth floors. Mehta testified that, shortly after observing petitioner and Butler, she saw that the lock to Shah's apartment was broken. Mehta informed the building manager, Jack Cannatella, who testified he called 911. Police Officers Kieran Rohan and Edward Taverni testified that they responded to the 911 call, and that, when they arrived at the building, Mehta pointed out petitioner and his co-defendant as they left the building.
The officers asked petitioner and his co-defendant what they were doing in the building. Butler responded that they did not live in the building, but they were cleaning the carpet of a tenant named Mrs. Lopez. Cannatella testified that he determined that there was no tenants by the name of Lopez. Officers Rohan and Taverni testified that, at that point, they arrested petitioner and Butler for trespass. Officer Taverni found numerous items of jewelry in petitioner's jacket, and a pair of vice-grip pliers in his backpack. The officers also discovered more jewelry under the backseat of their automobile and on Butler when they arrived at the precinct. Shah later identified the jewelry as her missing jewelry. Police Officer John Bucalo testified that the fair market value of the jewelry was between $3,100 and $4,000, while a defense witness testified that the jewelry was worth $1,169.
ANALYSIS
1. Jury Charge Claim:
Before a federal court may overturn a conviction based upon a challenged jury charge, it must determine "not merely that the instruction [was] undesirable, erroneous, or even `universally condemned,' but that it violated some right which was granted to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). A single instruction may not be judged in isolation, but must be viewed in the context of the overall charge. Id. at 146-47. A petitioner must show that the instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 147. Moreover, a petitioner's burden is especially heavy when he is complaining about an omission from a charge, rather than a misstatement in the charge. Henderson v. Kibbe, 431 U.S. 145, 155 (1977). When a habeas claim is based on an omitted jury instruction, a court compares "the instructions which were actually given with those that should have been given" in order to determine whether it is "logical to conclude that [the omitted] instruction would . . . have affected the verdict." Id. 431 U.S. at 154, 156.
In this case, it is not logical to conclude that the omitted instruction would have affected the verdict. The charge that the trial judge gave adequately instructed the jury on how to weigh identification evidence. The trial judge instructed the jury that one factor to consider in weighing witnesses's testimony is their ability to observe the events they testified to, that the prosecution had the burden of proving each element beyond a reasonable doubt, and that the People had to prove beyond a reasonable doubt that each defendant was the person who committed the crimes charged. Moreover, a more detailed instruction on identification evidence would not have affected the verdict because, as the trial judge noted, eyewitness identification was not a significant issue in this case. No one observed petitioner and Butler commit the crimes charged; rather, that petitioner and Butler were caught exiting Shah's apartment building with Shah's jewelry and a pair of vice-grip pliers connected them to the burglary of her apartment. Therefore, even if the trial court's charge on identification was not sufficiently detailed, it cannot be said that this error so infected the entire trial that the resulting conviction violated due process. See Cupp, 414 U.S. at 147.
2. Prosecutorial Misconduct Claim:
Federal habeas corpus relief is available based on a claim of prosecutorial misconduct if the improper conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). For a writ of habeas corpus to issue, a petitioner must show that the prosecutor's misconduct "had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994), cert. denied 516 U.S. 1152 (1996). The Court of Appeals for the Second Circuit considers three factors when determining whether this standard has been met: (1) the severity of the misconduct, (2) the nature of any curative measures taken to remedy the prejudice, and (3) the certainty of the conviction absent the improper conduct. See Bentley, 41 F.3d at 824; Floyd v. Meachum, 907 F.2d 347, 3555 (2d Cir. 1990). In addition, in determining whether a prosecutor's conduct was unconstitutional, a court "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's [remarks] . . . If the prosecutor's remarks were 'invited,' and did no more than respond substantially in order to `right the scale,' such comments would not warrant reversing a conviction." United States v. Young, 470 U.S. 1, 13-14 (1985).
In this case, the prosecutor's summation did not deny petitioner due process. First, the prosecutor did not improperly shift the burden of proof, or highlight that petitioner did not present a case, by arguing that the jury could conclude that petitioner had broken into Shah's apartment from the fact that Shah's jewelry was recovered from petitioner's pocket. Similarly, the prosecutor's comment that there were many facts that could not be disputed did not shift the burden of proof. The prosecutor merely stated that there were only two disputed issues in the case: whether petitioner and Butler were the individuals who broke into Shah's apartment, and, if so, whether the value of the jewelry they took was worth more than $3,000. This was a fair statement of the record.
Nor did the prosecutor shift the burden of proof, or improperly vouch for her witnesses, by pointing out that they had no motive to lie because, "for a prosecutor to assert in closing argument that . . . witness[es] had no reason to lie is perfectly reasonable. Such arguments do not `shift the burden of proof' to the defendant." Cannery v. State, 1993 WL 119797 *1 (S.D.N.Y. 1993). Likewise, the prosecutor's statements that the People's witnesses could have invented a more convincing story if they had wanted to lie and that the witnesses had to face cross-examination by defense counsel were legitimate comments on the credibility of the People's witnesses, and a fair response to defense counsel's attack on the credibility of the People's witnesses in his summation. The prosecutor's statement that defense counsel's attacks on the police officers was an attempt to divert attention away from the central testimony in the case, that of Mehta, also was a proper response to defense counsel's attack on the police officer's credibility.
Petitioner also challenges the prosecutor's statement that "I swear that if it wasn't for Mr. Cannatella and Ms. Mehta, these defendants would have gotten away." While the prosecutor should not have said "I swear," there was no objection to the comment, and in context is clear the remark was intended to show the importance of these witnesses' testimony in response to defense counsel's remarks. Contrary to petitioner's argument, the prosecutor did not state that petitioner's expert witness had been paid to lie. The prosecutor stated that the expert had been paid to testify. This was a fair statement of the facts, a legitimate argument about evaluating the credibility of petitioner's expert, and an invited response to defense counsel's statement that petitioner's expert was more credible than the People's expert.
Finally, the prosecutor did make several improper remarks. However, applying the Bently factors, none of these comments, read in context, amounted to severe misconduct. Further, the trial judge took curative measures. As to each improper comment, the trial judge sustained objections and, as to most, the trial judge struck the comments from the record. Finally, in light of the strength of the evidence against petitioner, including that petitioner was caught exiting the victim's apartment building with the victim's jewelry, the certainty of conviction absent the comments is high. See Bentley, 41 F.3d at 824.
Conclusion
The petition for a writ of habeas corpus is denied.
As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.
SO ORDERED.