Opinion
No. 97 CV 5671 (RR)
June 19, 2000
APPEARANCES: FERMIN FLORES Petitioner, Pro Se
HONORABLE CHARLES J. HYNES, DISTRICT ATTORNEY OF KINGS COUNTY By: Ann Bordley, Assistant District Attorney. Attorney for Respondent.
Memorandum and ORDER
Fermin Flores, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 1998). Flores was convicted in Kings County in 1985 along with co-defendant Stephon Williams of one count of Attempted Murder in the First Degree, N.Y. Penal Law §§ 110.00, 125.27[1] (McKinney 1998), and one count of Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03 (McKinney 2000). Flores is presently incarcerated, having been sentenced to concurrent prison terms of twenty years to life for attempted murder and five to fifteen years for weapon possession. Flores challenges his conviction on the grounds that (1)the evidence was insufficient to prove him guilty beyond a reasonable doubt of attempted first degree murder,(2)the prosecution's failure to disclose material relevant to a potential witness violated his due process right to a fair trial, (3)the introduction of his co-defendant's post-arrest statement at their joint trial violated his Sixth Amendment right of confrontation,(4) the trial court erred in receiving certain expert testimony, (5)the use of an unbalanced verdict sheet denied him a fair trial, and (6)prosecutorial misconduct in summation denied him a fair trial.
By Memorandum and Order dated May 4, 1998, this court dismissed Flores's petition as untimely in light of the Second Circuit's decision in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997). Soon thereafter, the Circuit revisited the issue of timeliness in filing § 2254 petitions, see Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), prompting Flores to move to vacate the dismissal of his suit see Fed.R.Civ.P. 60(b)(6). By order dated December 17, 1998, this court reopened the case. Having now received and carefully reviewed the submissions of the parties, as well as the record of proceedings in the state courts, this court concludes that certain of petitioner's claims are procedurally barred from federal review and that, in any event, all are without merit. Accordingly, Flores's petition for a writ of habeas corpus is denied.
Factual Background
1. Trial
a. The Attempted Murder of Officer Presley Mazone
Transit Police Officer Presley Mazone testified that at approximately 10:30 P.M. on April 10, 1984, he was on his way to work when he entered the Van Siclen Avenue subway station in Brooklyn. Dressed in plain clothes, Officer Mazone showed his Transit Authority identification to the token booth attendant to gain access to the platform. While the officer waited for a train, two men approached him. The shorter man, whom Officer Mazone identified at trial as defendant Stephon Williams, pointed a gun at Mazone and ordered him to "give it up," an apparent reference to the officer's leather jacket. A scuffle ensued during which Officer Mazone unsuccessfully tried to grab Williams's gun, prompting his assailant to put the gun to the officer's head. Meanwhile, Williams's confederate, whom the prosecution would contend was petitioner Fermin Flores, unzipped the officer's jacket thereby exposing the police shield that Mazone testified he was wearing on a chain around his neck. Flores reached inside the jacket and pulled the chain off shouting, "He's a cop; pop him." Officer Mazone immediately identified himself as a police officer and drew his revolver both to defend himself and to arrest the would-be robbers. In the next few seconds, as Williams and Mazone exchanged gunshots, the officer was seriously wounded in the neck, requiring surgery.
Meanwhile, Flores fled through the subway to the next station at New Lots Avenue. At approximately 11:00 P.M., two transit officers spotted petitioner walking adjacent to the tracks. When they asked Flores what he was doing in a restricted area, petitioner stated that he was fleeing from some men who had tried to take his glasses at the Van Siclen Avenue station. As the officers issued Flores a summons for being on the catwalk, they received a radio call that a fellow officer had been shot at the Van Siclen Avenue station. The transmission also provided a description of a suspect that matched petitioner. Relying on that information, the officers placed Flores under arrest, advised him of his rights, and transported him to the 75th Precinct. In the interim, Stephon Williams was also arrested and brought to the precinct.
2. Post-arrest Statements
Flores and Williams each made post-arrest statements inculpating themselves in the attempted murder of Officer Mazone. These statements were received in evidence at the men's joint trial, with the court instructing the jury that each statement could only be used in assessing the culpability of the particular declarant.
a. Flores's Statements
Flores first made an oral statement to Detective Jerome Rupprecht, who testified as to its contents at trial. Flores told the detective that on the night of April 10, 1984, he, Stephon Williams, and another friend went in search of someone to rob. At the Van Siclen Avenue station, they settled on their victim because Williams admired the leather jacket that the man was wearing. Flores stated that he thought the man was a transit worker because he had seen him use a pass at the token booth. While their friend stayed behind, Flores and Williams followed the man in the leather jacket onto the platform. At this point, Flores handed Williams a gun. Williams then approached the man and told him to take off his jacket "or I will buck[i.e., kill] you." Flores admitted that he unzipped the man's jacket, pulled the chains from around his neck, and told Williams to "buck" him. Flores then stated that the man pulled out his gun. As shots were fired, Flores jumped onto the tracks and ran toward the New Lots Avenue station.
In fact, in his oral statement, Flores stated that after unzipping the jacket, he told Williams that the victim was a"cop" and that he should "buck" him. In denying a pretrial motion to sever the defendants, the court directed the prosecutor to redact so much of Flores's statement as indicated that he had communicated Mazone's profession to Williams.
Flores also made a videotaped statement to an Assistant District Attorney. It corresponded to the oral statement except that petitioner specifically denied knowing that the intended robbery victim was a police officer. He insisted that he had not seen any badge when he pulled down the zipper of Officer Mazone's jacket.
b. Williams's Statement
Williams's post-arrest statement was consistent with Flores's, but less detailed. He stated that Flores had come to his home on April 10, 1984, and had shown him a gun, after which the two went to a train station where they decided to rob a man of his leather jacket. He also recalled seeing the man show a pass to enter the station. Williams stated that Flores unzipped the man's jacket, whereupon he grabbed the man's chain to gain a hold on the victim. He did not recall if there was any badge or medallion on the chain. He admitted firing his gun at the victim. Williams said he did not learn his victim was a police officer until that fact was communicated to him by law enforcement authorities.
3. Verdict and Direct Appeal
The jury found Flores and Williams guilty of Attempted Murder in the First Degree and Criminal Possession of a Weapon in the Second Degree. Both men appealed their 1985 convictions to the Appellate Division, Second Department. By the time that court heard their case, the Supreme Court had ruled in Cruz v. New York, 481 U.S. 186, 193-94 (1987), that "where a nontestifying codefendant's confession incriminating a defendant is not directly admissible against the defendant . . ., the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against him." Not surprisingly, both men argued for new trials in light of this decision.
In Williams's case, the Appellate Division granted a new trial, finding that the Sixth Amendment error could not be deemed harmless since Williams's postarrest admissions were far more limited than those of Flores. Indeed, since Flores "repeatedly indicated" that Williams was "more culpable," the court could not "conclude that there is no reasonable possibility that the codefendant's statements contributed to the conviction of this defendant." People v. Williams, 141 A.D.2d 786, 787, 529 N.Y.S.2d 862, 863 (2d Dep't 1988).
0n his retrial, Williams was convicted of Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. The Appellate Division affirmed this conviction. See People v. Williams, 188 A.D.2d 573, 591 4 N.Y.S.2d 467 (2d Dep't 1992).
The court reached the opposite conclusion as to Flores. Finding that "Williams's statements merely placed [Flores] at the scene and indicated that Williams was the major participant in the robbery and shooting," the court concluded that the error in Flores's case was harmless: "there was no reasonable possibility that Williams's statements contributed to the conviction of this defendant." People v. Flores, 162 A.D.2d 464, 465, 556 N.Y.S.2d 161, 162 (2d Dep't 1990).
As to Flores's other claims that (1)the prosecution had failed to prove him guilty beyond a reasonable doubt of attempted first degree murder, (2)the court had improperly received certain expert testimony, and (3)prosecutorial misconduct in summation denied him a fair trial, the court found all to be without merit. Specifically addressing the sufficiency claim, the court observed that "[t]he evidence established that during the altercation Officer Mazone's police shield was revealed, he announced "Police", and he drew his service revolver. Moreover, upon seeing the police shield, the officer testified that the defendant exclaimed, "He's a cop, pop him."' Id. at 465, 556 N.Y.S.2d at 162.
Petitioner's application for leave to appeal the Second Department's ruling to the New York Court of Appeals was denied on August 22, 1990.See People v. Flores, 76 N.Y.2d 856, 560 N.Y.S.2d 996 (1990) (Bellacosa, J.).
4. First § 440 Motion
On February 4, 1992, Flores filed a pro se motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. He asserted that the verdict sheet submitted to the jury in his case was prejudicial and that his trial counsel was constitutionally ineffective for failing to raise an objection to this procedure. The motion was summarily denied on the procedural ground that Flores inexcusably failed to raise these issues on direct appeal. See People v. Flores, Ind. No. 3723/84 (Sup.Ct., Kings Co. Apr. 6, 1992). Petitioner's request for leave to appeal the denial of his § 440 motion was denied by the Appellate Division on July 16, 1992. Although Flores also petitioned the Court of Appeals for further review, that application was denied on August 14, 1992 since, under N.Y. Crim. Proc. Law § 450.90(1), the § 440 order was not appealable to the state's highest court. See People v. Flores, 80 N.Y.2d 903, 588 N.Y.S.2d 828 (1992) (Bellacosa, J.).
5. Coram Nobis Application
By pro se motion dated December 17, 1992, Flores petitioned the Appellate Division for a writ of error coram nobis, claiming that appellate counsel was constitutionally ineffective for failing to challenge the prejudicial verdict sheet. The application was summarily denied on April 5, 1993, and further review denied by the Court of Appeals pursuant to N.Y. Crim. Proc. Law § 450.90(1). See People v. Flores, 81 N.Y.2d 970, 598 N.Y.S.2d 771 (1993 (Bellacosa, J.).
6. Second § 440 Motion
On August 15, 1995, Flores, through counsel, filed a second § 440 motion seeking to vacate his conviction on the ground that the prosecution had failed to meet its obligations under Brady v. Maryland, 373 U.S. 83 (1963), to disclose certain police reports relating to potential eyewitnesses. The motion was denied on July 22, 1996, the state court finding that the statements did not constitute Brady material. See People v. Flores, Ind. No. 3723/84 (Sup.Ct., Kings Co. July 22, 1996). Leave to appeal was denied by the Appellate Division first on November 6, 1996, and again on January 9, 1997.
7. Section 2254 Petition
In papers dated August 29, 1997, Flores petitioned this court for a writ of habeas corpus vacating his conviction.
Discussion
I. Standard of Review
This court's review of Flores's petition is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute, 28 U.S.C. § 2254. Subsection(d) of § 2254 now provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Recently, the Supreme Court provided some guidance for lower courts in applying these statutory standards, particularly subpart (1). In Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000), Justice O'Connor, writing for the Court, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established Federal law: when the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. As to the alternative "unreasonable application" clause, the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id. at 1521-22. Moreover, whatever difficulty there might be in defining the term "unreasonable," courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 1522. For this reason, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.
Applying these principles to this case, it is apparent that petitioner is not entitled to federal habeas relief.
II. Sufficiency of the Evidence
Flores submits that the evidence adduced at his trial was insufficient to prove (1) that Officer Mazone was acting in the line of duty when he was shot, and (2) that petitioner knew or should have known that his victim was a police officer, both elements that distinguish attempted first degree murder from attempted second degree murder. Compare N.Y. Penal Law § 125.27 with N.Y. Penal Law § 125.25.
The Fourteenth Amendment's Due Process Clause "prohibits conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged."' Einaugler v. Supreme Court of the State of N.Y., 109 F.3d 836, 839 (2d Cir. 1997) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Nevertheless, a prisoner raising a sufficiency challenge bears a heavy burden. See id. at 840; Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995); Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (and cases cited therein). A federal court is not, after all, a "forum in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983); accord Herrera v. Collins, 506 U.S. 390, 401 (1993). This court may not itself "weigh the evidence" in Flores's case. Herrera v. Collins, 506 U.S. at 400-01 (quoting Hyde v. Shine, 199 U.S. 62, 84 (1905)). Neither can it "make its own subjective determination of guilt or innocence." Jackson v. Virginia, 443 U.S. 307, 319 n. 13 (1979). Its inquiry is necessarily limited, and petitioner can prevail only upon showing that when the evidence is viewed "in the light most favorable to the government, . . . no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. at 319). Applying these principles, the Appellate Division concluded that a reasonable jury could find Flores guilty beyond a reasonable doubt of attempted first degree murder, and this court, after reviewing the evidence, concurs in this conclusion.
Ample evidence supported a finding that Officer Mazone was acting in the line of duty when he was shot. The officer specifically testified that although he was not yet formally on duty when efforts were made to rob him, when he drew his gun moments before he was shot, his intent was not simply to defend himself but also to effect the arrest of his assailants. The jury was entitled to credit this testimony. See Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (determining witness credibility is the exclusive responsibility of the jury). Further, the propriety of such conduct by a police officer was confirmed by Lieutenant John Carlo, an expert in police procedures, who testified that an officer need not be on duty to take police action. Rather, under New York law and applicable police policies, he is authorized to enforce the law whenever he observes a violation. Indeed, when a crime is committed in his presence, he is obligated to take police action.
Flores's habeas challenge to the trial court's receipt of Lieutenant Carlo's testimony is discussed infra at Point V.
Similarly, the jury was entitled to conclude from the totality of the evidence that Flores knew Mazone was a police officer before the shooting began. Mazone testified that in the course of the robbery, Flores unzipped the officer's jacket exposing the police badge that he wore around his neck. Indeed, he testified that Flores ripped the chain from his neck and told his confederate, "He's a cop; pop him." Although Flores disputes some of these facts, "the proper place for a challenge to a witness's credibility is "in cross-examination and in subsequent argument to the jury, not in an appellate brief."' United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989) (quoting United States v. Friedman, 85 F.2d 535, 558 (2d Cir. 1988).
The shield was subsequently found in the station and returned to token booth clerk Cleveland Kimbrough. Respondent has been unable to provide this court with Mr. Kimbrough's trial testimony, but reference to this statement is contained in briefs filed in the state court.
In sum, when the evidence is viewed in the light most favorable to the prosecution, it becomes apparent that petitioner's challenge to. the sufficiency of the evidence must be rejected as without merit.
III. Withholding Brady Material
Flores claims that the prosecution violated its obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose information relating to a potential eyewitness, Michael Lopez. Lopez was a subway passenger on the platform at the Van Siclen Avenue station at the time Officer Mazone was shot. Although not called as a witness by the prosecution, he was interviewed by the police and made a videotaped statement. In that statement, Lopez reported seeing two black males on the platform trying to hold up Officer Mazone. The taller passed a gun to his shorter confederate who, in turn, pointed it at the officer. Meanwhile, the taller man opened up Mazone's jacket and started searching inside him. As soon as shots were fired, Lopez fled to another level in the station.
Flores submits that he did not learn of this witness or his statement to the police until 1990 and 1992 when he received materials pursuant to the New York Freedom of Information Law. See N.Y. Pub. Off. Law § 87 (McKinney 1988). He submits that the prosecution should have disclosed this information before trial since Lopez's failure to report seeing a police badge around Officer Mazone's neck, or hearing Mazone identify himself as a police officer, or Flores saying, "He's a cop, pop him, " was material to the defense. This argument was rejected by the state court, which in denying petitioner's second § 440 motion, found that the Lopez statements would have had "no exculpatory impact" on the jury. Flores faults the state court for reaching this conclusion without holding an evidentiary hearing. To the extent he asks this court to hold such a hearing, he must remember that the burden is on a habeas petitioner to come forward with some evidence indicating a violation of his federal rights. See Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997). Flores has failed to do so.
Due process plainly requires the prosecution to disclose material evidence favorable to the defense. See Kyles v. Whitley, 514 U.S. 419, 432-34 (1995) (reviewing rulings to that effect in Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976); and United States v. Bagley, 473 U.S. 667 (1985)). "[F]avorable evidence is material, and constitutional error results from its suppression . . ., "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."'Id. at 433-34 (quoting United States v. Bagley, 473 U.S. at 682 (Opinion of Blackmun, J.), 685 (Opinion of White, J.)). This standard does not require a petitioner to show that disclosure of the suppressed materials would likely have resulted in his acquittal. See id. at 434. Rather, he must show that disclosure of the favorable evidence would reasonably have "put the whole case in such a different light as to undermine confidence in the verdict" that was returned. See id. at 435. Flores cannot meet this standard.
While there is no question that prosecutors should always err in favor of disclosing information potentially favorable to the defense, see id. at 439 (noting that the trial, and not the prosecutor's office, is the appropriate forum for "ascertaining the truth about criminal accusations"), the Lopez materials do not undermine confidence in the guilty verdict returned in Flores's case. First, nothing in Lopez's brief statement indicates, one way or the other, whether he heard anything that was said between Officer Mazone and his assailants. Assuming, for argument's sake, that Lopez heard nothing, this hardly impeaches Officer Mazone. Subway stations are busy, noisy places under normal conditions, hardly conducive to overhears except at very close range. Indeed, nothing in the record indicates that Lopez was close enough to the robbers or their victim that he should have heard anything they said. To the contrary, it appears that as soon as he saw the gun transfer from the tall man to the shorter one, he reasonably tried to distance himself from the situation. Second, Lopez's failure to mention seeing a police badge does not impeach Officer Mazone. Again, he was hardly in the same position as Flores to see inside the officer's jacket. More to the point, his statement actually provides some corroboration for Officer Mazone, since Lopez testified that he saw the tall robber — it is apparently undisputed that Flores was taller than Williams- unzip his victim's jacket and stick his hands inside as if he were searching him. This is entirely consistent with Mazone's testimony that after Flores saw his badge, he reached inside and pulled off the chain on which he wore it, testimony that was itself further corroborated by the discovery of the officer's badge on the platform later that night.
In sum, after carefully reviewing the record, this court concludes that while it may have been preferable for the prosecution to disclose Lopez's statement to the defense, petitioner has failed to demonstrate that the state court's rejection of his Brady claim was contrary to or an unreasonable application of clearly established federal law on this issue as determined by the Supreme Court.
IV. Admission of Co-defendant's Confession
Flores submits that the Supreme Court's decision in Cruz v. New York, 481 U.S. 186, entitled him, no less than his co-defendant Williams, to a new trial based on the erroneous receipt into evidence of their interlocking confessions. He is wrong.
Confrontation Clause violations are subject to harmless error analysis. See id. at 194; Graham v. Hoke, 946 F.2d 982, 995 (2d Cir. 1991). When the review is conducted by a court considering a collateral challenge to a conviction, petitioner must show that the error at issue had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 636-38 (1993) (distinguishing between harmless error standards of review applicable to constitutional errors cited on direct appeal and on habeas corpus).
A number of factors are relevant to this assessment. Most significant is "the weight of the prosecution's case" against the petitioner. Samuels v. Mann, 13 F.3d 522, 526 (2d Cir. 1993). A court must also consider "the nature and content of the defendant's own statement, in particular "whether it satisfactorily explains his . . . part in the crime without reference to the codefendant's statement."' Id at 527 (quoting People v. Hamlin, 71 N.Y.2d 750, 758, 530 N.Y.S.2d 74, 77 (1988)). Any attempts by the defendant to repudiate his own confession as well as any objective evidence corroborating or contradicting the confession must be considered. See id.
Applying these factors to petitioner's case, there is no reason to think that the receipt of Williams's confession had a serious and injurious effect in determining the verdict against Flores. The prosecution's case against Flores was powerful. In his own confession, Flores admitted that he was one of the robbers who assaulted Officer Mazone at the Van Siclen Avenue station. He admitted supplying his co-defendant with a gun moments before the robbery. He further admitted unzipping his victim's leather jacket, pulling on a chain around his neck before telling his confederate to kill the victim. Flores never tried to repudiate this confession which, if credited by the jury, left only one issue in dispute: did petitioner know that his victim was a police officer, in short, was he guilty of first or second degree attempted murder. This evidence was supplied by Officer Mazone. Although he could not specifically identify Flores, Mazone did testify that the taller robber who unzipped his jacket thereby exposing his police badge was the same man who then yanked the chain on which he wore his badge off his neck, and told his confederate, "He's a cop; pop him." Later that evening, Mazone's badge would be found on the floor of the subway station.
Flores nevertheless asserts that the receipt of Williams's confession was not harmless because his statements that Mazone had shown a pass on entering the subway, that Flores had initiated the robbery, and that Flores had unzipped the officer's jacket, all helped to establish petitioner's knowledge that his victim was a police officer and his intent to kill. The argument is unpersuasive. Flores admitted each of these facts in his own statement to the police.
Not only was Flores not injured by the receipt of Williams's statements, he may actually have benefitted from their joint trial. In his confession to the police, Flores stated that after opening Mazone's jacket, he told Williams that their victim was a "cop" and to "buck" him. In denying a pretrial motion to sever, the trial court directed the prosecution to redact so much of the statement as made reference to Mazone's profession lest Williams, against whom the statement was not admissible, be prejudiced. No such redaction would be warranted, of course, if Flores were tried alone. The jury would hear that he admitted announcing that Mazone was a police officer before telling Williams to shoot him.
For all these reasons, the court joins with the Appellate Division in concluding that any Sixth Amendment error in Flores's case was harmless and does not warrant a new trial.
V. Expert Witness
Flores challenges the trial court's decision to allow Lieutenant Carlo to testify as an expert witness. The issue merits little discussion. Federal courts may only grant habeas relief if alleged trial errors violate constitutional rights. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). State court rulings on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation, Id.; Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983), unless petitioner can show that "the error was so pervasive as to have denied [petitioner] a fundamentally fair trial, "Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). That is not this case, for the simple reason that the trial court did not err in admitting expert testimony on police procedures.
In challenging Lieutenant Carlo's testimony on direct appeal, Flores relied only on New York State law regarding expert witnesses. See Appellant Brief at 8-10. To the extent he now asserts federal constitutional violations, his petition is not exhausted as required by 28 U.S.C. § 2254(b)(1)(A). See Rose v. Lundy, 455 U.S. 509, 522 n. 14 (1982); Daye v. Attorney General of New York, 696 F.2d 186, 190-92 n. 3 (2d Cir. 1982) (en banc).
Until recently, a petitioner who presented unexhausted claims in a § 2254 petition had to choose whether to withdraw his unexhausted claims and ask the federal court to rule on the remainder of his application, or to have his entire petition dismissed without prejudice to re-file when he had exhausted state remedies on all federal claims. Congress has now provided that in those cases where unexhausted claims are meritless, habeas corpus "may be denied", notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). For the reasons stated, this court finds that Flores's challenge to Lieutenant Carlo's testimony is meritless.
Under New York law, expert testimony is properly received whenever "it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror." People v. Hill, 85 N.Y.2d 256, 261, 624 N.Y.S.2d 79, 81 (1995). At issue in Flores's case was whether a police officer could be acting "in the line of duty" before formally going "on duty." To help the jury resolve this issue, it was useful for it to hear from Lieutenant Carlo about the powers of Transit Department police. The testimony was carefully limited to explaining when an officer was empowered to take official action. Contrary to Flores's argument, it never crossed the line to address the ultimate fact: was Mazone acting in the line of duty when he was shot. In any event, although New York law may prohibit experts from testifying as to ultimate issues of fact, see Kulak v. Nationwite Mut. Ins. Co., 40 N.Y.2d 140, 148, 386 N.Y.S.2d 87, 91-92 (1976); Franco v. Muro, 24 A.D.2d 579, 579-80, 638 N.Y.S.2d 690, 691 (2d Dep't 1996), this limitation is not imposed by the federal Constitution, see Fed.R.Evid. 704 (abolishing "ultimate issue" limitation on expert testimony except with respect to defendant's mental intent).
To the extent plaintiff relies on the Federal Rules of Evidence in mounting his challenge, he is mistaken. These rules govern trials in federal not state courts. Even if they did apply, however, petitioner would not be entitled to any relief since review of trial court decisions regarding the receipt of expert testimony under the federal rules is highly deferential. See General Electric Co. v. Joiner, 522 U.S. 138-39 (1997). Nothing in the record indicates that the trial court abused its discretion in Flores's case.
VI. Verdict Sheet
Flores claims that he was denied his due process right to a fair trial by the trial court's use of a verdict sheet that emphasized certain elements of the charged crimes. Specifically, next to the lesser charge of "Assault in the First Degree," the verdict sheet noted in parenthesis "Intent to cause serious physical injury." Next to the charge "Criminal Possession of a Weapon in the Second Degree," a parenthetical provided "With intent to use unlawfully." Finally, next to the lesser charge of "Criminal Possession of a Weapon in the Third Degree," a parenthetical explained "Not in home or place of business."
copy of the verdict sheet is included as Exhibit H to Petitioner's Notice of Motion. It reveals that no annotation was made to the most serious charge of conviction, i.e., attempted first degree murder.
Preliminarily, this court notes that when Flores initially challenged this verdict sheet in his first 440 petition, the state court rejected the claim on the grounds that it had been defaulted on appeal. Where a state court clearly rests its judgment on an adequate and independent state law ground such as procedural default, a federal habeas court may not review the merits of a claim absent a showing of(1) good cause to excuse the default and ensuing prejudice, or (2) a fundamental miscarriage of justice such as the conviction of an actually innocent person. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); accord Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). Flores advances no cause before this court to excuse the default. Even if he could clear that hurdle, he could not show the required prejudice or fundamental miscarriage of justice since his claim is without merit.
In his coram nobis petition in the state court, Flores did argue that his appellate counsel was constitutionally ineffective for failing to challenge the verdict sheet. That argument, which was summarily rejected by the state court, is not pursued here.
New York courts have generally interpreted state law to allow annotated verdict forms only when the parties have given their consent. See People v. Damiano, 87 N.Y.2d 477, 479, 640 N.Y.S.2d 451, 453-54 (1996) (and cases cited therein); accord People v. Bryant, 246 A.D.2d 662, 663, 668 N.Y.S.2d 231, 232 (2d Dep't 1998). The Appellate Division, Second Department, has inferred consent when a defense counsel "was shown the verdict sheet before it was submitted to the jury and . . . failed to object to its submission to the jury." People v. Spruill, 245 A.D.2d 534, 535, 666 N.Y.S.2d 715, 716 (2d Dep't 1997); see People v. Fecunda, 226 A.D.2d 474, 475, 641 N.Y.S.2d 320, 321 (2d Dep't 1996) (holding that defendant who "voices no objection to the content of the verdict sheet, despite being given adequate opportunity to do so," gives "implicit, if not explicit consent to the submission of an annotated verdict sheet" to the jury). That appears to be this case. The record indicates that counsel for Williams and Flores had the opportunity to review and comment on the court's proposed instructions and verdict form before the case was submitted to the jury. Indeed, Williams's counsel, before raising various issues with respect to the instructions, stated: "Your Honor, I have seen your verdict sheet. I cannot object to the verdict sheet. . . . It's a superb looking verdict sheet." Trial Tr. 483. Flores's attorney, in commenting on one of cocounsel's requests for further instructions, noted, "Your Honor, I would feel satisfied if you just told them you're giving them a verdict sheet to assist them in their deliberations, and leave it at that." Id. This is enough to indicate approval under Spruill and Fecunda.
The Damiano opinion prompted the governor to recommend and the legislature to enact N.Y. Crim. Proc. Law § 310.20 (McKinney Supp. 1999), intended to expand the courts' ability to submit annotated verdict forms. The extent to which it achieves this end is apparently open to debate. See generally Peter Preiser, Supplementary Practice Commentaries, N.Y. Crim. Proc. Law § 310.20 (McKinney Supp. 1999).
In any event, it is not this court's task to decide whether the verdict sheet complied with state law. Even an erroneous jury instruction or verdict form will not warrant federal habeas corpus relief unless it "so infected the entire trial that the resulting conviction violates due process." Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (quotingCupp v. Naughten, 414 U.S. 141, 147 (1973)). Flores cannot show such a violation. Federal courts have often upheld the use of annotated verdict forms. See, e.g., United States v. Gallishaw, 428 F.2d 760, 765-66 (2d Cir. 1970); Belgrave v. Greiner, 1999 U.S. Dist. LEXIS 16331, at *12 (E.D.N.Y. Aug. 31, 1999) (RR). Indeed, in cases involving multiple counts, such a procedure has been commended for promoting informed consideration by the jury. See United States v. Bozza, 365 F.2d 206, 225 (2d Cir. 1966).
A review of the court's full charge to the jury makes plain that the annotated verdict sheet did not deny Flores a fair trial. See Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir. 1988) (holding that a habeas challenge to one part of a jury charge requires consideration of the full charge; United States v. Gahishaw, 428 F.2d at 765-66 (observing that challenge to annotated verdict form that highlighted certain elements of the crime required consideration of court's complete charge to the jury). The trial judge (1) painstakingly explained each element required for the jury to convict the defendants of the various degrees of attempted murder, assault, and weapon possession at issue in the case; (2) carefully detailed the burden of proof borne by the prosecution; and (3) reviewed all principles critical to the defense theory. Under these circumstances, there is no support for petitioner's claim that the verdict sheet denied him a fair trial.
VII. Prosecutorial Misconduct in Summation
Flores submits that the prosecutor denied him a fair trial by impermissibly vouching for the truthfulness of Officer Mazone. The record indicates that defense counsel, in their summations, urged the jury to find that Mazone was exaggerating or mistaken when he testified that Flores identified him as a "cop" and that he so announced himself moments before Williams shot him. Defense counsel suggested that Mazone was motivated to enhance the facts by knowledge that the defendants would face stiffer sentences if convicted of attempted murder of a police officer rather than attempted murder of an ordinary citizen. In response, the prosecutor made the statements about Mazone now at issue:
[Defense counsel] argues that perhaps Mr. — Officer Mazone is mistaken, he's exaggerating. Ladies and gentlemen, I suggest to you that if Officer Mazone was going to come here and lie, if he was going to come here and testify to anything other than the truth
He could very easily, if he really wanted to nail these people, he could have said I recognize him as the shooter and I recognize him as the non-shooter. . . .
He didn't do that, ladies and gentlemen. He didn't say I recognized Fermin Flores. He described the taller, darker fellow, but he didn't point him out. Why didn't he point him out if he was so possessed of saying I announce myself as a police officer, and that's a lie, and he wants to aggravate the crime, because that's a higher crime, and more severe penalty, why, if he's so willing to do that, isn't he willing to get the other guy that helped him to get shot? The reason, I suggest to you, ladies and gentlemen, is to decide for yourselves, but I suggest that is a sign of truthfulness, when a man who was shot through the neck testifies that that is the shooter, and I don't recognize
Use your own common sense to judge whether Officer Mazone was telling the truth. . . . I suggest to you you recollect the testimony and the evidence in this case, you evaluate it. You evaluate it. Some factors, is there a bias on the part of anybody to say anything other than the truth? Well, I suggest to you the only bias Officer Mazone has is to get the right guys, and in this case he didn't even pick out Fermin Flores. If he had a bias he would. . . .
Does Officer Mazone stand to gain personally or lose personally anything? . . .
I suggest to you he does not. He testified he's out of here. . . .
Does the police officer have a motive for or against Mr. Williams or Mr. Flores other than the fact that he was shot by them? In other words, if you're shot by somebody I suggest you're all going to say that's the person, that's the guy who shot me. But is there a motive? In other words, is there something about them in particular that gives Police Officer Mazone a motive to lie? I suggest there is nothing. . . .
Did Officer Mazone evade or did he answer both questions on direct and on cross-examination? Use that to evaluate if Police Officer Mazone was telling the truth or not.
Trial Tr. 450-57. These statements were repeatedly punctuated by defense objection, the vast majority of which were overruled by the court. See id. On direct appeal, the Second Department summarily rejected Flores's argument that the prosecutor had engaged in an improper summation. This court finds that this conclusion is consistent with clearly established federal law.
As the Supreme Court has made plain, when habeas relief is sought based on purportedly prejudicial comments made by a prosecutor in summation, the misconduct must be particularly severe since "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." United States v. Young, 470 U.S. 1, 11 (1985). A petitioner must show "more than mere trial error;" he must demonstrate that the challenged remarks, when viewed in context were "so egregious" as to have "a substantial and injurious effect or influence in determining the jury's verdict." Tankleff v. Senkowski, 135 F.3d 235, 252 (2dCir. 1998); accord United States v. Shareef, 190 F.3d 71, 78 (2d Cir. 1999). The statements in this case do not rise to this level for the simple reason that they do not involve any impermissible vouching. Instead, they urge the jury carefully to consider the Officer's testimony at trial and his motive for testifying, which is certainly permissible.
This leaves for consideration only the prosecutor's repeated use of the phrase "I submit" as he urged the jury to reach certain conclusions. While prosecutors have frequently been criticized for excessive use of the personal pronoun "I" in summation, the concern aroused by such conduct is the tendency it has "to make an issue of [the prosecutor's] own credibility, or to imply the existence of extraneous proof." United States v. Rivera, 22 F.3d 430, 438 (2d Cir. 1994) (quotations and citations omitted); see United States v. Nersesian, 824 F.2d 1294, 1328 (2d Cir. 1987). But that is not to say that the use of the first person pronoun always constitutes error, or that prosecutors are barred from arguing for the credibility of their witnesses based on the evidence in the case. See United States Eltayib, 88 F.3d 157, 173 (2d Cir. 1996). Indeed, the Second Circuit has frequently approved use of the first person pronoun in conjunction with prosecutorial arguments that "submit" to a jury that it should credit a prosecution witness. Id. (rejecting direct appeal challenge to prosecutor's frequent use of the phrase "I submit that"); accord United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) (finding no error in prosecutor's argument that "I submit to you that [these witnesses] are reliable, you can trust their testimony");United States v. Nersesian, 824 F.2d at 1328 (approving arguments employing phrases such as "it is submitted that"). As the court explained in Eltayib, "the phrase "I submit" expresses not a personal belief but a contention, an argument, which, after all, is what a summation to the jury is meant to be." 88 F.3d at 173.
In this case, the prosecutor tempered his use of "I submit" with admonitions that the jurors "decide for yourselves," and "[u]se your own common sense" in assessing witness credibility. He did not suggest that he had peculiar knowledge of extraneous facts. Rather, he urged jurors to "recollect the testimony and the evidence" that they had heard in the case and to "evaluate it" themselves in deciding "if Police Officer Mazone was telling the truth or not." There is nothing unfair about such arguments, and petitioner's challenge to them must be rejected as without merit.
Conclusion
For the reasons stated, this court finds that there was sufficient evidence to support Flores's conviction, that neither the prosecution's failure to disclose information regarding a potential witness nor the receipt into evidence of a co-defendant's confession warrant a new trial, that the trial court acted within its discretion in allowing expert testimony, and that neither the annotated verdict sheet nor the prosecution's summation deprived petitioner of a fair trial. The petition for a writ of habeas corpus is denied as is a certificate of appealability.