Opinion
No. 97-CV-2539 (FB).
December 11, 2001
Reginald Harmon, Clinton Correctional Facility, Dannemora, New York, for the Petitioner, pro se.
Eliot Spitzer, Attorney General of the State of New York, By: Avi Lew, Assistant Attorney General, New York, New York, for the Respondent.
MEMORANDUM AND ORDER
*1 Petitioner Reginald Harmon ("Harmon") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a trial in the Supreme Court, Queens County, Harmon was convicted of Robbery in the First Degree, N.Y. Penal Law § 160.15(3), and Criminal Possession of Stolen Property in the Fifth Degree, N.Y. Penal Law § 165.40, and on March 3, 1993, he was sentenced to concurrent terms of imprisonment of 15 years to life on the Robbery conviction and one year on the Stolen Property conviction. Harmon raises five properly exhausted claims in his habeas petition: (1) insufficiency of the evidence; (2) failure of the trial court to properly charge the jury; (3) denial of the right to be present at all material stages of trial; (5) ineffective assistance of trial counsel; and (6) ineffective assistance of appellate counsel. For the reasons stated below, the petition is denied.
When Harmon originally submitted his petition he had failed to exhaust his ineffective assistance of appellate counsel claim and two other claims. The Court dismissed the mixed petition without prejudice and instructed Harmon to withdraw or exhaust his unexhausted claims. See Harmon v. New York, No. 97-CV-2539, 1999 WL 458171, at *4 (E.D.N.Y. June 25, 1999). Pursuant to the Court's order, Harmon exhausted the ineffective assistance of appellate counsel claim, see People v. Harmon, 698 N.Y.S.2d 496 (2d Dep't 1999), and filed a motion to amend his petition to include the now exhausted ineffective assistance of appellate counsel claim. He has abandoned the two other claims.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets forth the standard of review for habeas petitions filed after April 24, 1997. For petitions filed before this date state court findings of law are reviewed de novo and, as under ADEPA, state court findings of fact are entitled to a presumption of correctness. See Thompson v. Keohane, 516 U.S. 99, 102 (1995); Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir. 1998) (applying pre-ADEPA law to habeas petition filed before April 24, 1997). Harmon's habeas petition is dated April 18, 1997, however, the petition was not filed with the court until May 5, 1997. For pro se prisoners, a habeas petition is deemed filed at the moment of delivery to the prison officials. See Houston v. Lack, 487 U.S. 266 (1988) (holding a pro se prisoner's notice of appeal was deemed filed upon delivery to prison officials); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extended[ing] the prison mailbox rule to petitions for writs of habeas corpus."). Neither Harmon nor the respondent have offered any proof of the date on which Harmon delivered his petition to the prison official. In dismissing the petition, the Court has afforded Harmon the benefit of the more charitable pre-ADEPA standard.
I. Sufficiency of the Evidence
"An appellant challenging the sufficiency of the evidence 'bears a very heavy burden.'" Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 840 (2d Cir. 1997) (quoting Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)). Habeas relief will be granted on such a claim only "'if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Id. at 839 (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). To make this determination, the Court must "'view [] the evidence in the light most favorable to the prosecution.'" Id. at 839-40 (quoting Jackson, 443 U.S. at 319).
Harmon makes two claims regarding the sufficiency of the evidence. First, Harmon claims that the prosecution failed to meet "their burden of proving that [he] used or threatened the use of a dangerous instrument," which is an element of Robbery in the First Degree. N.Y. Penal Law § 160.15(3). Second, Harmon claims that the evidence presented at trial was legally insufficient to prove his guilt because "the complainant had many problems identifying [Harmon] at trial." Habeas Corpus Pet. at 6.
The prosecution put forth four witnesses at Harmon's trial: Mr. Echeverria, Ms. Echeverria, the arresting officer, and Kwok Yim ("Yim"), a passerby who witnessed the events outside the store after the robbery. Mr. Echerverria testified, inter alia, that his assailant was carrying a briefcase and "put the hands inside the briefcase . . . [and] said, drop to the floor." Id. at 273. Mr. Echeveria also testified that he never saw any weapon, but stated that the assailant "cut me with a knife, or something point. I don't know what it was. . . . Something, I don't know. I believe it was a knife, something like that." Id. at 273-74. On direct examination, Mr. Echeverria was asked if he saw his assailant in the courtroom and replied, "No, I don't see him." Id. at 271. Later during his direct examination, Mr. Echeverria changed his testimony and said that he did see the perpetrator in the courtroom. He identified Harmon, but said, "He looked different. I mean the person who robbed me no have no glasses, okay. He looked more thinner, skinny, he looked different. . . . [He had] a moustache and a little beard." Id. at 291-92. During her testimony, Ms. Echeverria identified Harmon as the man who fought with her husband outside the store after the robbery. See id. at 363. Yim, who testified for the prosecution about the events that occurred in the street after the robbery, did not identify Harmon.
*2 A "dangerous instrument" is defined as "any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." N.Y. Penal Law § 10.00(13). Mr. Echeverria testified that Harmon "cut [Mr. Echeverria] with a knife, or something point," and that he bled from the wound. Tr. at 274. Knives are dangerous instruments for purposes of establishing Robbery in the First Degree. See People v. Lawrence, 507 N.Y.S.2d 739 (2d Dep't 1986). Therefore, the Court rejects Harmon's sufficiency of the evidence claim in regard to the use of a dangerous instrument.
As for Harmon's second sufficiency claim, he is correct in stating that Mr. Echeverria had difficulty in identifying him at trial. See Tr. at 270. ("Q: Do you see the man [who robbed you] in the courtroom today. . . . A: No, I don't see him."). However, later in the direct examination, Mr. Echeverria did identify Harmon, and gave a plausible explanation for his earlier difficulty.
"Under our system of jurisprudence . . . the resolution of issues of credibility is exclusively the province of the jury." United States v. Shulman, 624 F.2d 384, 388 (2d Cir. 1980). "While theoretically the testimony of a witness might be so incredible that no reasonable juror could believe him," id., that is not the case here. A rational trier of fact could have found Mr. Echeverria's testimony credible and, in conjunction with the other evidence, found Harmon guilty. Upon examination of the entire record, the Court concludes that there was sufficient evidence to establish Harmon's guilt for Robbery in the First Degree and Criminal Possession of Stolen Property in the Fifth Degree.
II. Jury Instructions A. Failure to Issue a Missing Witness Charge
In its opening statement, the prosecution mentioned that another costumer, Mr. Hernandez, was in the travel agency store with the assailant just before the robbery. See Tr. at 258. Mr. Hernandez had entered the store after the assailant and purchased an airline ticket for approximately $500 in cash. The robbery occurred just after Mr. Hernandez left the store. The prosecution never called Hernandez to testify. During the charging conference, Harmon's attorney requested a missing witness charge. See id. at 466. The trial court denied the request, concluding:
[T]here is nothing in the testimony that would indicate this person, Mr. Hernandez, paid attention to the defendant, that he would be able to identify the defendant, spoke to him, that he looked at him or anything else. He came in to make a purchase; he apparently made his purchase and left.
Id. at 468.
"'Whether a missing witness charge should be given lies in the sound discretion of the trial court.'" Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (quoting United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988)). In order to obtain a missing witness charge under New York law, the party seeking the charge must make a prima facie showing that "the uncalled witness is knowledgeable about a material issue upon which the evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986); see also People v. Kitching, 78 N.Y.2d 532, 536 (1991).
*3 Harmon has not shown that Hernandez was "knowledgeable about a material issue"; therefore, the trial court's exercise of discretion in denying Harmon's request for a missing witness charge did not deprive Harmon of his constitutional right to a fair trial. Reid, 961 F.2d at 377 (holding on habeas review that petitioner who was not entitled to missing witness charge under state law was not deprived of his constitutional right to fair trial).
B. Jury Charge on Reasonable Doubt
The trial court instructed the jury, over the defendant's objection, that:
A reasonable doubt is a doubt based upon reason. It is a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room.
It must, however, be a doubt based upon the evidence or lack of evidence in the case. A reasonable doubt is actual doubt, a doubt that you are conscious of having after reviewing in your mind all of the evidence and giving consideration to all of the testimony.
If at that time, you feel uncertain or not fully convinced that the defendant is guilty and if you believe that a reasonable person hearing the same evidence would hesitate to convict, then that's a reasonable doubt and the defendant would be entitled to a verdict of not guilty.
Tr. at 532 (emphasis added). Harmon contends that the court's instruction to the jury that reasonable doubt is "a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room", Tr. at 532, is erroneous and requires reversal. An improper instruction to the jury on reasonable doubt is per se reversible error. See United States v. Sogomonian, 247 F.3d 348, 351 (2d Cir. 2001).
The Supreme Court has held that "the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof . . . Rather, taken as a whole, the instruction [must] correctly conve[y] the concept of reasonable doubt to the jury" Victor v. Nebraska, 511 U.S. 1, 5 (1994) (internal quotation marks and citations omitted); see also Sogomonian, 247 F.3d at 351. The Court must assess whether "there is a reasonable likelihood that the jury misinterpreted the reasonable doubt instruction." Sogomonian, 247 F.3d at 351 (quoting United States v. Doyle, 130 F.3d 523, 536 (2d Cir. 1997)).
In Vargas v. Keane, 86 F.3d 1273 (2d Cir. 1996), the Second Circuit considered a jury charge on reasonable doubt virtually identical to the charge given in this case. In Vargas, the state court defined reasonable doubt as "a doubt for which you can give a reason if called upon to do so by a fellow juror." Id. at 1277. The court commented that this formulation may be "unwise" because it may intimidate jurors by suggesting that they will be called upon to defend their doubts. Id. Nevertheless, the court concluded that there was not a "reasonable likelihood that the jurors would have understood the instruction to increase the degree of doubt necessary for acquittal." Id. at 1278. There is no constitutionally significant distinction between the instruction given in this case and the one given in Vargas. Accordingly, the challenged instruction, taken in the context of the otherwise unobjectionable reasonable doubt charge, was not error.
III. Right to be Present at all Material Stages of Trial
*4 Harmon claims he was denied the right to be present at all material stages of his trial when he was excluded from side bar conversations during voir dire. See Tr. at 121, 200-01. Criminal defendants have the right to be present during voir dire. See Cuoco v. United States, 208 F.3d 27, 32 (2d Cir. 2000). However, denial of this right is subject to harmless error analysis. See U.S. v. Feliciano, 223 F.3d 102, 112 (2d Cir. 2000). Error is harmless when it does not result in "actual prejudice." Brecht v. Abramson, 507 U.S. 619, 637 (1993).
The sidebar voir dire conversations that Harmon was excluded from consisted of the questioning of two prospective jurors. One of the prospective jurors spoke to the Judge and the defense and prosecution attorneys off the record at the bench, after which the trial judge explained in open court that he had an appointment in family court the next day, and would be excused. See Tr. at 121. The second prospective juror told the judge that she had a vague "recollection of having dealings" with Harmon. See id. at 200. She said that she didn't remember the context of the dealings but that she "assume[d] it was not pleasant." Id. at 201. Upon questioning by the judge, the prospective juror stated that, nonetheless, she could be a fair juror. See id. Nevertheless, she was excused.
Harmon was at all times represented by counsel and he makes no assertion of prejudice arising from his absence during the voir dire side bars. Accordingly, the Court determines that even assuming, arguendo, that not being present at the side bar conversations deprived him of his right to be present during voir dire, he suffered no "actual prejudice."
IV. Ineffective Assistance of Trial Counsel
Harmon's ineffective assistance of trial counsel claim is reviewed under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong of the Strickland test, Harmon must show not simply that counsel erred, but that the error was not within the realm of reasonableness under the professional norms prevailing at the time of trial. Id. at 687-88. Under the second prong of the Strickland test, Harmon must establish that there is "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. Failure to satisfy either prong obviates the need to consider the other, and independently defeats the ineffective assistance of counsel claim. Id. at 697.
Harmon asserted four ineffective assistance of trial counsel claims which he previously raised on direct appeal: that his trial attorney (1) failed to request an examination to determine his capacity to stand trial, pursuant to N.Y.Crim. Proc. Law Sec. 730.10; (2) failed to ask for a missing witness charge; (3) failed to preserve an in-court identification issue; and, (4) that his sentencing attorney suffered from a conflict of interest.
Harmon also asserts four additional ineffective assistance of trial counsel claims that he has not previously raised: that his trial attorney: (1) failed to object to the excusal of prospective jurors; (2) failed to object to the trial judge's oral clarification of a portion of the jury charge regarding the meaning of "dangerous instrument" in the context of Robbery in the First Degree; (3) failed to object "during the Grand Jury [p]rocess"; and (4) failed to preserve "§ 450.10 Issues". Harmon can no longer raise these claims in the state courts. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing N.Y. Court Rules § 500.10(a)). These new claims are unexhausted and procedurally barred. See Roman v. Abrams, 822 F.2d 214, 222 (2d Cir. 1987) ("when a state prisoner has failed to raise his federal constitutional claim in the state courts in accordance with state procedural rules . . . there has been a procedural default that bars federal habeas review"); see also Riascos-Prado v. United States, 66 F.3d 30, 35 (2d Cir. 1995) (In the habeas context of procedural bar due to previously raised claims, "several different claims for ineffective assistance of counsel," are to be addressed, "separately, rather than conflating them into one legal 'ground.'"); Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (holding that state court review of some ineffective assistance of counsel claims, but not others based on different allegations, not sufficient for exhaustion purposes). In any event, the claims are without merit.
A. Failure to Request a Competency Examination
*5 Under N.Y.Crim. Proc. Law Sec. 730.30(1), the court "must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person." An incapacitated person is someone who "as the result of a mental disease or defect lacks the capacity to understand the proceedings against him or to assist in his own defense." N.Y. Crim Proc. Law § 730.10(1). The Second Circuit has held that, in order to be competent, "the defendant must have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and (2) a rational as well as factual understanding of the proceedings against him." United States v. Morrison, 153 F.3d 34, 46 (2d Cir. 1998) (internal quotation marks and citations omitted).
During voir dire the court was advised that Harmon suffered a stroke approximately five months before trial and then a "reoccurrence" several months later. Tr. at 2. The court was also advised that Harmon was partially paralyzed and was on medication. See id. On two occasions Harmon's attorney informed the court that Harmon was "not able to whisper" because of his medical condition, and requested time to consult with him outside the presence of the jury. Tr. at 110; see also Tr. at 125. These are the only indications in the record that Harmon's physical or mental capacities were compromised. These facts alone do not call into question Harmon's ability to "assist in his own defense", N.Y. Crim Proc. Law § 730.10(1), to "consult with his lawyer with a reasonable degree of rational understanding" or to understand the proceedings against him. Morrison, 153 F.3d at 46. Harmon's pro se submissions reveal that he is presently capable of making cogent arguments on his own behalf; however, he has failed to submit any further evidence in support of his contention that he was incompetent to stand trial. Accordingly, he has failed to satisfy any of the Strickland prongs.
B. Failure to Request a Missing Witness Charge
Harmon also asserts that his attorney was ineffective for failing to request a missing witness charge with respect to Hernandez. As previously noted, Harmon's attorney did request this charge. See Tr. at 466 ("Your Honor, I am requesting a missing witness charge as to Mr. Hernandez."). Accordingly, this claim has no basis in fact and is denied.
C. Failure to Preserve an Identification Issue
Although Harmon's attorney did move to dismiss based on insufficient evidence, she did not specifically raise the identification issue. Tr. at 453. Even assuming, arguendo, that Harmon's attorney's performance was deficient in this respect, the Court has already determined that the prosecution's evidence on identification was sufficient. See supra at p. 4. Harmon, therefore, cannot established that "but for counsel's errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
D. Conflict of Interest
*6 Harmon claims that his attorney at sentencing suffered from an actual conflict of interest. Harmon was scheduled to be sentenced on March 2, 1993. Before the sentencing some dispute arose between Harmon and his trial attorney. Her supervisor was called and took over Harmon's representation. The sentencing attorney then informed the court that he believed that Harmon posed a "security risk" and that there was the "possibility of violence." Sent. Tr. at 4 (Mar. 2, 1993). The attorney also requested that his office be relieved from representing Harmon because:
"Sent. Tr." refers to the transcript of the sentencing. The sentencing took place over two days. The date following the page number indicates the date of the relevant transcript.
The fact that I have told your Honor what I have told your Honor obviously on the stand goes against the grain of any defense counsel to say anything that is negative to his client. I have done so because I believe it is my obligation to the personnel of this court and my obligation under the code of professional responsibility. That does not eliminate the conflict.
Id. The court refused to relieve the sentencing attorney.
The attorney was correct that he was ethically obligated as an officer of the court to divulge the security risk. The Supreme Court has observed: "If a 'conflict' between a client's proposal and counsel's ethical obligation gives rise to a presumption that counsel's assistance was prejudicially ineffective, every guilty criminal's conviction would be suspect if the defendant had sought to obtain an acquittal by illegal means." Nix v. Whiteside, 475 U.S. 157, 176 (1986) (holding that attorney's refusal to suborn perjury was not a conflict of interest). The fulfillment of the attorney's ethical obligation to the court was not a conflict of interest. See id. Accordingly, Harmon's conflict of interest claim is without merit.
V. Ineffective Assistance of Appellate Counsel
Harmon's ineffective assistance of appellate counsel claim is also reviewed under the two-prong standard set forth in Strickland. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("Although the Strickland test was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel").
Harmon argues that his appellate counsel was ineffective for failing to raise several issues including: trial counsel was ineffective, the indictment was inadequate, the trial court wrongfully dismissed qualified jurors, the jury rendered a verdict against the weight of the evidence, the defendant was incompetent to stand trial, and the trial court made improper evidentiary rulings. Harmon's appellate counsel raised six viable claims on direct appeal including, inter alia, insufficiency of the evidence; failure of the trial court to issue a missing witness charge; and failure of the court to properly charge the jury on reasonable doubt. In addition, Harmon raised five claims in his pro se supplemental brief.
"A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." Jones v. Barnes, 463 U.S. 745, 753 (1983). In considering a claim that appellate counsel failed to raise a viable issue, the Court must "examine the record to determine whether appellate counsel failed to present significant and obvious issues on appeal." Id. at 754. Any significant issue that could have been raised must be compared with those that were made, and only if the "ignored issues are clearly stronger than those presented," can the presumption of the effective assistance of counsel be overcome. Id.
*7 The Court has already passed upon the ineffective assistance and competency claims and found them to be meritless. See supra at pp. 8-11. Harmon has not established that the remaining claims are "significant" and "clearly stronger" than those raised by appellate counsel. Jones, 463 U.S. at 754. Therefore, his ineffective assistance of appellate counsel claim must fail.
CONCLUSION
The petition is denied. The Court determines that a certificate of appealability will not issue since Harmon has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.