Opinion
99-CV-5747 (JG)
January 3, 2001
JOEL A. BRENNER, ESQ., East Northport, New York, Attorney for Petitioner
RICHARD A. BROWN, District Attorney, Kew Gardens, New York, Attorney for for respondent.
MEMORANDUM AND ORDER
In 1994, a Queens County jury found Bernard Manning guilty of murder in the second degree, in violation of N.Y. Penal Law § 125.25[2]. Manning was sentenced to a prison term of twenty-one years to life. He petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that: (1) his conviction was not supported by legally sufficient evidence; (2) he was prejudiced by the admission of uncharged crimes and prior bad acts evidence; (3) the trial court improperly charged the jury; and (4) he was denied effective assistance of counsel. For the reasons set forth below, the petition is denied.
Background
A. The Events of the Crime
On July 21, 1991, James Gaither ("James") and Luis Colon, who resided at that time at Ethel Robinson's house in Jamaica, Queens, stole a gas barbeque grill from someone's backyard, sold it, and purchased some crack cocaine with the proceeds. (Tr. at 194-200, 208.) They smoked the crack at Robinson's house, and then went their separate ways at approximately 9:00 or 10:00 p.m. (Tr. at 200.) Later that night, James was warned to be careful because the stolen barbeque grill had belonged to the mother of "Mellow," a neighborhood tough and drug dealer. (Tr. 202-05, 225-26.)
"Tr." refers to the trial transcript of People v. Manning, Indictment No. 5550-91, Supreme Court, Queens County.
James returned to Robinson's house at about 4:00 or 4:30 a.m. on July 22, 1991. A few minutes after he arrived, he heard four or five people calling him from outside. When he looked outside, he saw Mellow and Jose (another drug dealer), but he could not recognize the others because it was dark. (Tr. at 201-05, 240, 248.) Mellow said that he wanted James to do some drug business with them, but James believed they were there about the barbeque grill. He responded that he would be out in a few minutes, but he went out the back door of the house instead, and ran to the garage of a neighboring house. From the garage, James heard Colon being beaten up. Five minutes later, he went back to Robinson's house. He saw blood on the bed, so he gathered his clothes and left. (Tr. at 205-08, 225.)
Steven Gaither ("Steven"), James's brother, and Steven's girlfriend, Robyn Roker, also rented a room at Robinson's house. (Tr. at 259.) On the night of the incident, Steven and Roker were in bed sleeping when they heard somebody banging on the door. (Tr. 262, 293.) According to Steven, he went downstairs and unlatched the door just as someone was trying to kick it in. Men then entered and asked for James. (Tr. at 263, 294.)
Roker saw two African-American men, one about five feet seven inches tall and the other about six feet tall. (Tr. at 264.) According to Roker, one of the men had a gun and the taller man was holding Colon. (Tr. at 264-65.) The men left the bedroom and went into the next room with Colon. Roker asked Steven to close the door, and she got dressed. Through the door, Roker could hear Colon screaming. One of the men said, "That's enough, let's go," and then they left. (Tr. at 263, 268-69, 279-80.) Roker and Steven finished getting dressed and left the house. (Tr. at 269.)
Steven, on the other hand, saw four people crowded in the hallway: one light skinned male, two African-American males (about five feet, four inches tall or taller), and Robinson. (Tr. at 295-96.) Someone asked where Steven's brother James was. (Tr. at 297.) Then two six-foot-tall men entered Steven's and Roker's room with Colon. One man had a revolver, searched for someone, and left. The other had a knife and was pulling Colon by the hair. (Tr. at 298-99, 301-02.) They left the bedroom and entered the room next door. Steven began to get dressed. His door was open and he could hear Colon from the next room "hollering" for help. (Tr. at 302-03.) As he left, Steven saw Colon sitting on a mattress in the corner. (Tr. at 303.) Steven testified that he had never seen Manning before the trial. (Tr. at 316-17, 332.)
According to Robinson, on the night of the incident, Colon slept on the floor of her room in the front of the house. (Tr. at 405-06.) At 4:00 a.m., Robinson heard Mellow yelling, "Red, Red," for approximately fifteen minutes. (Tr. at 407.) Robinson looked out the window and saw Mellow, Manning (although she did not know his name at that time), and an Hispanic man, and returned to bed. She then heard Mellow yelling "Mafia" again and again. Robinson testified that she was also known as "Maria" and "Erica Torres." (Tr. at 343.) Because she did not want people in the neighborhood to hear Mellow calling her, she went to the door. As she opened the door, one of the men kicked it. She saw four or five men, and Mellow asked, "Where is the black man, James?" (Tr. at 408-09, 414-15, 449-50.) She responded that he was in his room upstairs. The men went up and kicked Steven's door looking for James. When they came down, they found Colon lying there asleep. They grabbed him by the hair and asked, "Where is James?" Colon responded, "[H]e must be in his room upstairs." (Tr. at 409.)
Robinson initially told the police that the men entered through the back door and that only Mellow had a gun. (Tr. at 561, 709-11, 717-18.)
Two of the men had pistols. One was a skinny, tall Hispanic, and the other was an African-American man Robinson had never seen before. (Tr. at 409, 448.) Robinson explained that the men took her, Colon, Steve, Roker, Norberto and Angel (other residents of the house) to the upstairs front room, forcing them with the pistols. Then, according to Robinson, Manning grabbed Colon, stuck him in another room, and "put a finger in his nose." She heard Colon screaming and went to the door and saw Manning stabbing at Colon. Robinson began to scream and cry, and begged Manning not to kill Colon. Mellow then spoke to Manning. He said, "Germane, Germane, or German, Germane, stop." The men left. (Tr. at 409-10, 451-52, 454-455, 457-58.) Robinson then called for an ambulance and the police. (Tr. at 458.)
On August 26, 1991, more than one month later, James identified Manning's photograph from among books of photographs at the 106th Precinct. James, however, did not identify Manning as a participant in this crime. He told the police that they would be able to find Mellow and Jose with Manning on 125th Street. (Tr. at 223-24, 244-45, 685-86, 713-14.) The following day, Robinson identified Manning in a photo array. (Tr. at 538, 646-49, 690-91.) On August 29, 1991, Robinson visited the 106th Precinct to look at a lineup, at which time she identified Manning as the man who stabbed Colon. (Tr. at 460-61, 538.)
Robinson also identified Manning in court in May 1992 (in connection with the first trial of this case). (Tr. at 466.)
C. The Charges and Trial
As a result of the stabbing, Colon suffered three stab wounds to his chest and four to his left arm. He contracted bronchopneumonia and died one month later. (See Tr. at 619-26.) Manning was charged with two counts of murder in the second degree: intentional murder, in violation of New York Penal Law § 125.25[1], and "depraved indifference" murder, in violation of New York Penal Law § 125.25[2]. Manning's first trial, in 1992, ended in a mistrial when the jury was unable to reach a verdict. His second trial was preceded by a Sandoval/Molineaux hearing.
1. The Sandoval/Molineaux Hearing
A Sandoval hearing enables the trial court to determine whether a defendant's uncharged bad acts may be inquired into on cross-examination if he or she testifies. People v. Sandoval, 34 N.Y.2d 371 (1974). AMolineaux hearing enables the court to decide if such acts may be offered by the People as affirmative proof of, for example, the defendant's knowledge or identity. See People v. Molineaux, 168 N.Y. 264 (1981).
On February 23, 1994, the court held a hearing to determine the admissibility of Manning's prior uncharged crimes. In relevant part, defense counsel sought to preclude James and Robinson from testifying that they knew Manning from prior drug transactions. (Pretrial Tr. at 124.) The prosecutor argued that these transactions were far more probative on the issue of identification than they were on the issue of credibility. (Id.) Specifically, the prosecutor argued that Manning's participation in drug transactions with Robinson and James Gaither "goes to the witness's ability to recognize him." Id. at 124-25. Defense counsel countered by arguing that "there is no dispute that she [Robinson] has seen him before and that she had prior contact with him." (Id. at 131-32). Defense counsel contended that, since he intended to argue that Robinson was lying in identifying Manning (as opposed to mistaken), she should not be permitted to testify to her prior drug transactions with Manning. (Id.)
"Pretrial Tr." refers to the transcript of the Sandoval/Molineaux hearing in People v. Manning, Indictment No. 5550-91, Supreme Court, Queens County.
However, as the prosecutor pointed out in his rebuttal argument, the only way for defense counsel to truly take the issue out of the case would be for defense counsel to stipulate that Manning was at Robinson's house on the night in question. Id. at 136. The prosecutor further argued as follows:
But, of course, Mr. Ricco [defense counsel] is not going to stipulate to that. He is going to require, as is his right, to make me prove every element of the crimes charged, including identification, and the case law is, your Honor, that unless the issue of identification is conclusively out of the case, and that's a Second Department, quoting Court of Appeals, and I am quoting from the Escobar case, quote: Unless the defendant's identity is conclusively established, the identification exception set forth in Molineaux should apply to enable the prosecution to adequately prove the defendant's identity. That's the Second Department.
Quoting from People v. Ream, which is 57 N.Y.2d 241. It is very important, I submit, for the witness to be able to explain how he or how she knows the defendant, because that's how the jury will have a basis to decide whether in fact she is giving reliable testimony.Id. at 136-37. Defense counsel declined, however, to stipulate that Robinson knew Manning prior to the events on July 22, 1991. (Id.)
The trial court ruled that the prosecution could inquire into prior "transactions" between Manning and the witnesses. However, the court specifically precluded the prosecution from referring to prior drug sales or drug transactions. (Id. at 138-39.) Thereafter, on February 28, 1994, Manning proceeded to trial.
2. The Evidence of Uncharged Crimes at Manning's Second Trial
Robinson testified regarding her prior relationship with Manning. She said she had seen Manning on more than ten occasions. They were face to face, they spoke to each other, and she gave Manning something. (Tr. at 439-41.) She also engaged in "transactions" with Manning. (Id. at 441-42, 447, 508.) In addition, Manning had come to her house two or three times looking for Red. (See id. at 442-44.)
James also testified that he had "transactions" with Manning. (Tr. at 217.) Timothy Bryant, who lived in the basement apartment at Robinson's house but did not see anything on the night of the incident, testified that he had seen Manning on five to seven previous occasions. Although Bryant did not have any "transactions" with Manning, he testified that he saw Manning on Rockaway Boulevard, the location of the "transactions" to which prior witnesses testified. Bryant characterized his relationship with Manning as friendly. (Tr. at 738, 744-47.)
When asked whether she saw Manning at any other time, she testified that she had seen him on a prison bus. She claimed that on the bus on the way to prison Manning allegedly screamed that she was only accusing him to reduce the sentence she faced on the charge that she violated the conditions of her probation, and then threatened to kill her. (See id. at 473.)
On cross-examination, Robinson also testified that Manning had threatened to kill her on an earlier occasion. Specifically, approximately one month prior to the July 1991 incident, Manning had threatened to kill her and her cousin because the cousin had given him a counterfeit $100 bill. (Tr. at 445-47, 503.)
The jury in the second trial found Manning guilty of depraved indifference murder. On April 15, 1994, he was sentenced to twenty-one years to life in prison.
C. The Direct Appeal
On January 27, 1998, Manning appealed to the Appellate Division, Second Department. He claimed that: (1) there was insufficient evidence to support the jury's verdict; (2) he was prejudiced by the admission of uncharged crimes and prior bad acts evidence; (3) the trial court erred in charging the jury by refusing to give a missing witness charge, by giving improper identification, Allen, and reasonable doubt charges, and by improperly characterizing the defense's theory of the case; (4) he received ineffective assistance of counsel; and (5) his sentence was excessive. On June 1, 1998, the Appellate Division affirmed Manning's conviction. People v. Manning, 673 N.Y.S.2d 1003 (2d Dep't 1998). The court held that the evidence was legally sufficient to establish Manning's guilt beyond a reasonable doubt, and that the conviction was not against the weight of the evidence. See id. at 1004. The court concluded that Manning's remaining claims were "either unpreserved for appellate review or without merit." Id.
On July 15, 1998, Manning sought leave to appeal to the Court of Appeals. In his leave application, he asked the court to consider the issues raised in his brief on direct appeal, as well as claims that: (1) his right to a speedy trial was violated; (2) the trial court erred in refusing to swear selected jurors; and (3) the trial court erroneously admitted a photograph of Manning. The Court of Appeals denied leave to appeal on August 20, 1998. People v. Manning 92 N.Y.2d 900 (1998).
D. The Instant Petition
The instant petition, filed on September 17, 1999, raises four of the claims Manning raised before the Appellate Division: (1) his conviction was not supported by legally sufficient evidence; (2) he was prejudiced by the admission of uncharged crimes and prior bad acts evidence; (3) the trial court erred in charging the jury by refusing to give a missing witness charge and by giving erroneous reasonable doubt, Allen and theory-of-the-case instructions; and (4) his counsel was ineffective.
DISCUSSION
A. The Standard of Review
When a habeas court is considering a claim that was decided on the merits in a state court proceeding, it may grant relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). The two clauses of this provision have "independent meaning." Williams, 120 S.Ct. 1495, 1519.
This provision, added to the habeas statute by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs review of this petition since it was filed after AEDPA's enactment. See Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000).
Under the first clause, a state court decision will be considered "contrary to" federal law if it either "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 1519-20.
Under the second clause, a habeas petitioner may win relief if the state court decision "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 1520. The habeas court's determination that the state court wrongly decided the case is a necessary, but not a sufficient, condition to relief under this provision. "[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. at 1522; see also id. ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."); id. at 1521 (holding that the standard is one of "objective" reasonableness).
B. The Sufficiency of the Evidence
Manning contends that the prosecution failed to prove his guilt beyond a reasonable doubt because its entire case rested on the incredible testimony of a single witness, in violation of the Fourteenth Amendment. Manning provides several arguments in support of his assertion that Robinson's testimony was incredible as a matter of law. He claims that Robinson's testimony is undermined by her long criminal history and motive to fabricate, is not corroborated by the testimony of other witnesses, and is internally inconsistent and contradictory. Manning further asserts that when Robinson's testimony is disregarded as unworthy of belief, the remaining credible evidence was insufficient to establish his guilt beyond a reasonable doubt.
I am not persuaded. All of the arguments advanced by petitioner in this regard are more properly addressed to a jury than to a habeas court. And they were addressed to the jury, by petitioner's able trial counsel. The jury having rejected them, they afford no basis for habeas relief.
A petitioner "advancing a claim based on insufficiency of the evidence bears a very heavy burden." United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983). A state criminal conviction will be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). However, in making this assessment, a court may neither "disturb the jury's findings with respect to witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989) (citing United States v. Stratton, 779 F.2d 820, 828 (2d Cir. 1985)), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "`federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.2d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326). Here, the jury chose to credit Robinson's testimony notwithstanding the inconsistencies alleged by Manning. I therefore will not reevaluate that decision.
Viewing evidence in the light most favorable to the prosecution and presuming that the jury resolved all questions of credibility in the prosecution's favor, I conclude that the Appellate Division correctly held that there was sufficient evidence to establish Manning's guilt beyond a reasonable doubt. The evidence shows that Robinson, who knew Manning from their prior dealings, saw him and others enter her house, and saw Manning stab Colon. Robinson identified Manning at both trials and from a photo array and at a police lineup approximately one month after the incident. That she failed on the day of the incident to tell the police about hearing Manning called by his nickname or to identify him from books of photographs does not render her testimony unbelievable as a matter of law. A rational jury could have reasonably concluded that Robinson was upset and confused from the events she had just witnessed, and that she failed to identify Manning because the 1987 photograph no longer resembled him. (Tr. at 689, 701-04.)
Finally, many aspects of Robinson's testimony were corroborated by other witnesses. Contrary to Manning's contention, James testified that he heard four or five people, but only saw one or two (Mellow and Jose) because it was dark. Although he also stated that he did not see Manning (Tr. at 201-04, 240, 243-44, 248-49), a rational trier of fact could have concluded that this evidence did not contradict Robinson's testimony that there were four or five men, including Mellow, Jose, and Manning. Similarly, although Steven testified that he had never seen Manning before, he never affirmatively stated that Manning was not one of the men who entered Robinson's house. (Tr. at 312, 316, 332.) Nor did Roker testify that she did not see Manning in Robinson's house — she was never asked that question by either the prosecutor or the defense. (See Resp't Mem. of Law at 17 n. 1; see also Tr. at 257-82.) Again, a rational trier of fact could have found their testimony consistent with Robinson's.
In sum, there was sufficient evidence to establish Manning's guilt beyond a reasonable doubt. I therefore conclude that the Appellate Division's decision was not an unreasonable application of clearly established Supreme Court law.
C. The Evidence of Uncharged Crimes
Manning also argues that the trial court erroneously admitted uncharged crimes evidence, particularly Manning's prior "transactions" with prosecution witnesses, in violation of the Fourteenth Amendment. Manning claims that this evidence was not relevant since the only issue in the case was whether Robinson's identification was deliberately false, not merely mistaken. In the alternative, if the evidence was admissible, Manning contends that it should have been limited to the confrontation over the $100 bill (as it had been at the first trial), since the probative value of the other "transaction" evidence was outweighed by its prejudicial effect.
Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question "was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)). The erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins, 755 F.2d at 19. In this regard, petitioner bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1985), affd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision).
Manning has fallen far short of these standards. First, Robinson's identification of Manning was plainly a disputed issue in the case. Given the brevity of Robinson's exposure to Manning at the time of the crime, the fact that she had had numerous prior encounters with him was relevant and quite probative of her ability to identify him. At theSandoval/Molineaux hearing, Manning's counsel was given the opportunity to take this issue — and the disputed evidence — out of the case by stipulating to Manning's presence at Robinson's house on the night in question. Having exercised his right to refuse such a stipulation, it was not error to permit the prosecution to prove the basis of Robinson's ability to identify Manning. See People v. Escobar, 515 N.Y.S.2d 888, 889-90 (2d Dep't 1987) ("`[U]nless the defendant's identity is conclusively established, the identity exception set forth inMolineaux[, infra,] should apply to enable the prosecution to adequately prove the defendant's identity.'" (quoting People v. Beam, 57 N.Y.2d 241, 251 (1982))). In short, although Manning's counsel argued to the jury that Robinson's identification of him was fabricated, rather than mistaken, the latter argument might well have been made if the challenged testimony had been excluded at trial.
Second, Manning has not demonstrated that the evidence was erroneously admitted under New York law. In People v. Molineaux, 168 N.Y. 264 (1901), the New York Court of Appeals established that evidence of prior crimes may be used to prove identity. See id. at 313-18. Applying this rule, New York courts have repeatedly admitted evidence of prior uncharged crimes to prove that a witness had an opportunity to observe the defendant on a prior occasion that enhanced the witness's ability to recognize the defendant at the scene of the crime. See, e.g., People v. Johnson, 629 N.Y. 55, 55-56 (2d Dep't 1995) (trial court in murder case did not err in allowing witness to testify that she recognized defendant from prior robbery of store in which witness worked); People v. Jamerson, 500 N.Y.S.2d 759 (2d Dep't 1986) (trial court in robbery case did not err in allowing witness to testify that he recognized defendant from prior robbery). of course, the rule is not without limitation. New York law "requires that the evidence not only be probative of the crime charged, but also that its probative value "outweighs its potential for prejudice.'" People v. Ely, 68 N.Y.2d 520, 529 (1986) (quoting People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981)). Balancing "the probative value and the need for the evidence against the potential for delay, surprise and prejudice" is a matter committed to the discretion of the trial court. People v. Alvino, 71 N.Y.2d 233, 242 (1987).
Here, the trial court sought to blunt any prejudice to Manning by limiting the prosecution's inquiries to "transactions" — not drug transactions. (Pretrial Tr. at 138-39; Tr. at 432-33.) As the court explained, "[Robinson] is a woman of many transactions. She receives rent from people. She was taking care of foster children. There's a whole variety of transactions." (Tr. at 434.) With respect to the defense's request that the testimony be limited to a "confrontation," the court noted that the term "[t]ransaction is much less inflammatory than confrontation." (Tr. at 142.) Thus, the court concluded that the term "transaction" would not unduly prejudice Manning. As the court limited the testimony to acts that were not crimes (at least as far as the jury was aware), I cannot conclude that the trial court abused its discretion in admitting this evidence under New York law, let alone committed error that would warrant habeas relief.
It is true that, notwithstanding the judge's limitation on the testimony, certain witnesses testified (in non-responsive answers to the prosecutor's questions) that Manning was a drug dealer. For example, Robinson gave the following testimony:
Q. . . . On the morning in question, did you know the name of the man whom you just pointed out in court?
A. I never knew his name. But before, I used to buy drugs from him.
(Tr. at 415.) The defense immediately moved to strike this testimony as prejudicial. The court removed the jury, took argument, granted the motion, and gave a curative instruction to the jury, specifically stating that it should disregard the testimony. (Tr. at 437.) With respect to other challenged questions or testimony, the judge sustained every objection (except one) and struck testimony when the witness had already answered. (Tr. at 245, 438-39, 440, 441, 507, 753.) As to all of the other instances of testimony with which Manning now finds fault, his trial counsel failed to object (or withdrew his objection). (Tr. at 216-17, 244-46, 473, 683, 686 689-90, 744-45, 753.) At the charge conference, the defense requested "some sort of cautionary instruction" directed to the stricken testimony. The court proposed to give its standard instruction on stricken testimony, and the defense again did not object. (Tr. at 765-66.) At no time did the defense request a mistrial.
The following is the single instance (apart from testimony about "transactions") in which the court overruled Manning's objection:
Q. Did the confrontation take place at one particular location or did it occur from one location to another location.
A. From one place to another.
Q. Were other people involved in the —
MR. RICCO: Objection, your Honor. We are going into other bad acts now.
COURT: Overruled. I'll let it go as far as he's gotten. Please start the question again, Mr. Schaeffer.
Q. Were other people involved in this confrontation?
A. A cousin of mine.
(Tr. at 445-46.)
Indeed, for these reasons, it is difficult to discern which evidentiary ruling Manning complains about. See People v. Cordero, 687 N.Y.S.2d 89, 89 (1st Dep't 1999) ("With respect to uncharged crimes evidence that was blurted out by witnesses, defendant requested no other relief after the court struck the offending testimony, or after defendant withdrew his motion to strike. Therefore, defendant failed to preserve his present claims regarding this evidence."). In any event, the Appellate Division did not unreasonably apply clearly established Supreme Court law in concluding that this claim was meritless.
D. The Jury Charge
1. The Procedural Bar
In moving to dismiss the petition, respondent contends that Manning's claims of error in the jury charge are procedurally barred from review by an independent and adequate state ground. Specifically, the respondent asserts that because it argued to the Appellate Division that the charge claims were unpreserved (and, in the alternative, that the claims were without merit), the court's statement that the claims were "unpreserved for appellate review or without merit" constitutes a ruling that the claims were in fact procedurally bared. I disagree.
As I recently held in Farakesh v. Artuz, 2000 WL 1480896 (E.D.N.Y. October 3, 2000), the procedural consequences of the Appellate Division's disposition of claims in the manner employed here is controlled by Reid v. Senkowski, 961 F.2d 374 (2d Cir. 1992) (per curiam). Because "[t]he state court did not clearly and expressly state whether it had examined the merits of [petitioner's] claim[s] or had relied on a procedural default, "the claims are properly subject to federal habeas corpus review." Id. at 377. The Second Circuit has even more recently reached the same conclusion. Fama v. Comm'r of Correctional Services, 2000 WL 1863112, at *4 (2d Cir. Dec. 21, 2000).
2. The Merits
For a jury charge to give rise to federal habeas corpus relief, a petitioner must show "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant under the Fourteenth Amendment. . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction itself so infected the entire trial process that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). In making this determination, a court "must consider the challenged portion of the charge not in `artificial isolation, but rather' in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp, 414 U.S. at 146-47).
a. The Missing Witness Charge
Manning contends that the trial court erred in failing to give a missing witness charge in light of the fact that Norberto Rodriguez, an alleged eyewitness, was not called by the prosecution. He asserts that because the jury was not instructed that it could draw an adverse inference against the prosecution for the failure to call Rodriguez, he was denied due process of law.
The decision whether to give a missing witness charge is committed to the sound discretion of the trial court. See Reid, 961 F.2d at 377 (quoting United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988)). The failure to give such a charge "will rarely support reversal or habeas relief since reviewing courts recognize the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense than any reviewing court." Malik v. Kelly, No. 97-CV-4543 (RR), 1999 WL 390604, at *7 (E.D.N.Y. April 6, 1999) (quoting Torres, 845 F.2d at 1171) (internal quotation marks omitted).
One of the prerequisites for a missing witness is a showing that the witness is within the "control" of that party, as People v. Gonzales, 68 N.Y.2d 424, 429 (1986), and the trial court properly concluded that Manning had failed to demonstrate that Norberto Rodriguez was under the control of the prosecution. (See Tr. at 764.) For such control to be established, it need not be shown that the witness is a law enforcement officer or connected to the District Attorney's office. See Gonzalez, 68 N.Y.2d at 429. For example, an informant with a longstanding relationship with law enforcement, See People v. Vasquez, 76 N.Y.2d 722, 723-24 (1990), or a spouse or other close relative of the complainant, see Gonzalez, 68 N.Y.2d at 430, may properly be deemed under the control of the prosecutor. However, the mere fact that a witness "may have initially reported the incident to the police and appeared before the Grand Jury" does not establish that the witness is in the control of the prosecutor.People v. Rosario, 577 N.Y.S.2d 366, 367 (1st Dep't 1991).
Manning failed to make a specific presentation to the trial court as to the basis for the requested charge. He now contends that there was sufficient evidence in the trial record to conclude that Norberto Rodriguez was under the control of the prosecution. I disagree. At trial, Robinson placed Rodriguez as a witness on the night of the incident. (Tr. at 379, 409, 545-48, 552, 546.) Police officers testified that they spoke with Rodriguez about the crime, and one officer stated that Rodriguez came to the precinct to look at photographs on the night of the incident. (Tr. at 171, 177, 679, 683.) This evidence falls far short of establishing that Rodriguez would have testified favorably to or was under the control of the prosecution. The fact that the witness initially provided information about the crime, or even identified the defendant, does not constitute indicia of control. See Rosario, 577 N.Y.S.2d at 367. Accordingly, Manning has failed to establish that the trial court committed any error, let alone a constitutional one.
Manning also argues that the court could have relied on testimony from the first trial as well as from a hearing before that trial pursuant to United States v. Wade, 388 U.S. 218 (1967). As a different judge presided over those proceedings, the judge at the second trial cannot be expected to have been aware of that testimony.
Rodriguez also identified Manning at a lineup. However, no witness testified to this explicitly at the second trial. Although Robinson testified that the last time she saw Rodriguez was "[w]hen we went to testify to identify the man," (Tr. at 396), she may have simply been referring to when they looked at photographs on the night of the incident.
b. The Theory of Defense
Manning also asserts that the trial court erred in failing to charge the jury on the defense's theory that Robinson intentionally misidentified Manning in order to frame him for the crime. Specifically, he contends that he adduced evidence throughout the trial that Robinson's misidentification was motivated either by a feud over a counterfeit $100 bill or by her desire to have her probation violation warrant lifted. Thus, Manning argues, the trial court's charge regarding Robinson's alleged mistaken identification deprived him of his right to due process.
"[A] criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous that defense may appear to the trial court." United States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990). Although a trial court has "`broad discretion'" in determining which facts to include in its charge, it "`is circumscribed by the requirement that the charge be fair to both sides.'" United States v. Allen, 127 F.3d 260, 264-65 (2d Cir. 1997) (quoting United States v. GAF Corp., 928 F.2d 1253, 1263 (2d Cir. 1991)). A conviction will not be overturned unless the omitted instruction is "`legally correct, represents a theory of defense with a basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge.'" Id. at 264 (quotingUnited States v. Vasquez, 82 F.3d 574, 577 (2d Cir. 1996)).
The trial court instructed the jury on the issue of identification as follows:
You have become aware, during the course of this trial, that a main issue in this trial is the identification of the defendant, Bernard Manning, as a person who committed the crimes charged in this Indictment on or about July 22, 1991.
. . . .
In this case, the evidence that was offered to establish that the defendant, Bernard Manning, was the actual perpetrator of the crimes was the testimony of Ethel Robinson. It is the Court's recollection that this witness testified to an incident that occurred sometime around 4:00 a.m. on July 22, 1991, in which the deceased, Louis Colon, suffered stab wounds. It is this Court's recollection that the witness further testified to having allegedly observed the defendant stick Louis Colon with something at that time and place.
Now, members of the jury, it is, of course, your recollection of the testimony that controls. It is not the Court's, nor counsel's. If your recollection of the evidence is different from that of the Court's or counsel's; remember, it's yours that controls.
Now, in addition to the just-mentioned eyewitness's testimony, the People have offered other evidence which they contend also serves to establish that the defendant was the actual perpetrator of the crimes charged.
You will recall that Ethel Robinson testified that she saw and identified the defendant at a police lineup on August 29, 1991, at the 106th Precinct. The evidence is that the crime charged was committed on July 22, 1991. This trial is now being held some two years and eight months later. It is therefore relevant to establish that approximately one month after the commission of the crime, which the witness's memory was perhaps fresher than at present, Ethel Robinson picked out and identified this defendant as the perpetrator of the crimes at a lineup.
This witness also testified as having identified this defendant, Bernard Manning, at a prior court proceeding in this case. Such prior identification of the defendant, Bernard Manning, as the perpetrator, may be considered by you together with all of the other relevant evidence in the case. It may be considered by you, in your evaluation of the accuracy of the witness's identification of this defendant here in court as the perpetrator of the crimes charged.
I instruct you that the witness's prior identification of the defendant in the lineup should nevertheless be scrutinized by you with care. The People contend that such evidence tends to establish that the witness, in identifying this defendant here in court as the perpetrator, is not relying solely on her now perhaps stale memory of the perpetrator on the day of the crime.
However, the defendant contends that the witness, Ethel Robinson, was mistaken when she identified him as the perpetrator at the lineup; that because of such previous mistake, she is now identifying him in court, not the actual perpetrator, but, instead, the defendant she mistakenly identified at the lineup and at the prior proceeding in this case.
As evidence of a mistake in identification the defendant points to the testimony at this trial which indicated that on July 22, 1991, just hours after the alleged incident, Ethel Robinson viewed a photograph book containing a photograph of the defendant and she failed to identify him at that time to Detective Creegan.
The court also repeated this charge in response to a jury note. (Tr. at 964-73.)
Manning has failed to establish that the trial court committed a constitutional error by failing to charge the jury on his theory of the defense. As an initial matter, Manning arguably raised two defense theories regarding Robinson's identification. In his summation, Manning's counsel argued to the jury that Robinson had a motive to lie, either for revenge, (Tr. at 790, 797, 804-05), or self-preservation, (Tr. at 785), or that she was mistaken due to her use of drugs, (Tr. at 790, 803), her belief of rumors, (Tr. at 805), or her false assumption of guilt by association, (Tr. at 805). For example, Manning's counsel stated:
I don't know why she's coming in here. I suspect it's because of the ongoing incident. I suspect that it's totally consistent with everything she knows — we know about her. I suspect that when she had the opportunity a month after Louis was stabbed and Detective Creegan found her or called her and she came in to see that photo array, she looked at that photo array and she said to herself, now I can get even with this guy; now I can get the guy I don't like. Now I can bum this guy. That's a possible explanation. That's a reasonable explanation. She had 30 days to dream it up in her mind. or maybe she was just an opportunistic person and when she saw the photo array with Bernard's picture in it decided that must be the guy. Maybe she runs around the street and she hears these rumors. Maybe she has the same connection that James Gaither had. Maybe she's saying guilt by association, if he hangs out with Mellow, they probably did it.
(Tr. at 804-05.) The trial court's instruction regarding mistaken identification, therefore, arguably advanced Manning's alternative defense. Thus, the only issue here is whether the court erred, absent any objection from defense counsel, (Tr. at 934), in failing to include an additional instruction regarding the defense's theory of intentional misidentification.
In addition to failing to object after the court initially gave the identification charge, defense counsel did not object when the court reread that charge in response to a jury note. Indeed, defense counsel requested that the court read the charge, without amendment or alteration. (Tr. at 959.)
Although this defense theory is both legally correct and supported by the record, it was effectively presented elsewhere in the charge. The legal principles essential to the defense theory that Robinson intentionally misidentified Manning are the credibility of witnesses and the interest of witnesses. Here, the trial court instructed the jury in detail on the issue of credibility and interest. First, the court gave a general charge on credibility that instructed the jury to consider whether (1) the witness intentionally told a falsehood; (2) the witness had an opportunity to observe the facts about which she testified; (3) the witnesses had a faulty recollection; and (4) the witness had a bias, interest, or prejudice. (Tr. at 878-79.) The court also gave an interested witness charge, by which it told the jury that it should assess whether Robinson had an incentive to testify falsely because of a promise to inform her probation officer that she had testified as a prosecution witness. (Tr. at 888.) Then, after the identification instruction, the court revisited the issue of credibility. In relevant part, the court stated:
You must also evaluate the credibility of Ethel Robinson as you observed her when she testified here in court. You must evaluate her general intelligence, her capacity for observation, reasoning and memory and determine whether you are satisfied that she is a reliable eyewitness who has the ability to observe and the capacity to remember the facial features, body, clothing, and other characteristics of the perpetrator.
You must also take into consideration all the evidence which has been offered to establish that the defendant is or is not the perpetrator, including any evidence of a prior relationship between Ethel Robinson and the defendant, and how that might have influenced the testimony of the witness.
(Tr. at 924-25.)
In light of these additional charges, the trial court effectively presented the jury with Manning's alternate defense theory. See, Irizarry v. Keane, No. CV-91-4610, 1992 WL 245982, at *5-*6 (E.D.N.Y. Aug. 31, 1992) (holding defendant not denied constitutionally fair trial where court, having given general charges on witness credibility and prosecution's burden to prove every element of crime, failed to emphasize that prosecution bore burden of proving identity). Therefore, recognizing that a mere "omission or an incomplete instruction is less likely to be prejudicial than is an actual misstatement of the law," Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977), I cannot conclude that the trial court's failure to charge the defense theory of intentional misidentification "so infected the entire trial process that the resulting conviction violates due process," Cupp, 414 U.S. at 146-47.
Where the state court is silent as to the specific basis for its decision, as it was here, the application of the standard of review contained in 28 U.S.C. § 2254 (d)(1) is somewhat more complicated. However, I need not resolve the issue of whether the more deferential standards apply under these circumstances. For even if I were to determine that the trial court committed a constitutional error by failing to charge the jury on the defense's intentional misidentification theory, I would nonetheless conclude that the Appellate Division's decision was a reasonable application of Supreme Court law. See Williams, 120 S.Ct. at 1522.
c. The Reasonable Doubt Charge
Manning further contends that, although the trial court initially charged the jury properly regarding reasonable doubt, the court nonetheless erred when it redefined reasonable doubt in a supplemental charge during jury deliberations. Specifically, he asserts that this supplemental charge constituted constitutional error because it (1) reversed the burden of proof, which was exacerbated by the use of mandatory language, and (2) increased the amount and quality of the doubt required for acquittal. Again, I disagree.
A charge on reasonable doubt violates the Constitution only if there is a reasonable likelihood that the jury understood the instructions to allow conviction even when the government has not established every element of the charged offense beyond a reasonable doubt. See Justice, 45 F.3d at 34 (quoting Cupp, 414 U.S. at 146-47). The Second Circuit has identified several disfavored elements in reasonable doubt jury charges, two of which are relevant here. First, "charges which state or imply that a juror ought to be able to `articulate' or `give' a reason for acquittals present dangers of shifting burdens of proof because the jury may look to the defendant to supply that reason." Beverly v. Walker, 118 F.3d 900, 903 (2d Cir. 1997); see also Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir. 1996). Second, courts have criticized charges which state that "reasonable doubt must be based upon some good sound substantial reason." Id. at 903-04.
However, even where such disfavored or impermissible language is present, courts will uphold the defendant's conviction so long as it is not reasonably likely that the jury was misled about which party bore the burden of proof. See id. at 903. For example, in Beverly, the Second Circuit refused to grant habeas relief where the trial court repeatedly stated that the burden of proof rested at all times with the prosecution, notwithstanding the court's disfavored instruction that the jurors should be able to communicate a reason for their doubt. See id. Similarly, the Second Circuit rejected the claim that the trial court's instruction that reasonable doubt must be based on "`some good sound substantial reason'" warranted habeas relief. Id. The court reasoned that, in the context of the overall instruction, it was "not reasonably likely that the jury understood these words to describe the quantity of doubt necessary for acquittal, rather than as a contrast to doubt based on impermissible criteria such as conjecture or speculation." Id. at 904.
In this case, in response to a jury note requesting the definition of reasonable doubt in "simple" terms, (Tr. at 997), the trial court gave the following supplemental instruction:
Now, you have to analyze the expression "reasonable doubt" in its two components. You have the word "reasonable" and you have the word "doubt." And obviously, "reasonable" is a word that modifies "doubt."
As I told you yesterday, and the day before, in my instructions, a reasonable doubt is a doubt for which some reason can be given, and that means it must be a doubt for which a juror must be able to articulate, must be able to speak a reason for that doubt. As I instructed you, a reasonable doubt or, rather, a doubt is not a reasonable doubt if it's based on some guess or whim or speculation unrelated to the evidence in the case. That's not a reasonable doubt.
A doubt — a reasonable doubt is a doubt for which some reason can be given. A reasonable doubt must arise from the evidence or the lack of evidence in the case. A reasonable doubt can also be a doubt that could arise because of the insufficiency or the lack of the evidence in the case. And that's the point that I'm trying to make. A reasonable doubt must come from the evidence or the lack of evidence, and has to be something that you can articulate, that you can speak.
And I've also told you in my instructions that a reasonable doubt, or, rather, a doubt of guilt is not a reasonable doubt if it's based on sympathy or from the desire by a jury to avoid doing a disagreeable duty. And that's also something that I mentioned yesterday and the day before.
So, once again, a reasonable doubt is a doubt for which some reason can be given, for which some reason can be spoken. That's the best definition that I can give you of a reasonable doubt.
(Tr. at 1002-03.) Defense counsel again failed to object to this supplemental charge. (Tr. at 1007-08.)
Manning's arguments fail in both respects referred to above. First, although the supplemental charge asked the jurors to "articulate" or "speak" a reason for their doubt, an arguably disfavored suggestion under Second Circuit law, there is no reasonable likelihood that the jury failed to understand that the burden of proof rested at all times with the prosecution. In the original charge, the court repeatedly emphasized that the People bore the burden of proving Manning's guilt beyond a reasonable doubt. (Tr. at 879-81 ("This burden I have referred to never shifts. It is at all times upon the People of the State of New York.");see also Tr. at 883, 892, 894, 897, 899-900, 909-10, 914, 915, 916-17, 919, 920.) In other supplemental charges, the court also stressed this burden. (Tr. at 975, 976, 977-78, 980.) Furthermore, in response to a prior jury note requesting, inter alia a readback of the reasonable doubt charge, the court reread in its entirety its original instruction on the definition of reasonable doubt, an instruction which Manning concedes was proper. (Tr. at 977-80.) This charge did not ask the jurors to articulate any reason for their doubt. Thus, in light of all of these additional instructions, it was not reasonably likely that the court's disfavored articulation (or its alleged exacerbation by the use of mandatory language such as "must" or "has to be") misled the jury regarding the burden of proof See Beverly, 118 F.3d at 903.
Second, the supplemental instruction did not increase the quantum of doubt required for acquittal. The trial court merely stated that "a reasonable doubt is a doubt for which some reason can be given," not that the reason must be good, sound, or substantial. (Tr. at 1002 (emphasis added).) As the Second Circuit has recognized, this instruction is identical to New York's pattern instruction on reasonable doubt. See id. (New York's pattern jury instructions "define reasonable doubt in part as "a doubt for which some reason can be given.'" (quoting I Criminal Jury Instructions New York § 6.20 (1983))).
Furthermore, it is clear from the context of the overall instruction that the court simply intended to clarify that the doubt should not be based on impermissible criteria. For example, the court explained that a reasonable doubt "must arise from the evidence or the lack of evidence in the case," and may not be based on "some guess or whim or speculation unrelated to the evidence in the case" or on "sympathy or from the desire by a jury to avoid doing a disagreeable duty." (Tr. at 1002-03.) Accordingly, there is no reasonable likelihood that the jury applied the improper standard. See Beverly, 118 F.3d at 904. Thus, Manning has established neither a constitutional error nor an unreasonable application of Supreme Court law.
d. The Allen Charge
Lastly, with respect to the jury charge, Manning argues that the trial court gave a coercive and unbalanced Allen charge. Specifically, he contends that the charge impermissibly failed to caution jurors not to surrender their conscientiously held beliefs. This argument likewise fails.
First approved in Allen v. United States, 164 U.S. 492 (1896), the term "Allen charge" refers to an instruction given to a deadlocked jury.
When a trial court receives notice that the jury is deadlocked, it may give a so called Allen charge to encourage the jurors to continue their deliberations in order to reach a verdict. See United States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991). However, a criminal defendant is also entitled to an uncoerced jury verdict. See Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999) (quoting Lowenfield v. Phelps, 484 U.S. 231, 241 (1988)). A trial court, therefore, must take care not to give a supplemental charge that coerces undecided jurors to reach a verdict. The Second Circuit has recognized that "`[c]oercion may be found when jurors are encouraged to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant's guilt.'"Id. at 279 (quoting United States v. Melendez, 60 F.3d 41, 51 (2d Cir. 1995)). Accordingly, a "necessary component of any Allen-type charge requires the trial judge to admonish the jurors not to surrender their own conscientiously held beliefs." Id.
Here, upon receiving a note indicating that the jury was at an "impasse," the trial court instructed the jury as follows:
I think you will all recall that we began jury selection in this matter on Tuesday, February 22d 1994. At that time, we told you that you do indeed have a heavy and an important responsibility, and that responsibility is both to the People of the State of New York and the defendant in this case, Bernard Manning. They are looking to you, both the People and the defendant, are looking to you for a verdict in this case, if that is at all possible. And I want to emphasize that trial by jury is perhaps the most precious right that we enjoy under the Constitution of both the United States and the State of New York.
. . . .
Now, I want to remind you that none of you are advocates for either one side or the other. You are finders of facts. You are to find the facts in this case based upon the evidence that has been presented and my instruction regarding the law. Each of you has an obligation to listen respectfully to and to consider the views of your fellow jurors. That's why you've been selected. You've been selected because we want your combined experience; your experience in life, your education, your attitude, your beliefs — we want it all — with a view towards attempting to resolve this matter.
. . . .
Now, again, I want to urge you all to share your views with each other. Do not close your minds. Consider the arguments that are being made by your fellow jurors, and if you determine, after a review of what has been presented, that perhaps your own view is erroneous or needs to be reconsidered, you should not hesitate to reconsider, if that's what you believe the correct thing to do is.
Now, I note that we are in the second day of deliberations here, but excluding the time in which you were sequestered, excluding the time for the readback and my reinstruction and meal time and everything else, you've probably only been considering this case for some five or six hours. And that is not a particularly long period of time in light of the issues that have been presented in this case and the amount of time that has been invested thus far in the trial of this case.
So once again, I'm going to ask that you in good faith review the evidence, review my instructions as to the law, and review what your fellow jurors have been stating during the course of these deliberations. And if there is any further guidance that I can give you regarding any legal issues or anything else that I can clarify for you, specify that in writing, in another communication, through your foreperson, and I will attempt to address that.
But for now, I urge you to return to the jury room and to continue your deliberations in accordance with some of the advice and guidance that I've given you here, and let's try and fulfill our duty as jurors and let's see if this case can be resolved, if at all possible, within my instructions regarding the law and your findings of fact, based upon the evidence.
(Tr. at 985-89.) Defense counsel offered no objection to this charge. (Tr. at 989.)
Although the trial court did not specifically instruct the jury "not to surrender their conscientiously held beliefs," its instruction accomplished the same purpose in substance. The court charged, in relevant part, that the jury should "[c]onsider the arguments that are being made by your fellow jurors, and if you determine, after a review of what has been presented, that perhaps your own view is erroneous or needs to be reconsidered, you should not hesitate to reconsider, What's what you believe the correct thing to do is." (Tr. at 987 (emphasis added).) The court, notably, did not invite the jurors to abandon their doubts without any principled reason. Rather, it warned the jurors that they should not "reconsider" their views unless they believed it was "the correct thing to do." This language was sufficiently cautionary to prevent the charge from being coercive.
Moreover, this cautionary language reinforced the admonition the jurors had received in the original charge. The court had previously instructed the jurors "to consult with one another and to deliberate with a view towards reaching an agreement, if you can do so without violating your individual beliefs." (Tr. at 928 (emphasis added).) It had further charged that the jurors "should not be influenced to vote in any way on the questions submitted to you by the single fact that a majority of the jurors or any of them favor such a decision." (Tr. at 929.) In light of these instructions, I find that the Allen charge was not impermissibly coercive.
Smalls v. Batista is not to the contrary. In Smalls, the Allen charge did not contain any cautionary language whatsoever. 191 F.3d at 275. Furthermore, the charge urged the jurors (three times) to "convince" others of the "correctness" of their views. Id. In the Second Circuit's opinion, it was "this lack of cautionary language, especially when coupled with the trial court's thrice repeated direction that the jurors convince each other, that render[ed] the charge coercive and a violation of [the petitioner's] constitutional rights to due process and a fair trial." Id. at 280. Here, in contrast, the minority jurors were not instructed that they had no other choice but to convince or surrender their views. To the contrary, the court specifically cautioned the jurors to "reconsider" only "if that's what you believe the correct thing to do is." This Allen charge, therefore, did not deprive Manning of his rights to due process and a fair trial.
Moreover, even if this charge were unconstitutional, I cannot conclude that the Appellate Division's decision constituted an unreasonable application of Supreme Court law. See Williams, 120 S.Ct. at 1522.
E. Ineffective Assistance of Counsel
Lastly, Manning asserts that he received ineffective assistance of counsel, in violation of the Sixth Amendment. He contends that his counsel was deficient in two central respects: (1) he pursued an incompetent and prejudicial trial strategy; and (2) he repeatedly failed to make appropriate objections. These arguments are unavailing.
In determining a claim of ineffective assistance of counsel, the standard is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Under Strickland, two elements must be established in order for a petitioner to prevail. First, the petitioner must show that counsel's performance was deficient, falling below an objective standard of reasonableness that is measured against "prevailing professional norms." Id. at 688. However, lower courts should attempt to "eliminate the distorting effects of hindsight . . . [and] evaluate the conduct from the counsel's perspective at the time." Id. at 689. Thus, courts must grant considerable deference to the decisions of counsel, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690.
Second, the petitioner must show that counsel's performance prejudiced the outcome of the proceedings. Id. at 687. It is insufficient to show merely that counsel's errors had "some conceivable effect" on the outcome. Id. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Manning argues that his counsel's strategy was ineffective primarily because he elicited that Robinson was unable to pick Manning's photograph out of police photograph books on the night of the incident. He contends that this testimony prejudiced him because it informed the jury that Manning had previously been arrested (because his photograph was in a "mugshot" book) and allowed the prosecution to introduce that Robinson successfully identified him from a photo array (which contained a more recent photo), thereby notifying the jury that Manning had been arrested a second time.
As Manning has repeatedly emphasized in this petition, the defense's theory, at least in part, was that Robinson intentionally misidentified Manning well after the crime. The testimony elicited by defense counsel that Robinson did not identify Manning from photograph books immediately following the incident was highly probative of that theory. Although an adverse consequence of this testimony was that the prosecution elicited that Robinson later identified Manning from a photo array, counsel could have reasonably taken that risk as part of a sound trial strategy. Thus, defense counsel's act in eliciting this testimony does not constitute ineffective assistance. See Strickland, 466 U.S. at 689.
Contrary to Manning's suggestion, Robinson indeed testified that she was not able to identify Manning from the photograph books. (Tr. at 509.) Although defense counsel also attempted to impeach her with her testimony from the first trial, in which she stated that she did recognize Manning from the photograph books, (Tr. at 533-35), I cannot conclude that this impeachment negates the inference that the evidence was originally elicited as part of a reasonable trial strategy.
The other claims of ineffective assistance are similarly deficient. Counsel's elicitation of evidence that (1) Manning had threatened to kill Robinson and her cousin over a counterfeit $100 bill and (2) Robinson was afraid of Manning due to a confrontation on a prison bus provided Robinson, according to Manning's theory, with a motive to misidentify him intentionally. Again, this evidence carried the adverse consequence of suggesting to the jury that Manning was a violent person. However, this trade-off constituted a reasonable trial strategy to attack Robinson's credibility.
Manning's argument that his trial counsel was constitutionally ineffective in that he poorly framed questions to Robinson on cross-examination is meritless. Robinson blurted out that she had bought drugs from Manning (Tr. at 415, 507), but these answers were entirely nonresponsive to counsel's questions. Manning's counsel thus can hardly be deemed ineffective on that basis.
Finally, Manning argues that his defense counsel provided ineffective assistance because he failed to object to the jury instructions regarding the defense theory of the case, reasonable doubt, and the Allen charge. As I have already found that the court committed no error in its jury charges, it follows that Manning's defense counsel was not constitutionally ineffective by failing to object.
In sum, Manning has failed to establish that his counsel's performance fell below an objective standard of reasonableness, or that there is a sufficient probability that the outcome of the proceeding would have been different if another strategy had been followed. Accordingly, Manning was not denied his Sixth Amendment right to counsel.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. In addition, I refuse to issue a certificate of appealability because Manning has not presented a "substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996) (quoting Section 102 of the AEDPA).