Opinion
20 Civ. 3076 (PAE) (GWG)
04-19-2022
DONELLE MURPHY, Petitioner, v. WARDEN OF ATTICA CORRECTIONAL FACILITY, Respondent.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Petitioner Donelle Murphy brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his convictions for attempted rape in the first degree, burglary in the second degree, and sexual abuse in the first degree in New York state court, for which Murphy was sentenced to a prison term of fifteen years. Murphy's petition contends that he was denied effective assistance of counsel and the right to control his defense, that his due process and confrontation rights were violated, that the trial court erred in denying a missing witness charge, and that the evidence was legally insufficient. For the reasons stated below, the petition should be denied.
See Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, filed June 16, 2020 (Docket # 3) (“Pet.”); Memorandum in Support of Petition, annexed as Ex. A to Pet. (“Pet. Mem.”); Letter from Petitioner, filed June 16, 2020 (Docket # 4) (“Stay Let.”); Answer, filed Nov. 30, 2020 (Docket # 25); Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus, filed Nov. 30, 2020 (Docket # 26) (“R. Opp.”); Letter from Petitioner, filed Dec. 21, 2020 (Docket # 31) (“P. Reply”); Memorandum of Law in Opposition to Petitioner's Request for a Stay, filed July 14, 2021 (Docket # 41); State Court Transcript of Proceedings, dated July 24, 2014, filed July 27, 2021 (Docket # 43) (“Hearing Tr.”); State Court Transcripts of Proceedings, filed July 27, 2021 and Aug. 5, 2021 (Docket ## 44-48) (“Tr.”).
Murphy has also moved for a stay of his petition in order to allow him to exhaust a claim in state court that was never previously presented. For the reasons stated in an Order issued separately, the application for a stay is denied. Also, for the reasons stated in that Order, we have assumed that Murphy wishes to have the Court deem that his amended petition excludes this unexhausted claim.
I. BACKGROUND
Murphy was charged with burglary in the first degree as a sexually motivated felony (Tr. 427), attempted rape in the first degree (Tr. 434), and sexual abuse in the first degree (Tr. 437). The jury was also instructed on the lesser included offenses of burglary in the first degree and burglary in the second degree. (See Tr. 432-433).
A. Trial Evidence
The People called eleven witnesses: Detective Omar Hernandez (Tr. 40-65), criminalist supervisor Stephanie O'Shea (Tr. 66-80), criminalist Craig O'Connor (Tr. 81-104), police officer Robinson Martinez (Tr. 104-32), Joel Steiger, the general manager of a restaurant near the crime scene (Tr. 135-39), Joseph Eltahawy, the complainant's next-door neighbor (Tr. 140-53), Avrohom Gerstle, an EMT (Tr. 153-72), Christine Moronta, a nurse and sexual assault forensic examiner (Tr. 173-208), Detective Randolff Pinard (Tr. 208-51), Sergeant Angel Burgos (Tr. 256-81), and Detective Josh Ulan (Tr. 281-318). Murphy, against the advice of counsel, testified in his defense. (Tr. 320-67). In brief, the evidence at trial was as follows:
At approximately 2 a.m. on December 16, 2013, Police arrived at the home of K., a Japanese student studying in New York, after receiving a 911 call. (Tr. 258, 263). K. told police that an individual had knocked on her apartment door claiming to have her wallet. (Tr. 261). K. said that once she opened the door, the man pushed her inside her apartment, knocked her to the floor, and “got on top of” her. (Tr. 110, 261-62). K. reported that the man groped her, pulled her underwear down to her knees, exposed his penis, and attempted to rape her. (Tr. 110, 261-62). K. also told police that the man was armed with a knife. (Tr. 261, 272). The man fled K.'s apartment after a neighbor, having heard K.'s screams, knocked on the door. (Tr. 262). Testimony was adduced as to K.'s statements made at the scene to Sergeant Burgos, (Tr. 25980), and during an examination by nurse Christine Moronta, (Tr. 177-88).
Because petitioner was convicted of a sex offense, we are maintaining the identity of the victim as confidential in accordance with Section 50-b of the New York Civil Rights Law.
Murphy testified that he saw K. inside a McDonalds in Manhattan, observed her acting as if she were intoxicated, and left the McDonalds at the same time she did. (Tr. 332-33). Murphy stated that, when K. dropped her wallet crossing the street, Murphy picked it up, and began walking and talking with her. (Tr. 334-35). Murphy testified that he then returned to the McDonalds with the wallet, discovered that it did not contain any money, and resolved to return it to K. at her apartment. (Tr. 335-37). Murphy testified that he knocked on K.'s door, showed her that he had her ID, and that she began to loudly ask who he was and why he had her wallet. (Tr. 339-40). He said that he then covered K.'s mouth with his hand to silence her yelling, “ended up inside [K.'s] apartment,” and fled after hearing K.'s neighbor open his door. (Tr. 340 44, 366). Murphy testified that he never exposed his penis, groped K., or attempted to remove her clothing. (Tr. 343-44).
B. Suppression Hearing
Before trial, the Court held a hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), to determine whether any statements made by Murphy to the police should be suppressed. The only witness was Detective Josh Ulan. The evidence at the hearing was as follows:
Murphy was arrested on December 20, 2013. (Hearing Tr. 4-5). Detective Josh Ulan began a “dialogue” with Murphy, asking about his life and permitting Murphy to speak generally on matters unrelated to his arrest. (Hearing Tr. 12-13). After ninety minutes of talking, Murphy waived his Miranda rights and told the police an account of what happened with K. (See Hearing Tr. 14-16). While sitting at a McDonalds restaurant, Murphy observed a woman who appeared intoxicated. (Hearing Tr. 18-19). After the woman left the McDonalds, she fell while crossing the street, causing her to drop her purse, wallet, and cell phone. (Hearing Tr. 19). Although the woman picked up her purse and cell phone, she failed to pick up her wallet, which Murphy then picked up. (Hearing Tr. 19). Murphy told police that he spoke with the woman, who assured him that she was not excessively intoxicated, and then walked with her to her building. (Hearing Tr. 19-20). However, he did not go to her apartment or return her wallet. (Hearing Tr. 20). Instead, Murphy returned to McDonalds, checked the wallet for cash, and, finding none, crafted a plan to return the wallet to the woman in the hope of obtaining a cash reward. (Hearing Tr. 20-21). Once the woman opened her apartment door, however, she began screaming, and Murphy covered her mouth so that she would stop screaming. (Hearing Tr. 21). The two “ended up inside her apartment,” from which Murphy fled after hearing the neighbor approaching. (Hearing Tr. 21-22).
Murphy prepared a brief written statement admitting these facts. (Hearing Tr. 25). Afterwards, at Detective Ulan's urging and with Detective Ulan's assistance, Murphy prepared a more thorough statement. (See Hearing Tr. 26-28).
The next day, Murphy was interviewed by a prosecutor with the Early Case Assessment Bureau of the New York District Attorney's Office, (Hearing Tr. 31), which began with the following exchange:
[PROSECUTOR]: Mr. Murphy, my name is Sarah Marquez, I am an assistant district attorney here in New York County, okay? I'm one of the people who is investigating this case and trying to figure out what happened and making decisions about how we're going to handle the case, okay? This is your opportunity to tell me your side of the story and what happened, okay?
[MURPHY]: Alright.
....
[PROSECUTOR]: You have the right to consult an attorney before speaking to the police or me and have an attorney present during any questioning, do you understand?
[MURPHY]: Yes, can I ask a question about that, one thing. ‘Cause he kind of like, informed me on that. You know, we see this show on TV and we think oh, you can ask for a lawyer, and a lawyer will come and then they will speak with you. If I ask for a lawyer, does that, like, end our conversation for the day today?
[PROSECUTOR]: If you ask, if you ask for a lawyer right now, we probably won't continue speaking. Okay? So knowing that, do you still want to speak to me?
[MURPHY]: [Pause] That sucks. That's a shitty question. Um, um, I guess I'll continue.
[PROSECUTOR]: Okay. If you cannot afford an attorney, one will be provided for you. Do you understand?
[MURPHY]: Yes.
[PROSECUTOR]: Now that I have advised you of your rights, are you willing to answer questions?
[MURPHY]: Yes.See Pet. Mem. at 9-10; R. Opp. at 73-74. Murphy proceeded to give a videorecorded statement, which gave substantially the same account as he provided to the police following his arrest. See Pet. Mem. at 10-11; R. Opp. at 74.
Defense counsel moved to exclude each of the statements Murphy made to police - the two written statements as well as the videotaped statement. (Hearing Tr. 58-60). Counsel argued generally that police had inappropriately delayed reading Murphy his Miranda rights, particularly during the ninety-minute introductory conversation, which counsel called a “ruse.” (Hearing Tr. 58). This motion was denied. (Hearing Tr. 65).
C. Trial and Subsequent Proceedings
Following a five-day trial, the jury found Murphy not guilty on the first count, burglary in the first degree as a sexually motivated felony, and not guilty on the lesser-included offense of burglary in the first degree. (Tr. 452). The jury found Murphy guilty of the lesser-included offense of burglary in the second degree, attempted rape in the first degree, and sexual abuse in the first degree. Id.
At sentencing, Murphy was represented by a new attorney, Steven Fusfeld. (Tr. 455). The Court deemed Murphy a violent predicate felon based on his prior conviction of rape in the second degree (Tr. 456), and sentenced him to serve fifteen years with five years post-release supervision on the burglary and attempted rape charges, and to serve a term of seven years with ten years post-release supervision on the sexual abuse charge, all to run concurrently. (Tr. 48788).
Following his sentencing, defendant filed a motion to vacate judgment pursuant to N.Y. Crim. Proc. Law § 440.10, alleging that he was denied effective assistance of counsel. See Decision and Order, dated Jan. 16, 2018, annexed as Ex. D to Answer. Murphy alleged that his trial counsel was ineffective for advancing an untenable misidentification defense based on a misunderstanding of the law, for failing to effectively argue in favor of the suppression of evidence, and for failing to object during the prosecution's summation. See Id. at 1. The trial court found no merit to Murphy's claims regarding the misidentification defense, concluding that - while “not an effective strategy in light of the strong evidence of identity at trial” - it did not render counsel's representation ineffective as a whole. Id. at 2. The court also rejected Murphy's remaining two arguments, reasoning that counsel's approach could be “attributed to tactical trial decisions.” Id. at 1 (quoting People v. Ryan, 90 N.Y.2d 822, 824 (1997)).
In June 2018, Murphy filed a counseled direct appeal of his convictions and the denial of his N.Y. Crim. Proc. Law § 440.10 motion. See Murphy's Appellate Division Brief, filed June 2018, annexed as Ex. A to Answer. Murphy argued that he was denied effective assistance of counsel through his attorney's (1) mistaken pursuit of a misidentification theory, id. at 34-36; (2) failure to seek suppression of a videotaped statement Murphy made to police, id. at 32-33; and (3) failure to object to improper statements made by the prosecution during summation, id. at 3536. Murphy also alleged that (1) his counsel abrogated his rights to testify and control his defense by urging the jury to disregard his testimony, id. at 61-65; (2) his right to a fair trial, as well as his rights to confront his accuser, present a defense, and due process, were violated through the prosecution's use of the hearsay statements of an absent witness whose credibility went unchallenged, id. at 65-85; (3) the trial court erred in declining to issue a missing witness charge, id. at 86-90; (4) his convictions were against the weight of the evidence, id. at 91-93; and (5) his sentence should be reduced in the interest of justice, id. at 93-96.
On January 31, 2019, the New York Supreme Court, Appellate Division, First Department, denied Murphy's appeal. People v. Murphy, 168 A.D.3d 632, 634 (1st Dep't 2019). The First Department held that Murphy's convictions were not against the weight of the evidence and that Murphy had received effective assistance of counsel. Id. at 632-33. The appellate court also held that there was no error in the evidentiary rulings Murphy contested, nor in the trial court's decision not to issue a missing witness charge. Id. at 633-34.
The Court of Appeals denied Murphy's request for leave to appeal. See People v. Murphy, 33 N.Y.3d 952 (2019).
D. The Instant Petition
Murphy, proceeding pro se, filed a petition for a writ of habeas corpus with this Court on April 16, 2020. On June 16, 2020, Murphy submitted an amended petition that more fully complied with the Court's procedural requirements. See Pet. Murphy's amended petition advances verbatim many of the arguments featured in his brief from his appeal of his convictions in New York state court.
Murphy added an additional claim: that the Mutual Legal Assistance Treaty (the “MLAT”) between the United States and Japan provided a means of obtaining testimony from K., and that failure to utilize the MLAT for this purpose was an error of law by the trial court that worked a violation of his speedy trial rights. See Pet. at 13. Murphy also alleges that it constituted ineffective assistance of counsel for his attorney not to have invoked the MLAT to seek K.'s testimony. Id. For the reasons stated in the order denying the stay, this claim is unexhausted and is deemed to have been removed from the petition.
II. LEGAL STANDARD FOR PETITIONS BROUGHT PURSUANT TO 28 U.S.C. § 2254
A petition for a writ of habeas corpus may not be granted with respect to any claim that has been “adjudicated on the merits” in state court unless the state court's adjudication:
(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.28 U.S.C. § 2254(d).
For a claim to be “adjudicated on the merits” within the meaning of section 2254(d), it must “finally resolv[e] the parties' claims, with res judicata effect,” and it must be “based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Sellanv. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As long as “there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds,” a claim will be considered “adjudicated on the merits” even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”); see also id. at 98 (section 2254(d) deference applies even “[w]here a state court's decision is unaccompanied by any explanation”).
A state court decision is “contrary to” clearly established federal law only “if the state court applies a rule that contradicts the governing law set forth” in Supreme Court precedent or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives” at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Habeas relief is available under the “unreasonable application” clause only “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A federal court may not grant relief “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the state court's application must have been unreasonable - a standard that is met only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Harrington, 562 U.S. at 102; see also id. (“[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). In other words, to demonstrate an “unreasonable” application of Supreme Court law, the habeas petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
The “determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question.” Brisco v. Ercole, 565 F.3d 80, 89 (2d Cir. 2009). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations” inasmuch as the application of a general standard to a specific case “can demand a substantial element of judgment.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); accord Brisco, 565 F.3d at 90 (court applying a “fact-dependent standard . . . to the facts of a specific case is . . . entitled to significant ‘leeway' when [a habeas court] review[s] its decision for reasonableness”) (quoting Yarborough, 541 U.S. at 664).
Only holdings of the Supreme Court are considered for purposes of determining “[c]learly established federal law.” Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Thus, “[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.” Id. at 106-07. Where there is “[n]o holding” from the Supreme Court on the question presented, Carey v. Musladin, 549 U.S. 70, 77 (2006), or where Supreme Court cases “give no clear answer” to the question presented in the petition, Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.”) (punctuation omitted).
As to factual disputes, a state court's “determination of a factual issue” is “presumed to be correct,” and that presumption may be rebutted only “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); accord Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (a federal court sitting in habeas is to “presume the [state court's] factual findings to be sound unless [the petitioner] rebuts the ‘presumption of correctness by clear and convincing evidence'”) (quoting 28 U.S.C. § 2254(e)(1)); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).”). “Even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination.” Wood v. Allen, 558 U.S. 290, 301 (2010) (punctuation omitted). “Nevertheless, the state court's finding might represent an ‘unreasonable determination of the facts' where, for example, reasonable minds could not disagree that the trial court misapprehended or misstated material aspects of the record in making its finding.” Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013) (citing Wiggins v. Smith, 539 U.S. 510, 528 (2003)). An unreasonable determination of the facts might also be found “where the court ignored highly probative and material evidence.” Id. (citing Cockrell, 537 U.S. at 346).
The Supreme Court “repeatedly has held that state courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Moreover, in entertaining a petition for habeas corpus, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, errors that violate only state law are not cognizable in federal habeas corpus proceedings. See id. at 67 (“federal habeas corpus relief does not lie for errors of state law.”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); accord Freeman v. Kadien, 684 F.3d 30, 34-35 (2d Cir. 2012). A limited exception may apply, however, where an error of state law “so infected the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72 (internal quotation marks omitted) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
III. DISCUSSION
A. Ineffective Assistance of Counsel
To demonstrate ineffective assistance of counsel, a petitioner must show that his “counsel's representation fell below an objective standard of reasonableness” and “must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Harrington, 562 U.S. at 104 (punctuation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); accord Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010); Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003); see also Massaro v. United States, 538 U.S. 500, 505 (2003) (“[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.”). In evaluating the first prong - whether counsel's performance fell below an objective standard of reasonableness - “[j]udicial scrutiny . . . must be highly deferential,” and the petitioner must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (punctuation omitted) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence). This analysis requires a court to “affirmatively entertain the range of possible reasons [petitioner]'s counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (punctuation omitted); accord Jackson v. Conway, 763 F.3d 115, 152-53 (2d Cir. 2014).
The second prong requires a showing of prejudice. To satisfy this prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; accord Tavarez, 814 F.3d at 648. With respect to the second prong, the Second Circuit generally “requires some objective evidence other than defendant's assertions to establish prejudice.” Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)); accord Melo v. United States, 825 F.Supp.2d 457, 462 (S.D.N.Y. 2011). Unlike the reasonableness prong, “the prejudice determination may be made with the benefit of hindsight.” Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (punctuation omitted) (quoting Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994)). Thus, a court will consider the evidence against a defendant in deciding if the outcome of the trial would have been different but for his attorney's performance. See, e.g., United States v. Hasan, 586 F.3d 161, 170 (2d Cir. 2009) (“[G]iven the overwhelming evidence against [the defendant] at trial, [he] cannot show prejudice ....”).
“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (punctuation and internal citation omitted). A petitioner “must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance . . . . Rather, he must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 698-99. Our task on habeas review is limited, therefore, to asking whether the state court's “rejection of this claim amounted to an unreasonable application of the Strickland standard.” Aparicio, 269 F.3d at 99 (citing 28 U.S.C. § 2254(d)(1)).
Murphy raises several grounds that he contends demonstrate the Strickland standard was satisfied. He principally argues that counsel's decision to “advance[] a misidentification defense based on his admitted misapprehension of the statutory confession corroboration requirement” denied him effective assistance, Pet. Mem. at 35, but also argues that counsel was ineffective in one of his suppression arguments, id. at 46, and in failing to object to the prosecution's closing statement, id. at 54. We address each potential ground in turn.
1. Counsel's Misidentification Defense
New York law provides that “[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” N.Y. Crim. Proc. Law § 60.50. Murphy argues that defense counsel was ineffective for structuring his case strategy around “counsel's misapprehension that, according to [N.Y. Crim. Proc. Law] § 60.50, the jury could not convict unless the prosecution corroborated each aspect of Mr. Murphy's admissions, including, most critically, that he had an encounter with the complainant.” Pet. Mem. at 37. Murphy maintains that his counsel was fixated on convincing the jury that he had been entirely misidentified, notwithstanding Murphy's repeated insistence that he had been at K.'s apartment. Pet. Mem. at 38-40. Respondents reply that defense counsel's arguments on misidentification were not intended to establish a misidentification defense, but “in service of his larger argument that the entire accounts of the victim and neighbor - but especially the victim - were questionable and therefore unworthy of belief.” R. Opp. at 55.
As to this point, the Appellate Division ruled as follows:
Counsel's defense of a claimed lack of proof of identity, asserted in connection with counsel's reliance on the confession corroboration requirement of CPL 60.50, was objectively unreasonable. However, defendant has not shown that the error deprived him of a fair trial or affected the outcome of the case. No other defense, including one based on defendant's assertion of a nonsexual encounter, had any chance of success. The jury clearly rejected defendant's testimony, which was rife with credibility issues. “Counsel may not be expected to create a defense when it does not exist” (People v DeFreitas, 213 A.D.2d 96, 101 [2d Dept 1995], lv denied 86 N.Y.2d 872 [1995]). When defendant chose to testify, against counsel's advice, and gave testimony at odds with counsel's strategy, counsel's summation remarks reasonably attempted to minimize the damage from various aspects of defendant's testimony. These remarks did not undermine defendant's rights to testify and to control his defense. Defendant's reliance on McCoy v Louisiana (584 U.S. -, 138 S.Ct. 1500 [2018]) is misplaced because counsel did not concede his client's guilt.Murphy, 168 A.D.3d at 633. In line with this ruling, we consider only whether Murphy has met his burden on the “prejudice” prong of Strickland. See Carmichael v. Chappius, 340 F.Supp.3d 340, 346 (S.D.N.Y. 2018) (“A court is not required to conduct a Strickland inquiry in a particular order. If the defendant does not successfully establish either the performance prong or the prejudice prong, the entire claim fails, and the remaining, unaddressed step becomes moot.”), aff'd, 811 Fed.Appx. 41 (2d Cir. 2020).
With regard to prejudice, Murphy has not shown a reasonable probability that, but for his counsel's pursuit of the misidentification theory, the result of the trial would have been different. While Murphy argues that his counsel failed to endorse his account of his interaction with K., it cannot be said that counsel's strategy did anything to lessen the credibility of Murphy's version of the events. Instead, defense counsel advanced several arguments undermining K.'s specific claims of sexual contact, which was entirely in line with Murphy's testimony. For example, defense counsel's summation highlighted that K.'s clothing was not damaged, stretched, or cut, although the prosecution maintained that Murphy had a knife at the time of the attack. (See Tr. 379-80). Defense counsel argued that Murphy's intent in going to K.'s apartment could have been - as Murphy claimed - that he hoped to gain money, rather than sexual gratification. (See Tr. at 383-84); (see also Tr. 389) (“He needed cash money. That's what he was looking for.”). Defense counsel further attempted to cast doubt on K.'s statements, arguing that Murphy would have needed to have “five hands” to engage in the series of acts she claimed (Tr. 385), and that K. presented inconsistent information regarding whether sexual contact occurred and where it occurred (Tr. 386-88).
Thus, even if counsel was ineffective in pursuing a misidentification theory, we cannot say that the pursuit of this theory had any effect on the outcome. Murphy's own story was wildly implausible and thus counsel's strategy did nothing to change the obvious lack of believability of Murphy's account. Any claim that Murphy was prejudiced by the arguments as to misidentification is therefore speculative. In light of the “doubly deferential” nature of AEDPA review, see Cullen, 563 U.S. at 190, it was not objectively unreasonable for the First Department to have concluded that Murphy failed to show prejudice from counsel's chosen strategy.
2. Suppression Hearing Arguments
Murphy argues that defense counsel was ineffective for failing to seek suppression of Murphy's videotaped statement to police, which he asserts contains an improper “preamble” prior to the issuance of a warning under Miranda v. Arizona, 384 U.S. 436 (1966). Pet. Mem. at 46. As to this claim, the First Department concluded as follows:
We also find that defendant was not prejudiced by his counsel's failure to seek suppression of a videotaped statement on the ground that it had been preceded by an improper “preamble” (see People v Dunbar, 24 N.Y.3d 304, 316 [2014]). Such an argument would have been unavailing, because the very limited preamble here did not undermine the Miranda warnings (see id.).Murphy, 168 A.D.3d at 633.
In fact, counsel moved to suppress the videotaped statement based on the interviewing detective's failure to timely inform Murphy of his Miranda rights rather than based on any improper “preamble.” (Hearing Tr. 57-59). That motion was denied. (See Hearing Tr. 65). Murphy contends that counsel should have relied on People v. Dunbar, 104 A.D.3d 198 (2d Dep't 2013), affd, 24 N.Y.3d 304 (2014), to argue that the preamble to the Miranda warning was improper. Pet. Mem. at 51-52. He maintains that the preamble to his Miranda warnings mirrored the one held to be reversible error in Dunbar, and that his counsel was ineffective for failing to argue that Dunbar prevented the admission of the videotaped statement. See id. at 4648.
We disagree. The defendant in Dunbar was arrested and processed through a program by the Queens County District Attorney's Office “under which arrested individuals [were] systematically interviewed just prior to arraignment,” and were read the following script:
If you have an alibi, give me as much information as you can, including the names of any people you were with. If your version of what happened is different from what we've been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to tell us now so we can look into it. Even if you have already spoken to someone else you do not have to talk to us. This will be your only opportunity to speak with us before you go to court on these charges.104 A.D.3d at 201-02. The Second Department reversed the defendant's convictions, holding that the Miranda warnings combined with the scripted preamble conveyed a “muddled and ambiguous” message. Id. at 207. The court reasoned that the preamble improperly urged suspects that this was their only opportunity to advance their version of events, thereby ensuring that the Miranda warnings “could not function effectively as Miranda required.” Id. at 209 (punctuation omitted).
Given the significant differences between what occurred in Murphy's case and what occurred in Dunbar, it was not objectively unreasonable for counsel to have not relied specifically on Dunbar in seeking suppression. First, the defendant in Dunbar was pressured to believe that if he did not offer an alibi or his account of what transpired, he would not have that opportunity again before being arraigned. Id. at 202-03. In Murphy's case, Murphy simply asked - in the middle of being read his Miranda rights - whether, if he asked for an attorney, that would “end our conversation for the day today?” See Pet. Mem. at 49. After answering affirmatively, the prosecutor asked whether Murphy wished to continue speaking. See Id. Murphy opted to continue the conversation and was read the remainder of the Miranda warnings. See id. at 49-50. In contrast to the preamble in Dunbar, which implied that requesting an attorney would forfeit an arrestee's opportunity to tell the prosecution his side of the story, see 104 A.D.3d at 208, the prosecutor's response here simply informed Murphy that his request for an attorney would delay that opportunity. This straightforward and likely accurate response made clear that Murphy retained the choice of whether to continue the conversation. Second, the First Department specifically cited Dunbar in ruling that Murphy's proposed argument “would have been unavailing, because the very limited preamble here did not undermine the Miranda warnings.” 168 A.D.3d at 633. Murphy's counsel cannot reasonably be found ineffective for failing to advance an argument that was subsequently rejected on appeal. See United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) (“Failure to make a meritless argument does not amount to ineffective assistance.”).
Further, even leaving aside the question of whether it was objectively reasonable for counsel to fail to invoke Dunbar, Murphy has not shown that he was prejudiced by the admission of the videotaped statements. The video contained the same version of events Murphy advanced in multiple written statements to police and, as petitioner himself admits, was substantially the same as the version he offered in his trial testimony. See Pet. Mem. at 56 (“Mr. Murphy's testimony was materially consistent with his oral and written statements, particularly with regard to how he found the complainant's wallet, went to her apartment seeking a monetary reward, and put his hand over her mouth to stop her screaming.”). Given the video's consistency with other evidence in the record, Murphy cannot show a “reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
3. Failure to Object to Closing
During the summation, the prosecutor argued that Murphy's testimony regarding his interaction with K. was not credible, whereas K.'s statements were. The prosecutor argued that Murphy's testimony “defies logic [and] your own common sense” (Tr. 401), and claimed that Murphy had “done everything in his power to deceive and deflect responsibility” (Tr. 411). The prosecutor also questioned the veracity of Murphy's testimony that K. had “face planted” onto the street, noting that her facial injuries were limited. (Tr. 407-408). The prosecutor argued that K. “didn't stand to gain anything by falsely accusing a complete stranger of trying to rape her.” (Tr. 397). The prosecutor also argued that K.'s behavior after her interaction with Murphy supported the credibility of her statements. That K. endured extensive questioning by police and intrusive medical examinations, as well as the fact that she left the United States shortly after the events at issue, was, in the prosecutor's words, “how you know what [she] reported was the truth.” (Tr. 397-99).
Murphy argues that the prosecutor's summation “exceeded the bounds of proper advocacy,” and that his counsel's failure to object to the summation “allow[ed] this conduct to poison the jury's deliberations.” Pet. Mem. at 54. Murphy alleges that the prosecutor's summation “disparaged” him and his attorney “while vouching for, and evoking sympathy for,” K. Id. at 55. Specifically, Murphy argues that the prosecutor's summation accused the defense of improper motives, by making “inflammatory and derogatory suggestions that the defendant lied or tailored his testimony,” and by vouching for the credibility of the absent witness. Id. at 56. Murphy maintains that counsel's failure to object deprived him of the right to meaningful representation. Id. at 61.
When a federal habeas court reviews comments made by a prosecutor during trial, “[t]he relevant question is whether the prosecutor's comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The scope of review for allegations of prosecutorial misconduct in the habeas context is “quite limited.” Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998). Relief is available only where the court “find[s] that the prosecutor's comments constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights.” Id. (citing Donnelly, 416 U.S. at 647-48). In other words, “the law is settled that federal habeas relief is not available on the basis of improper prosecutorial statements at trial unless the errors, in context of the summation as a whole, were so fundamentally unfair as to deny petitioner a fair trial.” Tejada v. Senkowski, 1993 WL 213036, at *3 (S.D.N.Y. June 16, 1993) (punctuation omitted), affd mem., 23 F.3d 397 (2d Cir. 1994).
Because the consideration of a prosecutor's summation requires an inquiry only into whether the defendant was denied a fair trial, it is irrelevant whether the prosecution's comments were “undesirable or even universally condemned.” Darden, 477 U.S. at 181 (punctuation omitted). In evaluating whether comments during summation deprived the defendant of a fair trial, it is important “to place the[] remarks in context.” Id. at 179; accord Greer v. Miller, 483 U.S. 756, 766 (1987); United States v. Young, 470 U.S. 1, 11-12 (1985); Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991). Thus, prosecutors are “permitted to rebut arguments raised during a defendant's summation, even to the extent of permitting the prosecutor to inject his view of the facts to counter the defense counsel's view of the facts.” Festus v. Noeth, 2020 WL 7042666, at *24 (E.D.N.Y. Nov. 30, 2020) (punctuation omitted).
As to the obligations of defense counsel, “[d]ecisions such as when to object and on what grounds is a matter of trial strategy and tactics, and thus are virtually unchallengeable absent exceptional grounds for doing so.” United States v. Cohen, 427 F.3d 164, 170 (2d Cir. 2005) (punctuation and internal quotation omitted); see also United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998) (noting that “appellate courts are ill-suited to second-guess” strategic decisions by trial counsel “unless there is no strategic or tactical justification for the course taken”).
Here, the prosecutor's comments in summation were well within the bounds of fair comment on the evidence, and therefore Murphy's counsel's failure to object did not render his representation ineffective. See Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986) (failure to object to prosecution's proper summation did not constitute ineffective assistance of counsel). Murphy stresses that credibility was a key issue in his trial and contends that this increased the prejudicial impact from the prosecutor casting doubt on his testimony. Pet. Mem. at 55-56. However, it is generally not improper for a prosecutor to use “the words ‘liar' and ‘lie' to characterize disputed testimony when the witness's credibility is clearly in issue.” United States v. Coriaty, 300 F.3d 244, 255-56 (2d Cir. 2002) (citation omitted); see also Bridges v. Lee, 2019 WL 11816536, at *11 (E.D.N.Y. Aug. 26, 2019) (counsel not ineffective for failing to object to prosecutor's summation that suggested defendant had fabricated his version of the events), adopted by 2021 WL 688292 (E.D.N.Y. Feb. 23, 2021).
Murphy alleges that the prosecutor, in summation, claimed that Murphy “‘never originally mentioned' that the complainant fell in the street, and implied that this detail was a fabricated post hoc explanation for [K.'s] injuries.” Pet. Mem. at 57. Had the prosecutor argued this before the jury, given that Murphy's accounts consistently included K.'s fall, Murphy's argument might have some merit. See United States v. Universita, 298 F.2d 365, 367 (2d Cir. 1962) (“The prosecution has a special duty not to mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth.”). However, Murphy misinterprets the prosecution's summation. The prosecution was highlighting a distinction between “falling” generally and “face planting” specifically, arguing that Murphy had switched to the latter characterization only after learning that K. had suffered a cut on her lip. (See Tr. 407-08; see also Tr. 352 (prosecution, during cross-examination of Murphy, confirming that his in-court testimony described her fall as “face plant[ing]”)). Thus, the prosecution was commenting on evidence in the record, not making “affirmative statements contrary to what it knows to be the truth.” Universita, 298 F.2d at 367.
In light of the foregoing, Murphy's argument regarding his counsel's failure to object during summation fails to overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
B. Right to Control His Defense and Testify
Murphy argues that he was deprived of “the right to testify in his own defense” and the right to “make his own choices about the proper way to protect his own liberty” when counsel “urged the jury in summation to disregard Mr. Murphy's testimony.” Pet. Mem. at 61-62 (citing Massachusetts v. Weaver, 137 S.Ct. 1899, 1908 (2017), McCoy v. Louisiana,138 S.Ct. 1500, 1508 (2018), and Rock v. Arkansas, 483 U.S. 44, 52 (1987)). Specifically, Murphy faults his counsel's comments in summation that he would not “speculate or guess as to why” Murphy made his videotaped statement to police. (Tr. 375).
On this point, the Appellate Division concluded as follows:
When defendant chose to testify, against counsel's advice, and gave testimony at odds with counsel's strategy, counsel's summation remarks reasonably attempted to minimize the damage from various aspects of defendant's testimony. These remarks did not undermine defendant's rights to testify and to control his defense. Defendant's reliance on McCoy v Louisiana (584 U.S. -, 138 S.Ct. 1500 [2018]) is misplaced because counsel did not concede his client's guilt.Murphy, 168 A.D.3d at 633.
Related to the right to effective assistance of counsel is the right to decide certain aspects of counsel's representation. See McCoy, 138 S.Ct. at 1508 (noting that the decisions “whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal” are reserved to the client-defendant). In McCoy, the United States Supreme Court overturned a defendant's conviction where his counsel had admitted his guilt to the jury notwithstanding the defendant's desire to maintain his innocence. Id. at 1505-07, 1512. However, McCoy does not stand for the proposition that all decisions regarding representation are vested in the client. “Once a defendant decides on an objective - e.g., acquittal - ‘[t]rial management is the lawyer's province' and counsel must decide, inter alia, ‘what arguments to pursue.'” United States v. Rosemond, 958 F.3d 111, 122 (2d Cir. 2020) (quoting McCoy, 138 S.Ct. at 1508), cert. denied, 141 S.Ct. 1057 (2021). Trial management decisions, such as “when a lawyer makes strategic concessions in pursuit of an acquittal,” do not give rise to a McCoy violation. Id. at 122-23. In sum, “[w]hile the decision to contest guilt is squarely within the client's control, the question of how to present an argument of innocence is not.” Yannai v. United States, 346 F.Supp.3d 336, 344 (E.D.N.Y. 2018) (internal citation omitted).
As to Murphy's arguments, we begin by noting that some of the portions of defense counsel's summation that Murphy criticizes do not relate to Murphy's in-court testimony, and therefore could not infringe Murphy's right to testify in his own defense. For example, defense counsel stated that he could not “speculate or guess” as to why Murphy made certain admissions in a videotaped statement to police. (Tr. 375). Such a neutral comment unrelated to Murphy's trial testimony, however, is insufficient to constitute a McCoy violation or infringement of Murphy's right to testify in his own defense. Murphy faults his trial counsel for stating “we don't have the full version of the events,” rather than wholly adopting Murphy's account of what happened, see Pet. Mem. at 64 (quoting Tr. 387), but this was a reasonable attempt to highlight uncertainty and contradictions in the prosecution's evidence. Furthermore, rather than discounting Murphy's testimony, counsel noted the consistency between his videotaped statement to police and his trial testimony. (See Tr. 388-89). Counsel did not deviate from or undermine his client's wish to maintain his innocence; rather, counsel employed a trial strategy designed to persuade the jury of that innocence. Accordingly, Murphy has not shown a violation of his rights to control his defense and testify on his own behalf. “If the court were to accept [Murphy's] interpretation of McCoy, the court would effectively expand the scope of McCoy beyond a defendant's autonomy over the objective of his defense, to the attorney's authority over the strategic decisions to reach the client's objective.” Messina v. United States, 2020 WL 4194533, at *24 (E.D.N.Y. July 21, 2020).
C. Statements of K. Admitted as Hearsay
Murphy argues that the trial court erred in admitting K.'s statements through the testimony of Sergeant Burgos and Christine Moronta. Specifically, Murphy argues that the testimony was not within the hearsay exceptions and that the admission of the statements violated his rights under the Confrontation Clause, as well as his rights to due process and a fair trial. See Pet. Mem. at 66-67, 77-78. As to this point, the Appellate Division held:
[W]e find that defendant did not preserve any of his claims, including those grounded in the state and federal constitutions, regarding evidence of the victim's statements to police and medical personnel. Defendant's general argument that the victim's failure to testify violated his right of confrontation was insufficient to preserve the specific claims he makes on appeal, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. All of this evidence qualified under the state-law excited utterance and medical diagnosis/treatment exceptions to the hearsay rule. Although the victim's statement to a police sergeant was testimonial under the Confrontation Clause, defendant expressly waived that claim. The victim's statements to a nurse were not testimonial, because the nurse elicited the statements primarily to treat the victim, and her role in gathering evidence for the police by way of a rape kit was secondary (see People v Shaw, 80 A.D.3d 465 [1st Dept 2011], lv denied 16 N.Y.3d 863 [2011]). Furthermore, although evidence admitted under the two hearsay exceptions at issue did not require a showing of either reliability or the unavailability of the declarant, the People made both showings. Finally, we find that defendant received a sufficient opportunity to elicit testimony that the victim had given varying versions of the attack and defendant's description, and that there was no violation of defendant's right to present a defense.Murphy, 168 A.D.3d at 634.
The Sixth Amendment's Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 50-55 (2004), the United States Supreme Court held that the Confrontation Clause's protection extends only to testimonial statements by a nontestifying witness. The determination of whether a statement is testimonial is judged by the primary purpose test, which looks to the totality of the circumstances and asks whether an out of court statement's purpose was to create a record for trial. See Ohio v. Clark, 576 U.S. 237, 244 (2015). The admission of statements without such a purpose “is the concern of state and federal rules of evidence, not the Confrontation Clause.” Michigan v. Bryant, 562 U.S. 344, 359 (2011). For example, if “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” Id. at 358. Similarly, “statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules,” not the Confrontation Clause. Giles v. California, 554 U.S. 353, 376 (2008); see also Bryant, 562 U.S. at 362 n.9 (noting that medical records are “by their nature, made for a purpose other than use in a prosecution”).
Generally, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67-68. A state trial court's evidentiary determinations do not implicate federal constitutional questions unless an adverse ruling so infected the trial as to “deprive[] [the defendant] of a fundamentally fair trial.” Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (punctuation omitted); accord Dowling v. United States, 493 U.S. 342, 352 (1990); Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir. 1983). “[T]he Supreme Court has ‘defined . . . very narrowly'” the guarantee of “fundamental fairness.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (quoting Dowling, 493 U.S. at 352). To show that an evidentiary ruling violated due process, a court must first determine that the evidentiary ruling was erroneous under state law, because “the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.” DeJesus v. Superintendent of Attica Corr. Facility, 2017 WL 6398338, at *27 (S.D.N.Y. Dec. 13, 2017); see also Zarvela, 364 F.3d at 418 (first assessing whether state court erred in excluding testimony under New York law). If the ruling was erroneous, then a petitioner must show that the error violated due process. See Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). With erroneously admitted testimony, a court asks “whether ‘the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'” Smith v. Greiner, 117 Fed.Appx. 779, 781 (2d Cir. 2004) (summary order) (quoting Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985)); accord Vega v. Portuondo, 120 Fed.Appx. 380, 382 (2d Cir. 2005) (summary order). Even when a district court answers this second question in the affirmative, under 28 U.S.C. § 2254(d) it may only grant habeas relief if it finds that the state court decision was “objectively unreasonable.” Jones v. Stinson, 229 F.3d 112, 119, 120-21 (2d Cir. 2000).
1. Testimony of Nurse Christine Moronta
Murphy argues that K.'s statements offered by Christine Moronta were testimonial and should have been excluded. Moronta, a registered nurse and Sexual Assault Forensic Examiner (“SAFE”), testified as to statements K. made during her sexual assault examination. (See Tr. at 178-86). Murphy contends that these statements were testimonial, “as the central purpose of the SAFE exam is to collect and prepare evidence in contemplation of a criminal case,” and Moronta's assessment of K. took place after she had already received medical attention from four other medical professionals. Pet. Mem. at 71.
In Pham v. Kirkpatrick, 711 Fed.Appx. 67 (2d Cir. 2018), the Second Circuit upheld the admission of a rape victim's statements to a physician trained in sexual assault forensic examination, as “the doctor interacted with the victim for the ‘primary purpose' of providing medical treatment,” and “[t]he doctor testified that it was necessary for her to learn the details of the assault so that she could conduct an appropriate physical examination, evaluate the victim's injuries, and formulate a safe discharge plan.” Id. at 69. As in Pham, the statements K. made to Moronta were primarily for the purpose of obtaining medical treatment, not for obtaining an out-of-court equivalent of testimony. While Moronta eventually gathered evidence for submission to police (Tr. 188-91), K.'s statements that Moronta relayed were made in the course of an initial medical examination, (Tr. 182-86). Those answers directly informed a specific medical treatment decision: whether to administer prophylactic treatments for sexually transmitted infections. (Tr. 186-88). Accordingly, the state courts' conclusion that K.'s statements were not testimonial was not contrary to clearly established federal law.
K.'s statements to Moronta were also within the exception to the hearsay rule under New York law for statements appearing in hospital records made for purposes of treatment. See People v. Wright, 81 A.D.3d 1161, 1164 (3d Dep't 2011) (“Hospital records fall within the business records exception to the hearsay rule as long as the information relates to diagnosis, prognosis or treatment”). Each of K.'s statements to Moronta were relevant to a medical treatment decision and therefore within the exception. Because the admission of these statements was not erroneous, it could work no violation of Murphy's right to due process. See Rembert v. Annucci, 2020 WL 7043616, at *12 (S.D.N.Y. Dec. 1, 2020) (determination that state courts did not err in applying state law resolved related constitutional claims).
2. Testimony of Sergeant Burgos
Murphy argues that K.'s statements offered by Sergeant Burgos were testimonial and should have been excluded. Pet. Mem. at 68. Murphy notes that Sergeant Burgos interviewed K. after Officer Martinez had initially assessed her and confirmed that she had been assaulted and that the assailant had left the scene. Id. at 69. This, Murphy argues, shows that Sergeant Burgos's questioning “was not directed at ending a threatening situation to the complainant, the police, or the public, but rather at investigating and securing an arrest.” Id. (citation omitted).
Murphy does not allege that his counsel was ineffective for failing to object to Sergeant Burgos's testimony as to K.'s statements. Rather, the only issue he raises is whether the statements were testimonial. As to this point, as noted, the First Department concluded that Murphy failed to preserve the claim. See Murphy, 168 A.D.3d at 634. Indeed, the record does not reflect that Murphy's trial counsel objected to Sergeant Burgos's testimony on Confrontation Clause grounds, aside from the general insistence that K.'s statements should not be admissible from any source. (See Hearing Tr. 37-42). In fact, Murphy's counsel expressed his view that K.'s statements to Sergeant Burgos were within the excited utterance exception to hearsay, stating that “this testimony is, for lack of a better word, non-testimonial as far as Crawford goes in the sense that he's taking information not necessarily for [an] eventual court case, taking information to find out what happened.” (Tr. 276). Counsel elicited several of K.'s statements from Sergeant Burgos during cross-examination for the purpose of identifying inconsistencies in those statements. (See Tr. 277-79).
Under New York law, a trial error is preserved for appellate review only when “a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.” N.Y. Crim. Proc. Law § 470.05(2). New York's contemporaneous objection requirement is “a firmly established independent and adequate state procedural bar and the repercussions for failure to comply with this requirement were necessarily enforced in Petitioner's case.” Gomez v. Brown, 655 F.Supp.2d 332, 344 (S.D.N.Y. 2009). Here, there was no such objection. See Garvey v. Duncan, 485 F.3d 709, 715 (2d Cir. 2007) (“New York courts consistently interpret § 470.05(2) to require that a defendant specify the grounds of alleged error in sufficient detail so that the trial court may have a fair opportunity to rectify any error.”).
Murphy could overcome this waiver upon a showing that “‘some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court,” McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S., 478, 488 (1986)), or that there has been a “fundamental miscarriage of justice,” such as “the conviction of one innocent of the crime,” id. at 494. However, Murphy has identified no reason for failing to make a timely objection in state court, nor has he made a “colorable showing of factual innocence.” Id. at 495. Thus, Murphy's petition as to the testimony of Sergeant Burgos should be denied.
D. Missing Witness Charge
Murphy argues that the failure of the trial court to give a “missing witness” charge was error, because the complainant was not in fact unavailable, and that this failure deprived him of due process because “the evidence of guilt was not overwhelming,” and such an instruction “would have further illuminated the fundamental weaknesses in the prosecution's evidence.” Pet. Mem. at 90. Thus, Murphy argues that his due process rights were violated by this failure and his convictions should be reversed. Id.
The standard for establishing a due process violation in the giving of an allegedly improper jury charge is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Waddington v. Sarausad, 555 U.S. 179, 191 (2009); accord Estelle, 502 U.S. at 72. To obtain relief from an erroneous jury instruction, “it must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.” Cupp, 414 U.S. at 146; accord Estelle, 502 U.S. at 72; Middleton v. McNeil, 541 U.S. 433, 437 (2004) (“[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.”). Where a claim, like Murphy's, is based on the failure to provide a requested instruction, the error claim is subject to an “especially heavy” burden, because “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
The Second Circuit has held that the three following questions must be answered in the affirmative prior to granting habeas relief for a failure to charge:
First, was the . . . charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp[?] Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254?Davis v. Strack, 270 F.3d 111, 124 (2d Cir. 2001); accord Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005).
Under New York law, trial courts are required, in certain circumstances, to instruct the jury that an unfavorable inference may be drawn from a party's failure to produce a witness. Such a “missing witness” instruction is appropriate where it is shown “(1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party has failed to call the witness to testify.” People v. Smith, 33 N.Y.3d 454, 458-59 (2019) (punctuation omitted). However, the instruction should not be issued if the party that has failed to call the witness is able to show “that the witness is not ‘available,' or that the witness is not under the party's ‘control' such that he would not be expected to testify in his or her favor.” People v. Gonzalez, 68 N.Y.2d 424, 428 (1986); see also United States v. Caccia, 122 F.3d 136, 139 (2d Cir. 1997) (“the inference is not available to be drawn against a party who . . . lacks meaningful or pragmatic access to the witness.”). Case law in New York has held that a witness who has departed the country is unavailable. See, e.g., People v. Marshall, 258 A.D.2d 477, 477 (2d Dep't 1999); People v. Benjamin, 210 A.D.2d 418 (2d Dep't 1994).
It is clear that K. was not available to testify at trial. Shortly after her encounter with Murphy, K. returned to Japan, where she could not be subpoenaed to testify. See Correspondence Between Alyssa Gunther and K., annexed as Ex. A to P. Reply, at 2. The assistant district attorney handling Murphy's case contacted K. in October 2014, offering to pay for her flights and lodging if she would return to the United States to testify against Murphy, but K. indicated that she was unwilling to testify and that she would “not change [her] mind.” Id. at 1. K. explained that her decision was driven by concern for her mental health, as she believed reliving the events underlying this prosecution would cause her to need further therapy and treatment. See id. When contacted again in December 2014 and February 2015, K. again declined to testify. Id. at 3-5. Because K. was unwilling to testify and unavailable to the prosecution, New York law did not require the court to issue a missing witness charge.
Murphy argues that the prosecution's efforts to obtain K.'s testimony “fell far below the expectations of diligence required to bring a witness to trial.” Pet. Mem. at 89. However, the prosecution made repeated efforts, over several months, and K. was adamant in her refusal to testify and unwillingness to return to the United States. We are aware of no authority for the proposition that such a witness is “available” for purposes of assessing whether to issue a missing witness charge. Additionally, since K.'s unwillingness to testify was largely driven by her desire not to relive the attack and concern for her mental health, rather than concerns about the practicality of traveling to the United States for trial, Murphy's suggestion that K. could have testified by video, see id., is unpersuasive.
Furthermore, even if the trial court's failure to give a missing witness instruction had been erroneous under New York law, this would not compel the conclusion that such error is of constitutional magnitude. A state court's “[f]ailure to deliver a missing witness charge does not constitute a federal constitutional error and cannot be the basis for federal habeas corpus relief unless such a failure so infects the entire trial that the resulting conviction violated due process.” Morillo v. Crinder, 1997 WL 724656, at *5 (S.D.N.Y. Nov. 18, 1997). There is no reason to believe that the failure to give the missing witness charge had any impact on Murphy's trial. To begin with, the missing witness charge permits the jury to draw a negative inference; it does not require them to do so. See DeVito v. Feliciano, 22 N.Y.3d 159, 165 (2013). Moreover, Murphy's counsel repeatedly reminded the jury that K. was absent and unable to clarify her statements to police. See Tr. 387, 389; see also Bisnauth v. Morton, 2021 WL 3492746, at *14-15 (E.D.N.Y. Aug. 9, 2021) (failure to issue a missing witness charge is generally not grounds for habeas relief) (collecting cases); Davis v. Smith, 2009 WL 236506, at *7 (N.D.N.Y. Feb. 2, 2009) (no due process violation due to failure to issue missing witness charge where “defense counsel was permitted to comment on the absence of any eye-witness testimony during summation, and the jury was instructed to limit itself to the evidence actually presented.”). Accordingly, Murphy's claim relating to the missing witness charge does not provide a basis for habeas relief.
E. Sufficiency of the Evidence
Murphy argues that his conviction was “legally insufficient and against the weight of the evidence where it was premised entirely on the uncorroborated and unreliable accusations of an absent complainant.” Pet. Mem. at 91. Because claims regarding the “weight” of the evidence are not cognizable on federal habeas review on the grounds that they are purely state law claims that do not present a federal constitutional issue, see, e.g., Taylor v. Poole, 538 F.Supp.2d 612, 618 (S.D.N.Y. 2008), we construe this claim as a federal one challenging the sufficiency of the evidence.
When a court reviews a legal sufficiency claim, it must evaluate the trial evidence “in the light most favorable to the prosecution” and uphold the conviction so long as “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) (emphasis in original). Legal sufficiency “claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012); accord Parker v. Matthews, 567 U.S. 37, 43 (2012).
First, on direct appeal, “it is the responsibility of the jury - not the court - to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.”Coleman, 566 U.S. at 651 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). “[S]econd, on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. (quoting Cavazos, 565 U.S. at 2) (punctuation omitted). Thus, a petition will be denied if it is “possible” that a “fairminded jurist” could agree with the state court's decision. Richter, 562 U.S. at 102.
“[F]ederal courts must look to state law for ‘the substantive elements of the criminal offense'” when evaluating legal sufficiency claims. Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16). However, “the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law.” Id. And federal law “leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.'” Id. (quoting Jackson, 443 U.S. at 319).
Murphy's only support for his assertion that the evidence against him was insufficient is his argument that the hearsay statements made by the complainant were unreliable and inconsistent, in effect arguing that her out-of-court testimony was not credible. Pet. Mem. at 9193. However, “assessments of the weight of the evidence or the credibility of witnesses are for the jury” and thus a habeas court must “defer to the jury's assessments of both of these issues.” Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); accord DeChirico v. Walker, 558 F.Supp.2d 355, 369 (E.D.N.Y. 2008) (“When evaluating the sufficiency of the evidence, this Court must defer to the jury's assessment of credibility.”); Sanford v. Burge, 334 F.Supp.2d 289, 303-04 (E.D.N.Y. 2004) (“On habeas review, courts are not free to reassess the fact-specific credibility judgments by juries or to weigh conflicting testimony.”) (punctuation omitted); Rosa v. Herbert, 277 F.Supp.2d 342, 347 (S.D.N.Y. 2003) (“the court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses”). The jury could have rationally concluded that the complainant's multiple statements to different medical personnel, even if inconsistent in certain respects, were more credible than Murphy's implausible account. Accordingly, Murphy's challenge must fail.
IV. CONCLUSION
For the foregoing reasons, the petition for habeas corpus should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Engelmayer. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).