Opinion
01 CV 5840 (SJ)
May 12, 2003
Pamela Peters Andrew C. Fine, for Plaintiff
Anne Elizabeth Crick Karen Fisher McGee, Assistant District for Respondent
MEMORANDUM AND ORDER
Petitioner Lynel Parsons ("Petitioner") brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. This Court referred the petition to Magistrate Judge Cheryl L. Pollak for a Report and Recommendation ("Report"). On February 3, 2003, Magistrate Pollak issued her Report, recommending that Petitioner's application be denied in its entirety. Petitioner filed timely objection to the Report on February 19, 2003. Petitioner objects generally to Magistrate Judge Pollak's Report, and raises a specific objection to her recommendation that his claim that the trial court erred by refusing to charge the jury on the defense of justification be denied. Petitioner has not, however, offered any challenges to the Report which would persuade this Court to reject the Magistrate's recommendations. Accordingly, the Report is adopted in its entirety.
I. Standard of review for Report and Recommendation
A district court judge may designate a magistrate judge to hear and determine any pre-trail matter pending before the district court. See 28 U.S.C § 636(b)(1). A district judge may also designate that magistrate to conduct hearings and submit to the district court proposed findings of fact and recommendations as to the disposition of the motion. Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See Id. The district court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985).
II. Magistrate's Findings and Petitioner's Objections
Petitioner objects generally to the Report and requests a de novo review of the record. However, Petitioner does not offer any specific objections to the Magistrate's factual findings, or to her findings as to the merits of his claims regarding the sufficiency of the evidence on the depraved indifference murder charge or the length of his sentence. Having reviewed the record and Magistrate Judge Pollak's findings regarding these claims, the Court adopts her recommendations and denies both of those claims.
Petitioner does specifically object to Magistrate Judge Pollak's finding that the trial court did not err in refusing to charge the jury on the defense of justification. As the Magistrate explained in her Report, "[w]here there has been an alleged error in a 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.'" (Report at 30, quoting Cupp v. Naughton, 414 U.S. 141, 146 (1973).) Magistrate Judge Pollak found it unnecessary to consider whether the ruling violated due process, as she held that the trial judge's decision not to include the justification charge comported with state law.
Magistrate Judge Pollak identified the New York law regarding the defense of justification (Report at 31), reviewed and summarized the evidence presented at trial (Report at 11-30), analyzed the trial judge's application of the law to this evidence (Report at 32-36), and found that the trial judge correctly applied the law to the facts of this case (Id.). Petitioner contends that the Magistrate used the wrong analysis to determine whether he was entitled to the justification charge under New York law. (Objections at 4.) He argues that the trial court's ruling violated state law because that court failed to assess the record in the light most favorable to the defense. Petitioner asserts that "[t]hat standard by definition presumes that a jury may choose to credit a defendant's account of the events." (Objection at 6, citing People v. Huntley, 452 N.Y.S.2d 952, 87 A.D.2d 488, 494 (N.Y.App.Div., 4th Dep't 1982) ("[I]f the jury believed defendant's version of the event, it could have found that he was justified in using force . . . and the court's failure to provide that charge was reversible error."), aff'd 59 N.Y.2d 868 (N.Y. 1983).) However, this does not require accepting the defendant's testimony at face value in disregard of other evidence, credibility determinations, or common sense. "In order to be entitled to a justification instruction, a defendant must show both that he subjectively believed that deadly force was necessary under the circumstances and that a reasonable person in his situation would have held this belief." Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (citing People v. Goetz, 68 N.Y.2d 96, 115 (1986). Further, even where a defendant reasonably believed that the use of deadly force against him was imminent, he must also show that he had met his duty to retreat in order to avoid using deadly force, or to show that retreat was impossible. N.Y. Penal Law § 35.15(2)(a) (McKinney's 1987).
Accordingly, the trial court must determine whether there was a reasonable view of the evidence from which a jury could conclude that the defendant's acts were justified. Blazic, 900 F.2d at 540. In the case at hand, Magistrate Judge Pollak correctly noted that "The question here is not whether petitioner believed that Dobbs was about to use deadly physical force; the question is whether the evidence, when viewed objectively, could support a finding that the petitioner's perception regarding the imminent use of deadly force was reasonable." (Report at 33-34.) The Magistrate considered the evidence in its totality, including the testimony of other witnesses and the extent to which they did or did not corroborate Petitioner's testimony. She also noted the contradiction between Petitioner's testimony at trial that he saw the victim reach behind his back and thus feared that the victim was going for a gun, and his prior statements to police officers and other witnesses in which he did not mention this. (Report at 35.) She found that Petitioner's testimony, standing alone, would not have been sufficient for a reasonable trier of fact to believe that the victim was about to use deadly force from which the Defendant would have been unable to retreat. (Report at 34-35.) Thus, the Magistrate found that the trial court correctly determined that the evidence, even in the light most favorable to petitioner, did not support a justification defense charge. (Report at 36.)
Having reviewed the trial transcript, this Court finds that Petitioner did testify to his perception of fear, as evidenced by his testimony that he backed up six or seven steps (Transcript ("Tr.) at 665), that he twice pleaded with the victim to "just leave it alone, stay where he was at" (Tr. at 665-666), that the victim emerged from behind a light pole and took steps toward him (Tr. at 666), that he "was already scared" and wanted to leave the scene (Tr. at 666-67), and that he saw the victim place his right hand toward his back (Tr. at 667). At that point, Petitioner testified, "I was wondering what was he doing with his hand back there. I started getting real scared, I thought he was going to do something real bad to me . . . I felt he was going to try to take my life. I wasn't really sure." (Tr. at 667.) Petitioner further testified that after asking the victim for a third time to leave it alone, the victim's hand came out from behind his back: "His hand just was coming upwards towards me all in one motion he started to look like he was lunging at me. At that point I just panicked and shot the gun at him." (Tr. at 668.) Petitioner testified that he did not intend to kill or injure the victim. "My intention was just to scare him, give myself enough time to leave the scene of the crime." (Tr. at 668.)
However, this testimony is belied by other portions of Petitioner's testimony. He testified that one of the girls said "Sha, why did you do that" and that his friend said "why didn't you shoot the other guy." (Tr. at 684.) He acknowledged that he could have retreated further. (Tr. at 692.) When questioned on direct testimony whether he had any idea whether or not the victim had a gun on him, Petitioner testified that he did not know. (Tr. at 67-68.) Yet when questioned on cross-examination, he admitted that he never saw the victim holding a gun (Tr. at 692), nor felt a gun on (he victim, although the two men wrestled closely and the victim was able to feel the gun in Petitioner's waistband. (Tr. at 693.)
This Court concurs with Magistrate Judge Pollak's findings. Having independently reviewed the trial record, the Court finds that even when viewed in the light most favorable to Petitioner, the trial court correctly found that no reasonable jury relying solely on Petitioner's testimony and credibility would have believed that he feared for his life and had no other means of escape. "A court is not required to adopt an artificial or irrational view of the evidence in deciding whether a justification charge is warranted." Blazic, 900 F.2d at 540. The trial court specifically noted that there was no weapon in the vicinity of the deceased that would justify the use of deadly force. (Tr. at 720.) The judge further considered the duty to retreat and noted that even from the defendant's view, there was "nothing stopping him from leaving the scene with complete safety to himself." (Id.) Accordingly, this Court finds that the trial court did not err in refusing to give a justification charge to the jury. Thus, Petitioner's claim that he was denied a fair trial is without merit.
CONCLUSION
Magistrate Judge Pollak thoroughly reviewed and addressed each of Petitioner's claims and found each to be without merit. The Court has reviewed her recommendations, Petitioner's objections, and the relevant portions of the record. The Court concurs in the Magistrate's analysis of the facts and application of the relevant legal standards and hereby adopts the Report and Recommendation in its entirety. The Petition for a writ of habeas corpus is denied. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith.