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denying ineffective assistance of counsel claim where trial counsel stated defendant should receive maximum sentence if he committed the murders and presented no mitigating evidence
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No. 01 Civ. 5522 (AKH)
September 24, 2002
OPINION AND ORDER DENYING HABEAS CORPUS RELIEF
Carlos Perez, proceeding pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judgment was entered against petitioner on May 12, 1997 by the New York State Supreme Court, Bronx County, after a jury verdict, convicting petitioner of four counts of Murder in the Second Degree, N.Y. Penal Law §§ 125.25[1] [3] for two separate murders. Petitioner was sentenced to two concurrent terms of twenty-five years to life for the first murder, and, consecutively, to two concurrent terms of twenty-five years to life for the second murder, for a total sentence of fifty years to life.
Petitioner raises the following grounds of constitutional error: (1) the verdict was against the weight of the evidence; (2) the trial court erred in admitting grand jury testimony of one of the people's witnesses as impeachment evidence; (3) the trial court erroneously failed to instruct the jury that a threat by petitioner should be evidence of consciousness of guilt rather than as evidence-in-chief; and (4) petitioner was denied effective assistance of counsel at sentencing. For the reasons stated, I deny the habeas corpus petition on all four grounds.
I. Background
1. Facts Underlying the Conviction
Petitioner's conviction arose out of incidents resulting in the deaths of Denise Raymond, a Federal Express executive, and Baithe Diop, a cab driver. According to the evidence, on January 17, 1995, petitioner and co-defendants Michael Cosme, Devon Ayers and Israel Vasquez forced their way into Ms. Raymond's apartment. After tying her up, blindfolding her and gagging her, they forced her to divulge the personal identification number to her bank account. They then shot her twice in the head, and shortly thereafter depleted her bank account. The prosecution also presented eyewitness testimony that on the following night, January 18, 1995, petitioner directed the murder of Mr. Diop.
2. Procedural History
Bronx County Indictment No. 1086/95, filed on March 13, 1995, charged petitioner and co-defendants Eric Glisson, Michael Cosme, Cathy Watkins, Israel Vasquez, Charles McKinnon and Devon Ayers with five counts of Murder in the Second Degree, N.Y. Penal Law § 125.25[1] [3], one count of Conspiracy in the Second Degree, N.Y. Penal Law § 105.15, one count of Burglary in the First Degree, N.Y. Penal Law § 140.30[2], two counts of Robbery in the First Degree, N.Y. Penal Law § 160.15[1] [2], two counts of Criminal Use of a Firearm in the First Degree, N.Y. Penal Law § 265.09[1], two counts of Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, two counts of Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02[4], and one count of Criminal Possession of Stolen Property in the Fifth Degree, N.Y. Penal Law § 165.40.
Petitioner was tried jointly with Cosme, Vasquez and Ayers. The jury found petitioner, Cosme, Ayers and Vasquez guilty of both intentional murder and felony murder of Ms. Raymond. Petitioner, Cosme and Ayers were also found guilty of both intentional murder and felony murder of Mr. Diop, charges on which Vasquez was acquitted.
On April 15, 1997, petitioner moved, pursuant to Crim. Proc. Law § 330.30[1], [3], to set aside the verdict. Petitioner argued that evidence of his guilt was insufficient, that the trial court incorrectly declined to charge the jury that threats made by defendants to witnesses could be used only as evidence of consciousness of guilt and not as evidence-in-chief, and that a witness was mentally impaired at trial. On April 15, 1998, the trial judge denied the motion.
The trial court entered judgment on May 12, 1997, convicting petitioner of four counts of second-degree murder — one intentional murder and one felony murder conviction for each of the two murders. Petitioner received a sentence of two concurrent terms of 25 years to life for the murder of Ms. Raymond, consecutive to another two concurrent terms of 25 years to life for the murder of Mr. Diop, for a total sentence of 50 years to life.
Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, First Department, on the same grounds asserted in the instant petition: (1) that the evidence was legally insufficient and the verdict was against the weight of the evidence; (2) that the trial court erred in admitting a witness's grand jury testimony under the guise of impeachment evidence; (3) that the trial court improperly declined to instruct the jury that petitioner's threat to a witness indicated consciousness of guilt rather than evidence of guilt; and (4) that petitioner was denied effective assistance of counsel at sentencing. In an opinion dated May 4, 2000, the Appellate Division unanimously affirmed petitioner's conviction. See People v. Perez, 272 A.D.2d 86 (1st Dep't 2000) (mem).
Petitioner sought leave to appeal to the New York Court of Appeals on May 9, 2000. The Court of Appeals denied petitioner's application on June 7, 2000. See People v. Perez, 95 N.Y.2d 856 (2000) (table).
Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 29, 2001.
II. Discussion
1. Sufficiency of the Evidence
In point I of his habeas petition, petitioner contends that the evidence presented at trial was insufficient for the jury to convict him because the testimony of the State's key witnesses, Catherine Gomez and Miriam Tavares, was tainted by internal contradictions. Petitioner further contends that the verdict was against the weight of the evidence because the testimony of these witnesses was so deficient that no reasonable jury could have found him guilty beyond a reasonable doubt.
The Appellate Division has already reviewed these arguments on the merits in denying petitioner's direct appeal. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (a state court adjudicates a petitioner's federal constitutional claims on the merits when "it (1) disposes of the claim on the merits and (2) reduces the disposition to judgment," even if the state court does not make explicit reference to Supreme Court holdings). Although not making explicit reference to federal law, the Appellate Division found that "[d]efendant's guilt as to one incident was established by credible eyewitness testimony, and his guilt as to the other incident was established by circumstantial evidence, including incriminating statements made by defendant and reasonable inferences that may be drawn therefrom." Perez, 272 A.D.2d at 86. Since the state court decided petitioner's sufficiency of evidence claim on the merits, I may grant habeas relief only under the deferential standard prescribed by the governing statute, 28 U.S.C. § 2254 (d).
Section 2254(d)(1) mandates that where a state court has adjudicated a claim on the merits, a federal court may award habeas relief only if the state court's adjudication "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." 28 U.S.C. § 2254 (d)(1). To be considered "clearly established," federal law must be espoused in "the holdings, as opposed to the dicta of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412. A state court's holding is "contrary to" federal law as determined by the Supreme Court if it applies a rule different from that set forth by Supreme Court precedent, or if it decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Id. at 405-06. A state court's determination is an unreasonable application of clearly established federal law if it correctly identifies the legal principle but then applies the law to the facts of the case in an objectively unreasonable manner. Id. at 407-08.
To be entitled to habeas relief on a claim of sufficiency of the evidence, the Supreme Court has stated that a petitioner must demonstrate "that upon the record adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. 307, 324 (1979) (emphasis added). The Jackson standard does not provide this Court with the authority to assess fact-specific credibility judgments made by jurors, or to weigh conflicting testimony. Marshall v. Longberger, 459 U.S. 422, 434 (1983); see also Kirby v. Senkowski, 141 F. Supp.2d 383, 393 (S.D.N.Y. 2001). In addition, a petitioner challenging the sufficiency of evidence supporting his conviction bears a "heavy burden," United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995), because the habeas court must consider all of the evidence in the light most favorable to the prosecution, Jackson, 443 U.S. at 319, and assume that the trier of fact resolved any conflicting evidence in favor of the prosecution. Id. at 326; accord Marshall, 459 U.S. at 434 (holding, under the less deferential pre-AEDPA standard, that federal habeas courts had "no license to redetermine the credibility of witnesses whose demeanor had been observed by the trial court, but not by them"). Petitioner's job is made even more difficult by the fact that a jury's verdict "may be entirely based on circumstantial evidence," and the prosecution need not refute every conceivable defense. See Martinez, 54 F.3d at 1043.
At trial, petitioner's guilt was established primarily through the testimony of Catherine Gomez and Miriam Tavares, both of whom knew petitioner prior to the murders and both recounted specific conversations about the murders. Ms. Gomez testified that petitioner was present at a meeting during which some of the co-defendants discussed a crime involving a woman and a cab driver (Tr. at 596-97), and Ms. Tavares testified that petitioner described Ms. Raymond's murder to her. (Tr. at 1288-89.) Both witnesses' testimony was corroborated by other evidence. For example, Ms. Gomez's descriptions of the admissions made by petitioner and co-defendants were corroborated with physical evidence at the scene, while Ms. Tavares's testimony that petitioner ordered Mr. Diop's death with a throat-slitting gesture (Tr. at 1242), and her description of the homicide generally, were consistent with ballistic and forensic evidence as well as uncontested witness testimony. Although at times the testimony of Ms. Taverez and Ms. Gomez was internally contradictory, I cannot revisit the jury's determination on questions of credibility. See Marshall, 459 U.S. at 434.
After excluding credibility questions and drawing all inferences in the light most favorable to the prosecution, as I must do, I conclude that petitioner cannot demonstrate that the record as a whole was insufficient for any rational trier of fact to have found him guilty. There was clearly sufficient evidence for a jury to find petitioner guilty of the murders, and the verdict was not against the weight of the evidence. The Appellate Division's determination, then, was neither contrary to nor an unreasonable application of federal law as established by the Supreme Court, and petitioner is therefore not entitled to habeas relief under section 2254(d)(1). Accordingly, I dismiss petitioner's first claim for habeas relief.
2. Impeachment of Witness With Prior Inconsistent Statement
Petitioner next claims that the prosecution was improperly permitted to impeach Ms. Gomez with her grand jury testimony. Read broadly, see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), petitioner's brief in support of his habeas petition argues that (1) Ms. Gomez's testimony, because it did not affirmatively damage the prosecution's case, could not be impeached, and thus her grand jury testimony was improperly admitted for impeachment purposes; and (2) the impeachment evidence was then improperly used as evidence-in-chief.
The trial court allowed the prosecution to impeach its own witness, Ms. Gomez, with her grand jury testimony. During the grand jury proceedings, Ms. Gomez testified that petitioner admitted to her that he was present in Ms. Raymond's apartment and had hit Ms. Raymond with a gun. (Tr. at 793-99.) However, at trial, Ms. Gomez testified that petitioner's co-defendants admitted, in varying degrees, the roles that they played in Ms. Raymond's homicide, but that petitioner did not reveal his own participation. (Tr. at 607, 614-15.) Because Ms. Gomez's trial testimony contradicted her grand jury testimony, the judge permitted the prosecution to impeach Ms. Gomez with her grand jury testimony pursuant to N.Y. Crim. Proc. Law § 60.35[1]. After the prosecution questioned Ms. Gomez about her grand jury testimony, the court immediately instructed the jury that the statements made by Ms. Gomez in front of the grand jury could be used only "to evaluate the believability of the witness' testimony" at trial and not as proof of what happened on the day in question or of who may have been involved. (Tr. at 802.)
New York law clearly allows a party in a criminal proceeding to impeach its own witness with previous written or oral statements made by the witness if the witness, "upon examination by the party who called him . . . gives testimony . . . which tends to disprove the position of the party." N.Y. Crim. Proc. Law § 60.35[1]. Following this rule, the Appellate Division on direct appeal found that Ms. Gomez's exculpatory trial testimony positively damaged the prosecution's case, and accordingly held that it was proper for the trial court to permit the impeachment of Ms. Gomez and to issue a limiting instruction. Perez, 272 A.D.2d at 86.
Regardless of whether or not the Appellate Division's ruling was correct as a matter of state law, under the standard of 28 U.S.C. § 2254 (d)(1), see discussion supra, II.A., I cannot review petitioner's claim unless the Appellate Division's determination resulted in a decision that was contrary to, or an unreasonable application of, established federal law as determined by the Supreme Court. The Supreme Court has held that federal habeas courts will not review evidentiary rulings made by a state court unless a conviction resulting from those rulings violates the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67 (1991). I therefore turn to the question of whether the admission of the impeachment evidence was contrary to or involved an unreasonable application of federal law.
It is well established that prior inconsistent testimony may be used for the purposes of impeachment See e.g., United States v. Klein, 488 F.2d 481, 483 (2d Cir. 1973). If the impeachment evidence is also used as substantive evidence, a constitutional violation may result, depending on the nature and quality of the evidence and the other proof. There was not constitutional violation in this case. After admitting the prior inconsistent statement, the trial court gave a limiting instruction that the grand jury testimony was to be used only to assess Ms. Gomez's credibility. Because a jury is presumed to follow instructions given to it, the limiting instruction avoids a constitutional violation. See Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987).
However, even if the jury had disregarded the instruction or if the trial court had failed to give it, petitioner cannot demonstrate that the admission of the grand jury testimony constituted a violation of his constitutional rights. Ms. Gomez's prior statement to the grand jury, though admitted solely for impeachment purposes, could have been admitted also as evidence-in-chief of defendant's admission. When a witness states that her grand jury testimony was truthful, as Ms. Gomez stated at petitioner's trial (Tr. at 794), that testimony can subsequently be used both to impeach credibility, and, if the evidence is otherwise relevant, as affirmative evidence-in-chief. See Klein, 488 F.2d at 483. Accordingly, even if petitioner's contention that the prosecution used the grand jury testimony as evidence-in-chief is correct, petitioner cannot demonstrate constitutional error.
Viewed from either perspective, the trial court's limited admission of Ms. Gomez's grand jury testimony cannot serve as a basis for habeas relief, and I deny petitioner's claim for relief on that basis.
3. Consciousness of Guilt Charge
Petitioner's third argument for habeas relief is that the trial court gave an incorrect jury charge. Specifically, petitioner claims that the trial court erred by refusing to grant defense counsel's late request for a charge that Ms. Gomez's direct examination testimony of petitioner's threat to her could be used only to evaluate petitioner's consciousness of guilt, not as evidence-in-chief.
After Ms. Gomez testified at trial that petitioner had threatened her, defense counsel had several opportunities to request an instruction to the jury that testimony of petitioner's threat could be considered only as evidence that petitioner had a guilty conscience and not as evidence that petitioner was actually guilty. Defense counsel could have asked for such an instruction at least three times during the trial: when Ms. Gomez first testified about the threat, when the trial court initially entertained requests for the charge, and when the court gave its charge. At all junctures, however, defense counsel failed to request a charge and, after the court charged the jury, even explicitly said that it did not want such a charge (Tr. at 3078-79, 3085.) Despite this, when the jury requested a read-back of all of Ms. Gomez's direct examination testimony (which included her impeachment, her testimony about petitioner's threat, and her statement that she feared being in the courtroom that day), defense counsel requested that the trial court issue a consciousness-of-guilt charge regarding the threatening comments. (Tr. at 3131-3133.) The court denied the request, exercising its discretion to rule that it would not give "instructions that could have been contemporaneously requested at the time of testimony." (Tr. at 3138.)
According to Ms. Gomez's trial testimony, after petitioner was arrested, he called Ms. Gomez and told her that he knew Ms. Tavares had "snitched" to the police and that he was "going to kill" Ms. Tavares and anyone else who spoke with the police. (Tr. at 731-33.)
On direct appeal, the Appellate Division held that the trial court correctly refused petitioner's late request for a limiting jury instruction. The Appellate Division determined that because petitioner's threat included an "inferential admission of guilt," it "went beyond merely evincing a consciousness of guilt." Perez, 272 A.D.2d at 86. Thus, the Appellate Division determined that a consciousness of guilt charge need not have been given even if the request for one had been timely made.
Since the Appellate Division has already reviewed petitioner's claim on the merits, I may evaluate petitioner's claim only if the Appellate Division's determination was contrary to, or an unreasonable application of, federal law. See supra, II.A.
The legal sufficiency of a jury charge in a state trial is ordinarily an issue of state law. U.S. ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). In order for a federal court to overturn a state court conviction based on an incorrect jury instruction, a habeas petitioner must demonstrate that exclusion of the requested charge was not merely "undesirable, erroneous, or even `universally condemned,' but that the exclusion violated some right which was guaranteed to the [petitioner] by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146. To make this determination, the federal habeas court must review the entire charge, because any single instruction — or lack thereof — is just one of "several components of the trial that may result in the judgment of conviction." Id. Where the complaint is that a particular jury instruction was not given, such as here, petitioner's burden is particularly heavy because "[a]n omission . . . is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
In arguing his point, petitioner makes much of the fact that the trial court's instructions to the jury deviated from New York's standard jury instruction § 9.16. However, federal habeas courts do not grant relief merely because an instruction did not conform to a standard jury instruction model. See Estelle, 502 U.S. at 71-72. Instead, federal habeas courts must evaluate "[t]he significance of the omission of such an instruction . . . by comparison with the instructions that were given" to determine whether petitioner's federal constitutional rights were violated. Henderson, 431 U.S. at 156.
Criminal Jury Instruction § 9.16 reads in relevant part: "Only if you find the defendant was solely motivated by consciousness of guilt may you consider and weigh it in your deliberations. I instruct you that proof of conduct evidencing a consciousness of guilt has slight value. Standing alone, such evidence may never be made a basis for the finding of guilt." 1 N.Y. C.J.I. § 9.16.
in this case, although the trial judge did not instruct the jurors specifically on consciousness of guilt, he nonetheless instructed the jury appropriately. Considering the jury instructions in whole, it is clear that the trial judge committed no constitutional error by refusing to give a consciousness-of-guilt charge. Petitioner received a full and fair trial, and the judge's decision not to issue a consciousness-of-guilt instruction when counsel requested it so late in the proceedings did not deprive petitioner of his fundamental right to due process of law. Habeas relief on this ground is therefore not warranted.
4. Effectiveness of Counsel
As his final claim for habeas relief, petitioner contends that he was denied effective assistance of counsel after the jury verdict when his counsel told the court at sentencing, "If he did this crime the maximum sentence is not enough. Defendant claims he's innocent. I have nothing else to say." (Sentencing Tr. at 4.) Petitioner was sentenced to the maximum sentence: two concurrent terms of 25 years to life for each murder; for a total sentence of 50 years to life. Petitioner argues that counsel should have set forth mitigating factors, arguing that if his counsel had done so, he would have received a lesser sentence. Under New York law, the minimum sentence would have been 15 years to life for each murder, for a total of 30 years to life.
The Sixth Amendment guarantees criminal defendants the right to representation by a competent attorney, a right that continues through every stage of a criminal proceeding, even after a defendant is convicted and before he is sentenced. Gardner v. Florida, 430 U.S. 349, 458 (1977); Lopez v. Scully, 58 F.3d 38, 41 (2d Cir. 1995). This right maybe violated where both (1) counsel's performance is so deficient that "counsel [i]s not functioning as the `counsel' guaranteed by the Sixth Amendment," and (2) "the deficient performance prejudiced the defense."Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Bell v. Cone, 122 S.Ct. 1843, 1851-52 (2002) (holding that the failure to adduce mitigating evidence at sentencing is governed by the Strickland standard for ineffectiveness of counsel).
On direct appeal, the Appellate Division concluded that petitioner "received meaningful representation at sentencing" and that there was "no reason to believe that defendant's sentence would have been more lenient had counsel made different remarks on his behalf at sentencing." Perez, 272 A.D.2d at 86. The Appellate Division s conclusion was a correct and reasonable application of the Strickland standard. See Bell, 122 S.Ct. at 1852.
While petitioner's counsel at sentencing was faced with the daunting task of defending a client who had been convicted of two cold-blooded murders, the difficulty of this task does not shield the attorney's performance from scrutiny. Counsel's statement that the maximum sentence would not be enough if his client committed the murders does, on the surface, seem to lie outside the range of competent lawyering, particularly given that his client had already been found guilty of those murders. However, the comment may have been a reasonable and competent strategy. As defendant argues, "[f]aced with a judge who was thoroughly convinced of his client's guilt and status as the ringleader, counsel wisely chose not to further alienate the judge with unsupportable and self-serving allegations that his client was a `family man.'"
However, even if the attorney's statement was inappropriate, counsel's error alone does not merit setting aside a criminal proceeding if the error did not effect the outcome. Strickland, 466 U.S. at 694 (for habeas relief, 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"). Here, there is little probability that counsel's comment at sentencing had any impact on the sentencing judge, or otherwise caused the judge to assign petitioner a harsher sentence than he otherwise would have received.
The fact that petitioner's counsel failed to offer any mitigating factors to the sentencing court further does not change the analysis. Although defense counsel has a duty "to set before the judge the factors that might mitigate the defendant's sentence" see Thomas v. Lockhart, 738 F.2d 304, 310 (8th Cir. 1984), defense counsel is not obligated to present mitigating evidence where he has made a tactical decision that to do so would only prejudice his client. Strickland, 466 U.S. at 689 (strategic actions or omissions by counsel cannot establish ineffective assistance of counsel claims); cf. Burger v. Kemp, 483 U.S. 776, 789 (1987) (defense counsel not required to present mitigating factors counsel determines there are none). Moreover, it does not appear that petitioner had any particularly persuasive mitigating factors to offer at sentencing. Given the opportunity to supplenient his habeas record with explanation of the mitigating factors his counsel should have offered at sentencing, petitioner stated only that he was a "family man" and that he held a steady job. It is unlikely that presentation of these "mitigating" factors by his trial attorney at sentencing would have swayed the sentencing judge to impose a lighter sentence.
Petitioner has not made out a claim for ineffective assistance of counsel at sentencing, and this final count of the habeas petition is therefore dismissed.
III. Conclusion
For the reasons stated, the instant petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied. Because petitioner has failed to make a substantial showing of the denial of a constitutional right on any claims raised in the petition, see 28 U.S.C. § 2253(c)(2), petitioner is not entitled to a certificate of appealability.
SO ORDERED.