Opinion
No. 96 CIV. 2115(MBM).
May 6, 1997
Richard Sunday Ifill, Fallsburg, NY, pro se.
Dennis C. Vacco, Attorney General of the State of New York, Avi Lew, Assistant Attorney General, for Respondent.
OPINION AND ORDER
*1 Richard Sunday Ifill petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate both his conviction for robbery in the first degree and his 18 years to life sentence, on the following grounds: (1) his trial counsel was ineffective (Pet. Mem. at 28); (2) the trial judge violated his rights under New York Criminal Procedure Law § 730.60 by finding him competent to stand trial (Pet. Mem. at 16); and (3) the trial judge acted improperly in failing to declare a mistrial when petitioner had an "emotional mental breakdown" in front of the jury (Pet. Mem. at 37). For the reasons set forth below, the Magistrate Judge's Report and Recommendation (the "Report") is adopted, the writ is denied, and the petition is dismissed.
I.
Because the Report fully details the facts of the case, I need only summarize them here. On the night of March 4, 1987, petitioner entered Raimundo DaSilva's livery cab and held a gun to his head. (Tr. at 14-15) Over a four-hour period, petitioner and DaSilva drove through three of New York City's boroughs. Petitioner then demanded DaSilva's valuables and money, ordered DaSilva to exit the car and drove away. (Id. at 17, 19, 20, 23-24)
Six days later, petitioner was stopped on the Ohio Turnpike by Ohio State Trooper Michael Knoll for "driving erratically." (Id. at 141-42) After a computer check of the car revealed it was stolen, petitioner pulled what appeared to be a gun on Knoll and threatened him. (Id. at 155-56) After a brief struggle, Knoll recovered the weapon, which was actually a toy gun. (Id. at 156-63)
Petitioner's conviction was affirmed unanimously by the Appellate Division in People v. Farrell, 184 A.D.2d 396, 585 N.Y.S.2d 353 (1st Dep't 1992) (mem.), and the New York Court of Appeals denied leave to appeal, People v. Farrell, 80 N.Y.2d 974, 591 N.Y.S.2d 143, 605 N.E.2d 879 (1992).
II.
Petitioner claims first that his counsel was ineffective and cites four examples of this ineffectiveness.
To prove ineffective assistance of counsel, petitioner must satisfy two requirements. Counsel's actions must fall "below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court has noted that there is a "wide range of professionally competent assistance." Id. at 690. Also, a defendant must prove also "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693. Neither of these requirements is met here.
First, petitioner claims that his counsel was ineffective in failing to object to the trial court's competency determination. In fact, counsel argued in a pre-trial motion that the court lacked jurisdiction because the trial court's determination that petitioner was competent to stand trial violated New York Criminal Procedure Law § 730.60(2), which, he claimed, requires that a competency determination be made only by the superintendent of the confining institution. (Pet.Ex. F.1) The trial judge rejected that claim in a written opinion dated July 18, 1989. (Pet.Ex. D) Accordingly, contrary to petitioner's argument, his counsel did in fact make the argument, it was rejected, and any further assertion of this objection would have been fruitless.
*2 In addition, petitioner argues that his counsel's motion to dismiss for lack of jurisdiction was untimely. However, even if the motion was untimely, the court considered and rejected it on its merits.
Second, petitioner claims that his counsel was ineffective in not objecting to evidence of uncharged crimes. This claim, too, has no basis. Before trial, petitioner's counsel submitted a brief opposing the prosecution's introduction of this evidence. (See Resp. Mem. at 12-13; Tr. at 34.) Counsel's failure to object to this evidence again at trial does not constitute ineffective assistance.
Third, petitioner claims that counsel's concession to the jury that petitioner was guilty of robbery constituted ineffective assistance of counsel. In his summation, petitioner's counsel argued that second degree robbery was the appropriate verdict because Officer Knoll found petitioner with a toy gun, not one capable of being fired as would be required to support a conviction for first degree robbery. Counsel's tactical decisions of this sort rarely amount to constitutionally ineffective assistance. See United States v. Kirsch, 54 F.3d 1062, 1072 (2d Cir.), cert denied, 516 U.S. 927, 116 S.Ct. 330, 133 L.Ed.2d 230 (1995). Here, counsel's argument was a reasonable and rational defense, particularly in light of the driver DaSilva's testimony, in which he linked petitioner with the livery cab robbery and in which DaSilva left open at least the possibility that the toy gun was the one petitioner used during the robbery. (Tr. at 33)
Finally, petitioner claims that his attorney did not object to the prosecutor's characterization of him as a "lunatic." Even a perfunctory reading of the transcript shows that the prosecutor did not so characterize petitioner. In fact, the prosecutor stated, "Is this guy a lunatic. This guy planned it." (Tr. at 222) The prosecutor was not claiming that petitioner was a lunatic, but actually was advancing the opposite proposition-that petitioner rationally planned and intentionally committed the crime with which he was charged. This comment was not objectionable and counsel's failure to object was not a constitutional violation. At all times, petitioner was served by capable counsel who effectively assisted him in his defense. Petitioner's claim of ineffective assistance of counsel is denied.
III.
Petitioner claims that the trial judge violated New York Criminal Procedure Law § 730.60 when he found petitioner fit to stand trial. However, petitioner's claim is barred and fails on its merits.
Petitioner claims here, as he did on appeal, that New York Criminal Procedure Law § 730.60 required that the superintendent of the Mid-Hudson Psychiatric Center, not the trial judge, find defendant competent before he could stand trial. When a state appellate court rejects a claim on "adequate and independent state grounds," whether procedural or substantive, a federal court cannot re-examine the claim unless the petitioner demonstrates cause for the default, prejudice, or a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 261-262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1986); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). Although there is evidence that petitioner's counsel did raise this argument in a pre-trial motion (Pet.Ex. F.1, D), the Appellate Division held that this claim was unpreserved as a matter of law and therefore I cannot reexamine the issues.
*3 Federal relief is available only if petitioner can establish cause for the default and prejudice, or if a "fundamental miscarriage of justice" will result from refusal to consider this claim. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1986). Petitioner has made neither showing here. His only possible claim of cause for default would be ineffective assistance of counsel, because petitioner's counsel was responsible for the failure to object at trial and the later rejection of the claim by the Appellate Division. However, as noted above, counsel's failure to object to the judge's competency determination during trial cannot be considered constitutionally ineffective assistance. Further, as the Magistrate Judge wrote in his Report, no miscarriage of justice resulted from the conviction because evidence against petitioner was overwhelming.
Petitioner's claim fails also on the merits. New York Criminal Procedure Law S § 730.30 and 730.60 describe the procedure for competency hearings. According to § 730.30, when a defendant is found "incapacitated" by his psychiatric examiners, the court may, on its own motion, hold a competency hearing and make its own competency determination. This procedure seems contradictory to § 730.60, which, petitioner claims, mandates that the supervisor of the institution in which the defendant is confined, not the judge, determine competency. Read together, however, these sections make it clear that final authority for determining competency lies with the court. See People v. Gans, 119 Misc.2d 843, 465 N.Y.S.2d 147, 149 (Sup.Ct. New York County 1983) ("The determination of a defendant's competence to proceed is a judicial determination to be made by the court."); People v. Grieco, 82 Misc.2d 500, 368 N.Y.S.2d 992, 997 (Sup.Ct. Westchester County 1975) ("[T]his court construes the affected section and subdivision [N.Y. Criminal Procedure Law § 730.30(2)] as being broad enough to place the ultimate responsibility of deciding the legal issue of competency in the court."); see also N.Y.Crim. Proc. Law § 730.30, Practice Commentaries (McKinney 1993) ("The ultimate decision on fitness to proceed lies with the court."); N.Y.Crim. Proc. Law § 730.60, Practice Commentaries (McKinney 1993) ("The medical, psychiatric authorities and the superintendent of the institution of confinement, despite the loose language and sequence of subdivision 2, do not have the final word for `determining' that a patient-accused is no longer an incapacitated person. It is the court that must make that determination pursuant to section 730.30.") Here, petitioner was afforded two competency examinations and one competency hearing within two years before trial. All the examining doctors, and the original trial court judge, found petitioner competent to stand trial. Additional certification from the supervisor of the Mid-Hudson Psychiatric Center was neither constitutionally required nor required by New York Criminal Procedure Law §§ 730.30 or 730.60.
IV.
*4 The trial judge's failure to declare a mistrial after petitioner suffered an "emotional mental breakdown" during trial and in front of the jury did not violate petitioner's right to a fair trial.
During the trial, the prosecution flew Officer Knoll to New York to testify. Petitioner was apparently aware that Knoll had only one day to testify. (Tr. at 124) Shortly after Knoll began testifying, petitioner stood up, cut his wrist with a razor, and shouted he was guilty. (Tr. at 121) Outside the presence of the jury, the judge said, "[T]he defendant seemed to be appealing to the jury and after an outburst he was awaiting a reaction and if he didn't get the expected reaction then repeating the outburst." (Tr. at 123) The judge then told the jury that the outburst was not to be considered as indicating guilt or innocence and, "I ask you to put it out of your mind." (Tr. at 126) The judge rejected defense counsel's motion for a mistrial, calling the outburst "volitional conduct" and "a last ditch attempt by Defendant to avoid this case being submitted to the jury." (Tr. at 136)
It is unclear what petitioner said and what the jury heard. The court transcript preserves his statements as, "I am not-hey I am guilty hakee hakee hakee hakee hakee hakee hakee." (Tr. at 121) The trial judge said he heard "I am guilty and kill me." (Tr. at 121) According to petitioner, he said, "God told me to do it, I am guilty." (Petition at 3A, ¶ 4)
The trial judge's failure to declare a mistrial over this outburst did not render the trial unfair. The trial judge considered petitioner's psychiatric evaluation as a malingerer and determined that the "breakdown" was an intentional act, calculated to disrupt the trial. He took appropriate steps to mitigate any prejudice to petitioner. Therefore, denial of the mistrial motion was within the court's discretion. See Torres v. Justices of the Supreme Court of the State of N.Y., Queens County, 82 A.D.2d 892, 440 N.Y.S.2d 294, 295 (2d Dep't 1984) ("While it may be true that the petitioner's misconduct was the reason for his absence, this did not justify the declaration of a mistrial."); United States v. Bentvena, 319 F.2d 916, 930-31 (2d Cir. 1963) (holding that declaration of a mistrial was not necessary when some defendants threw chairs, walked into jury box, and pushed and insulted jurors). See also Illinois v. Allen, 397 U.S. 337, 349-350, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring) (quoting Falk v. United States, 15 App.D.C. 446 (D.C. Cir. 1899)) ("It does not seem to us to be consonant with the dictates of common sense that an accused person . . . should be at liberty, whenever he pleased, . . . to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it.")
For the reasons stated above, the Report is adopted, the writ is denied and the petition is dismissed. For those same reasons, petitioner has made no substantial showing of denial of a constitutional right. Accordingly, no certificate of appealability will issue. See, Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997).
SO ORDERED.