Opinion
99 Civ. 9092 (HB)
February 27, 2001
OPINION AND ORDER
I. INTRODUCTION
Ron Summers ("petitioner") filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ("petition"), in which he alleges that his confinement by New York State violates federal law because (1) he was denied due process when the trial court improperly admitted evidence of a witness's out-of-court showup identification and permitted an in-court identification; (2) he was denied due process and a trial by an impartial jury when the trial court refused to declare a mistrial on the basis of jury bias; and (3) that he was denied his due process right to a fair trial when the trial court improperly admitted an arrest photograph. For the reasons set forth below, the petition is denied.
II. BACKGROUND
At trial, the prosecution alleged the following facts. On November 9, 1993, Shannon Berry ("Ms. Berry") was robbed at gunpoint by the petitioner on the southbound number 5 subway train. Petitioner committed the robbery as the train approached the East Tremont station, and immediately thereafter fled through the train's open doors. Ms. Berry remained on the train until the Freeman Street station where she gave a description of petitioner to the transit police. She was able to provide a reasonably detailed description because petitioner had stood in front of Ms. Berry for several minutes before committing the robbery. Petitioner contended at trial, and does so again in his petition, that he is not Ms. Berry's assailant.
On November 12, 1993, Ms. Berry and a friend were walking to Truman High School where they were students when Ms. Berry recognized petitioner walking in the direction of the Baychester Avenue subway station. After she alerted Police Officer Vega ("Vega"), and provided him with a description of petitioner, Ms. Berry, Vega and Vega's partner drove in the direction of the Baychester Avenue subway station in hopes of catching up with petitioner. At the station, Ms. Berry identified petitioner and pointed him out to the police officers. The officers attempted to apprehend petitioner, but by the time that they had climbed the platform petitioner had departed on the southbound train.
Two stops later, at the Esplenade station, other police officers who had been radioed by Vega halted the train. A police officer used the description given by Ms. Berry to Vega to identify petitioner. Shortly thereafter, Ms. Berry arrived with Vega and identified the petitioner. At that time, petitioner was in the company of several police officers.
At a combined Mapp, Wade, and Dunaway hearing before Justice Robert Seewald of the New York Supreme Court, Bronx County, petitioner argued that Ms. Berry's showup identification of petitioner at the Esplenade station ("showup identification") should be suppressed. Petitioner argued, inter alia, that the police should have conducted a lineup at the police station which was nearby, and that the showup was impermissibly suggestive since petitioner was the only civilian present, surrounded by police officers. The hearing court declined to suppress the showup identification because Ms. Berry had on two previous occasions identified petitioner under plainly nonsuggestive circumstances. In neither of the two previous identifications had the police been present.
Petitioner's first trial on a charge of robbery in the first degree resulted in a mistrial when the jury deadlocked. During the voir dire in the second trial, Irma Sparks ("Sparks"), a sworn juror, asked to be removed from the jury on the ground that she had seen the petitioner several times in her neighborhood and she feared retribution were petitioner to be convicted. An in camera colloquy followed, at which Sparks stated that she had shared her concerns with another juror, Irene Smith ("Smith"). Smith, upon subsequent questioning, stated that Sparks' comments had no effect on Smith's ability to serve impartially, but stated that she had spoken with other jurors about Sparks' concerns. After removing Sparks from the jury, the court, along with trial counsel, questioned each of the remaining jurors. Each juror stated that Sparks' concerns had no impact upon his or her ability to be impartial. The trial court therefore denied petitioner's application for a mistrial.
In the second trial, the prosecution based its case upon Ms. Berry's identifications of petitioner, including Ms. Berry's in-court identification of petitioner. In rebutting the defense of misidentification, and to demonstrate that petitioner's appearance at the time of his arrest matched the description furnished by Ms. Berry on the day of the theft, the prosecution introduced the arrest photograph of petitioner. The trial court rejected petitioner's claim that the arrest photo was prejudicial and allowed the photograph into evidence upon the condition that a prosecution witness explain to the jury that all people who are arrested and taken to central booking are photographed.
The jury convicted petitioner of first degree robbery on October 27, 1995. Petitioner appealed to the Appellate Division, First Department, on February 8, 1996, alleging the same grounds as presented in his petition, as well as a challenge to the severity of petitioner's sentence. On May 12, 1998, the Appellate Division affirmed unanimously petitioner's conviction. On September 15, 1998, the Court of Appeals denied leave to appeal.
III. DISCUSSION
A. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254
Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") limits but still provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254 (a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("[t]his Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution"). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72 (1977). Petitioner bears the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume State courts' factual findings to be correct, 28 U.S.C. § 2254 (e)(1), and may not grant relief unless they find that the state court's adjudication of the claims either: (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)(1), (2); see Williams v. Taylor, 529 U.S. 362 (2000).
B. Claim 1: The Identification
Petitioner alleges that the admission of the showup identification and the in-court identification violated his right to due process and a fair trial.
A defendant's due process rights include the right not to be the object of pretrial identification procedures that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Suggestive procedures are disapproved "because they increase the likelihood of misidentification," and it is the admission of testimony carrying such a "likelihood of misidentification which violates a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). Courts should set aside a conviction based on eyewitness identification only when pre-trial identification procedures were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misrepresentation." Manson v. Brathwaite, 432 U.S. 98, 121 (1977); Wray v. Johnson, 202 F.3d 515 (2nd Cir. 2000).
Whether eyewitness identification evidence which ensues from a pre-trial identification procedure is constitutionally infirm requires a two-step inquiry. First, it must be determined whether the pre-trial identification procedures were unduly suggestive of the suspect's guilt. If so, then the suggestiveness of the identification procedures must be balanced against factors indicating that the in-court identification was independently reliable. Dickerson v. Fogg, 692 F.2d 238, 244 (2ndCir. 1982).
Ms. Berry identified petitioner three times before trial. The police were not present at the first identification near Truman High School. Vega was present at the second identification, but Ms. Berry's identification did not result from a police procedure. Ms. Berry simply spotted petitioner on the subway platform and pointed him out to Vega. The hearing court and the Appellate Division found that the showup, the third identification by Ms. Berry, was not unduly suggestive because she merely confirmed that the person arrested by the police was the same person that she had twice seen within the hour. I cannot find fault with that determination. Since the police procedures were not impermissibly suggestive, I do not reach the question of the reliability of the identification. See Dickerson, 692 F.2d at 244.
While it is troubling that the best, and in fact only, evidence connecting petitioner to the crime was the complainant's identification of the defendant three days following the incident, it is neither unusual nor a ground for relief from petitioner's conviction. C.f Lyons v. Johnson, 99 F.3d 499, 504 (2nd Cir. 1996) (noting that "eyewitness testimony is often highly inaccurate" and that the "issue of misidentification is absolutely fundamental to a criminal trial").
The prosecution never located either the gun used by the petitioner or Ms. Berry's necklace, the fruit of the robbery.
Petitioner has at no point challenged the sufficiency of the evidence used to convict him. Even had the petition raised such a claim, it is doubtful that petitioner's due process arguments on appeal were sufficient to put the state appellate court on notice and to exhaust a `sufficiency of the evidence' claim. See Holden v. Miller, 2000 U.S. Dist. LEXIS 11889 (S.D.N.Y. 2000) (citing two distinct lines of cases that discuss whether a petitioner who invokes due process protections in the state court proceedings satisfies the exhaustion requirements for a sufficiency of the evidence habeas claim). Moreover, even if available, such an argument would fail. A state criminal conviction will be upheld if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). A rational trier of fact could find on the basis of Ms. Berry's testimony that the prosecution made out the essential elements of the crime of robbery in the first degree beyond a reasonable doubt. See Manning v. Walker, 2001 U.S. Dist. LEXIS 109, *15-19 (E.D.N.Y. 2001) (prosecution's evidence sufficient even though greatly dependent upon the identification testimony of one eye-witness); United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979) ("the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction"); Johnson v. Bartlett, 1998 U.S. Dist. LEXIS 16053, at *13-14 (S.D.N.Y. 1998).
Because the decisions of the trial court and the Appellate Division were not contrary to, nor did they involve an unreasonable application of clearly established federal law, Claim 1 will be dismissed.
C. Claim 2
Petitioner alleges the trial court's refusal to declare a mistrial on the basis of jury bias denied him due process and a trial by an impartial jury.
The test of juror impartiality is whether "the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irwin v. Dowd, 366 U.S. 717, 723 (1961). Whether a juror is impartial is a matter "of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton v. Yount, 467 U.S. 1025, 1036 (1984). A habeas court owes considerable deference to the determination of the trial court that a juror is impartial. Patton, 467 U.S. at 1037 n. 12 ("whether a juror can in fact do that is a determination to which habeas courts owe special deference [to the trial court]").
Here, the trial court conducted an individual voir dire with each juror in the privacy of the robing room and proceeded to trial only after each juror swore that he or she could be fair and impartial, and after the court made an individual determination that each such statement was credible. Petitioner has not given this Court any basis to overrule the trial court's conclusion.
Because the decisions of the trial court and the Appellate Division were not contrary to, nor did they involve an unreasonable application of clearly established federal law, Claim 2 will be dismissed.
D. Claim 3
Summers alleges that he was denied his due process right to a fair trial by the introduction of a photograph taken at the time of his arrest.
Arrest photographs are admissible to corroborate a witness's testimony as long as the photograph does not refer to prior crimes or expose the jury to evidence of a defendant's criminal record. See United States v. Mohammed, 27 F.3d 815, 822 (2nd Cir. 1994); Day v. Scull, 952 F. Supp. 957, 970 (E.D.N.Y. 1997). Here, the trial court allowed the arrest photograph into evidence to demonstrate that petitioner's appearance at the time of his arrest matched the description furnished by Ms. Berry on the day of the robbery, and to rebut the defense of misidentification. The trial court admitted the photograph only upon the condition that the prosecution elicit testimony that all people who are arrested and taken to central booking are photographed. Thus, the arrest photograph did not imply that the petitioner had a prior criminal record. See Mohammed, 27 F.3d at 822.
Further, as a general rule, state evidentiary rulings do not implicate federal law and are therefore not reviewable by federal courts. See Avala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994). A habeas court may review a state court's allegedly erroneous evidentiary ruling only if it was so egregious that it rendered the petitioner's trial fundamentally unfair and in violation of due process. See Chambers v. Mississippi, 410 U.S. 284 (1973); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). An erroneous evidentiary ruling renders a trial fundamentally unfair only if the contrary ruling would have left reasonable doubt as to the guilt of the accused. See Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Taylor, 708 F.2d at 891. In order to prevail on such a claim, a petitioner must show a reasonable probability that the admission of the evidence affected the outcome of the trial. Collins v. Scull, 755 F.2d 16, 19 (2d Cir. 1985).
Even if the trial court erred in admitting the arrest photograph, petitioner has not shown that the admission of the arrest photograph was "fundamentally unfair." Nor does the record suggest that without the photograph there would have been reasonable doubt about the guilt of the defendant. See Johnson 955 F.2d at 181. Because the decisions of the trial court and the Appellate Division were not contrary to, nor did they involve an unreasonable application of clearly established federal law, claim 3 will be dismissed.
IV. CONCLUSION
For the reasons set forth above, Summers' habeas corpus petition is DENIED and the Clerk of the Court is directed to close the case.
SO ORDERED.