Opinion
No. 97 Civ. 1136 (MGC).
September 20, 2001.
MARVIN THOMAS, Petitioner Pro Se, #94R3227, Watertown Correctional Facility, Watertown, N.Y.
DENNIS C. VACCO, Attorney General of the State of New York, Attorney for Respondent, New York, N.Y.
MEMORANDUM OPINION AND ORDER
Marvin Thomas, a state prisoner, petitions for a writ of habeas corpus to vacate the judgment of conviction and sentence entered by Justice Frederic Berman on April 6, 1994 in New York State Supreme Court, New York County. A jury convicted petitioner of criminal sale of a controlled substance in the third degree (N.Y. Penal Law § 220.39(1)), and petitioner was sentenced to a prison term of four and one-half to nine years. On May 9, 1996, the Appellate Division, First Department, affirmed petitioner's conviction. People v. Thomas, 642 N.Y.S.2d 247 (1st Dep't 1996). On June 17, 1996, the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Thomas, 88 N.Y.2d 943 (N.Y. 1996).
Petitioner advances four grounds for relief. First, petitioner contends that there was insufficient evidence to support his conviction. Second, petitioner claims that the trial judge failed to charge the jury that if petitioner was acting solely as an agent of the purchaser, he could not be convicted of criminal sale of a controlled substance. Third, petitioner contends that the trial judge improperly admitted into evidence money found in petitioner's hand at the time of his arrest. Fourth, petitioner claims that the prosecutor made improper comments in summation. Petitioner raised each of these grounds in his direct appeal to the Appellate Division, First Department and in his application for leave to appeal. For the reasons that follow, the petition for a writ of habeas corpus is denied.
BACKGROUND
On August 6, 1993, Detective Scott Dillo was working undercover as a drug buyer and Officer Lawrence Kaissane was acting as his "ghost," observing the scene, and ready to step in to protect Detective Dillo. At approximately 3:30 P.M., the officers arrived in the vicinity of 44th Street and Eighth Avenue, Manhattan, the area that was assigned to them that day.
Dillo and Kaissane observed petitioner standing on the corner of 45th Street and Eighth Avenue and looking from side to side. Dillo made eye contact with petitioner. Petitioner nodded to Dillo, and Dillo approached him. Dillo asked petitioner, "any dimes out?" (T. 340) After responding immediately, "yeah, come on," (T. 340), petitioner took Dillo to Kevin Samuels and Raymond Arthur who had been standing about ten feet away from the initial contact point. During the short walk to the two men, petitioner looked over his shoulder at the street behind them. When petitioner and Detective Dillo met Samuels and Arthur, petitioner told them to "hook him [Dillo] up." (T. 340)
A "dime" is street slang for a ten-dollar bag of crack.
Samuels asked Dillo "how many you need?" (T. 341) Dillo responded, "five." (Id.) Samuels handed Dillo three bags of crack cocaine and told Arthur to give Dillo two more bags, which appeared to contain crack cocaine but were later found to contain no controlled substance. Dillo handed Samuels fifty dollars of prerecorded buy money. Petitioner did not handle either the drugs or the buy money. However, petitioner was looking around during the transaction while Arthur, Samuels, and Dillo focused their attention on the exchange. Officer Kaissane was standing about fifteen to twenty feet away from where the sale took place. While Dillo went back to his van to radio the back-up team, Kaissane continued to watch petitioner, who remained with Arthur and Samuels. All three were looking down at Samuels' hands. A short time later the three separated. Samuels walked north and Arthur and petitioner walked south to a phone booth.
The three men were arrested and Dillo identified them as the three men involved in the transaction. At the time of his arrest, petitioner was holding five one-dollar bills that were not prerecorded buy money. A search of petitioner also revealed a crack pipe with cocaine residue.
After a jury trial, petitioner was convicted of criminal sale of a controlled substance in the third degree, and petitioner was sentenced to a term of four and one-half to nine years.
DISCUSSION
Sufficiency of Evidence
Petitioner contends that the evidence at trial was insufficient to establish beyond a reasonable doubt that he was guilty of participating in the criminal sale of a controlled substance. Federal habeas corpus relief on the basis of insufficient evidence is not warranted 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 see United States v. Zagari, 111 F.3d 307, 327 (2d Cir. 1997);United States v. Labat, 905 F.2d 18, 22 (2d Cir. 1990)
Petitioner was convicted under New York Penal Law § 20.00, which imposes criminal responsibility for the conduct of another when with "the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." Specifically, petitioner was convicted of aiding a sale of narcotics. Section 220.39 of the New York Penal Law provides in relevant part that [a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells: 1. a narcotic drug . . .
The evidence at trial was sufficient to allow a rational trier of fact to find that petitioner intentionally aided the sale of crack cocaine to Detective Dillo. When Dillo asked petitioner "any dimes out?", petitioner immediately led Dillo to Arthur and Stevens and told them to "hook him up." Petitioner remained present and looked up and down the block throughout the transaction. It was reasonable to infer from petitioner's behavior during the course of the transaction that he was acting as a steerer and a "lookout." Finally, petitioner remained with the dealers after the exchange. Taken together, these facts support petitioner's conviction for intentionally aiding a sale of crack. See People v. Smith, 631 N.Y.S.2d 683, 684 (1st Dep't 1995) ("[D]efendant's guilt was proven beyond a reasonable doubt by evidence that he intentionally aided his accomplices by steering an undercover detective to them for the purchase of drugs, directing one accomplice to provide him with drugs, acting as a lookout during the sale, and by remaining with the accomplices after the sale was completed.").
Accordingly, viewing the evidence in the light most favorable to the government, the jury's finding was not "so devoid of evidentiary support that a due process issue is raised." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (internal quotations omitted).
Improper Jury Charge
Petitioner contends that the trial judge was required to instruct the jury that if petitioner was acting solely as the agent of the purchaser of narcotics, he could not be convicted of the criminal sale of narcotics. See People v. Roche, 45 N.Y.2d 78, 81 (N.Y. 1978). See also People v. Argibay, 45 N.Y.2d 45, 55 (N.Y. 1978) (court is required to give the jury an agency charge whenever "there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer"). The Appellate Division concluded that petitioner's claim that the "court erred in not charging the jury on the defense of agency is unpreserved as a matter of law, and, in any event, without merit." People v. Thomas, 642 N.Y.S.2d 247 (1st Dep't 1996) (internal citations omitted).
In general, "if a state court rests its judgment on an adequate and independent state ground, including a state procedural bar, [the district court is] precluded from reviewing the claim on federal habeas unless the petitioner shows cause for the default and prejudice resulting therefrom."Reid v. Senkowski, 961 F.2d 374. 377 (2d Cir. 1992). See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997). In order to preclude federal. review, the last state court to render judgment must "clearly and expressly state that its judgment rest[ed] on a state procedural bar." Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (citations omitted). In this case, in addition to concluding that petitioner's claim was without merit, the Appellate Division clearly determined that petitioner's claim was procedurally barred. Moreover, petitioner has failed to make any showing of cause for his procedural default. Nor has petitioner shown that he suffered any prejudice as a result of the trial court's failure to include an agency charge in its jury instructions. The evidence at trial did not suggest that petitioner was acting as an agent for Dillo. Dillo was a complete stranger to petitioner, whereas petitioner knew both Arthur and Samuels. When Dillo approached and asked petitioner if he had "any dimes," petitioner immediately led Dillo to the sellers. After the transaction was completed, petitioner remained with Arthur and Samuels, rather than leaving with Dillo. Petitioner's behavior, before, during and after the sale, was not consistent with his functioning as an agent for Dillo. The jury could not reasonably conclude from this evidence that petitioner was acting as an agent of the buyer. See People v. Herring, 83 N.Y.2d 780, 782-83 (N.Y. 1994)
Improper Admission of Evidence
Petitioner argues that the court improperly admitted the five dollars found on him at the time of the arrest. He contends that there was no evidence that he received the money from Samuels or Arthur. Petitioner asserts that because the five one dollar bills were not part of the pre-recorded buy money used by Dillo, they were irrelevant and their admission was unfairly prejudicial.
"Erroneous evidentiary rulings do not automatically rise to the level of constitutional error, . . . [T]he writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) (emphasis in original); see also Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). "A defendant is deprived of a fundamentally fair trial if, in the context of the entire record, the omitted evidence would have created a reasonable doubt that did not otherwise exist." See Deutsch v. Jacobson, 1997 WL 381930, at *3 (S.D.N.Y. July 8, 1997), aff'd 159 F.3d 1346 (2d Cir. 1998); see also Hincapie v. Greiner, 2001 WL 935469 (S.D.N.Y. Aug. 15, 2001). The evidence of petitioner's participation in the crime and his guilt was overwhelming, even without the additional evidence of petitioner's possession of the five one-dollar bills.
Improper Summation by Prosecution
Petitioner contends that the prosecutor's summation was improper and unfairly prejudicial because it referred to matters not in evidence and invited the jury to speculate. The statements that the petitioner objects to include: (1) telling the jury that the detectives "had no doubt that the defendant was selling drugs" and that they "knew immediately [that petitioner was] a dealer that was acting as a steerer" (summation at 217, 239-40); (2) asking the jury to speculate that the reason petitioner had a crack pipe was to test whether a potential buyer was an undercover detective (summation at 237); (3) suggesting to the jury that Samuels left to "re-up," or get more drugs (summation at 219-220, 235-36); (4) proposing that the five dollars found in petitioner's hand at the time of his arrest was indicative of a payment from Arthur and Samuels (summation at 238-39); (5) insinuating that it was the defense's burden to explain the presence of the five dollars (summation at 220); and (6) referring on three occasions to petitioner, Arthur and Samuels as "professionals" involved in a "professional drug deal." (summation at 215-17).
At trial, petitioner objected to only two of the statements described above: that it was the defense's burden to explain why petitioner had the five dollars and the reference to petitioner as a "professional." The trial judge sustained each of the objections and gave curative instructions as to each statement. The Appellate Division clearly held that petitioner failed to preserve his other objections to the summation. People v. Thomas, 642 N.Y. So.2d 247 (1st Dep't 1996). This procedural bar constitutes an adequate and independent state ground that precludes federal habeas relief unless petitioner can show cause for his default and resulting prejudice. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992). Petitioner has not shown cause for his default. Petitioner had ample opportunity to object to all of the statements, as evidenced by his counsel's numerous objections to other statements made by the prosecution during summation.
Prosecutorial misconduct violates a defendant's due process rights only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial." Greer v. Miller, 483 U.S. 756, 765 (1987). In order for statements in a summation to warrant habeas relief, the cumulative effect of the challenged statements must be so inflammatory as to require a finding of substantial prejudice. See Bradley v. Meachum, 918 F.2d 338, 343 (2d Cir. 1990); Floyd v. Meachum, 907 F.2d 347, 356 (2d Cir. 1990). Three factors are considered in determining whether a prosecutor's summation created such "substantial prejudice": "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (quoting Floyd, 907 F.2d at 355)
While some comments made by the prosecutor during summation were entirely improper, they did not rise to the level of creating "substantial prejudice" such that petitioner was deprived of his constitutional right to a fair trial. It "is not enough that the prosecutor['s] remarks were undesirable or even universally condemned. The 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. Wainright, 477 U.S. 168, 181 (1986) (internal citations omitted).
The trial court gave sufficient curative instructions with respect to the only two statements objected to at trial. First, with respect to the burden of explaining the presence of the five dollars, the trial court instructed the jury that it was, in fact, the prosecution's burden to prove each element of the crime charged. Second, the trial court instructed the prosecutor, in the presence of the jury, that "I'm going to ask you not to characterize the defendant or others in terms of professionals because that could certainly suggest unfairly that there have been many of these transactions conducted by the defendant in the past." (summation at 218). Moreover, petitioner's guilt is not in doubt. The evidence at trial overwhelmingly showed that petitioner intentionally aided in the commission of the criminal sale of crack cocaine. Accordingly, while it was improper for the prosecution to ask the jury to draw conclusions not plainly inferable from the evidence and to insinuate that petitioner bore the burden of explaining his possession of five dollars, these statements did not substantially prejudice petitioner.
CONCLUSION
For the foregoing reasons, Marvin Thomas's petition for a writ of habeas corpus is denied.
SO ORDERED.