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July 18, 1985

FELIPE GARCIA, Petitioner,

The opinion of the court was delivered by: CONNER


Petitioner Felipe Garcia ("Garcia") was tried and convicted of four counts of second degree murder by a jury sitting in New York Supreme Court, New York County. On May 23, 1978, he was sentenced to four concurrent indeterminate prison terms of twenty years to life. Garcia appealed, and on February 3, 1981, the Appellate Division of the New York Supreme Court unanimously affirmed his conviction without opinion. People v. Garcia, A.D.2d , 436 N.Y.S.2d 906 (1st Dept. 1981). The New York Court of Appeals subsequently denied him leave to appeal.

 In June of 1981, Garcia petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. He argued that he had been deprived of due process in that: (1) no reasonable jury could have convicted him based on the evidence presented at trial; (2) the trial judge impermissibly intruded into the court proceedings and thereby deprived him of a fair trial; and (3) the jury charge on intent impermissibly shifted the burden of proof to the defense, contrary to the United States Supreme Court's ruling in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).

 In an Opinion and Order dated October 9, 1981, I ruled that petitioner had failed to exhaust his state remedies with respect to the first and second claims because he had failed to present them to the state appellate courts in constitutional terms. I also found that his failure to object to the jury charge at trial barred him from raising his third claim in this Court. I therefore dismissed the petition.

 Shortly after I issued my Opinion and Order, the Court of Appeals for the Second circuit ruled that where a defendant has failed specifically to frame his claims in federal constitutional terms on direct appeal, his state remedies will nonetheless be deemed exhausted if he relied in his argument on state cases employing a constitutional analysis. Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc). *fn2" After the decision in Daye was announced, Garcia was granted a certificate of probable cause to appeal from the order dismissing his petition. He subsequently filed an appeal challenging this Court's rulings with respect to exhaustion of his first and second claims, and on the basis of the new authority, the Court of Appeals found that petitioner had effectively exhausted his state remedies on the insufficiency and interference claims. Accordingly, the court remanded these two issues for further consideration.

 The parties have once again addressed the sufficiency of the evidence adduced at Garcia's trial and the prejudice allegedly resulting from instrusions by the trial judge. For the reasons below I reject petitioner's arguments, and once again conclude that the petitioner must be dismissed.

 I. Sufficiency of the Evidence

 A defendant challenging the sufficiency of the evidence adduced at his state criminal trial is entitled to habeas corpus relief in federal court only if the court finds that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). The federal court does not perform its own independent evaluation of the evidence; rather, it must view the record in the light most favorable to the prosecution. Id. at 319. Under this standard, Garcia's insufficiency argument is clearly without merit.

 During Garcia's trial, the People of the State of New York ("the People") introduced the following evidence in their direct case: On the morning of February 13, 1977, Collins Monden and Phillip Moulton-Peddie were shot and killed in the small vestibule of an apartment building on 147th Street in Harlem. Both victims were shot with a .38 caliber revolver, and jewelry worth $4,000 was taken from Monden.

 The vestibule was located just inside the front door of the building, and was separated from the main lobby by a locked door. The superintendent testified that no one could leave or enter the building except through the front door and the vestibule.

 Sonia Tarleton, a friend of Monden's, testified that on the night of the murders, she, Monden and Moulton-Peddie had met at a night club and decided to buy cocaine. Monden approached Garcia -- who was wearing a black suit and a white shirt with an open collar -- about a possible purchase. Tarleton, Monden, Moulton-Peddie, Garcia, and Garcia's girlfriend then left the club together, and went to 147th Street. Tarleton testified that she sat in Monden's car, directly across the street from the building where the murders occurred, while the others walked up the block to make a phone call. Soon thereafter, they returned and entered the building through the front door. Tarleton testified that from this point forward she kept a constant watch on the front door of the apartment building.

 Tarleton testified that she saw Garcia's girlfriend leave the building and walk away. Two minutes later, Garcia emerged, met his girlfriend (who by this time was moving back toward the building), and walked away with her. Tarleton next saw a woman step out the front door of the building and attract the attention of a man passing on the street. At this point Tarleton left her car and entered the vestibule, where she discovered the bodies. She testified that she had not seen anyone enter the building other than Garcia, Garcia's girlfriend, and the two victims. Her car windows had been closed, and she had heard no gunshots.

 Two tenants of the building, Marie Lyons and Florence Carrington, testified that they did hear gunshots. Lyons heard two shots, went to her window, and saw a man wearing a dark suit with an open shirt collar leaving the building. Carrington heard the shots, raced downstairs, and discovered the bodies of the victims in the vestibule. She notified the superintendent, then returned to the lobby, went through the vestibule and out the front door in order to summon help. She flagged a passerby, told him to notify the police, then went to Lyons's apartment, where she learned that Lyons had already called the police. Police arrived shortly thereafter and found the bodies.

 Garcia was subsequently arrested and charged with both murders. *fn3" On April 1, 1977, he gave a New York City Police Department detective a sworn account of his whereabouts on February 13th, and at trial, the prosecution read into the record stenotyped notes of that statement. Garcia did not deny being in the vestibule with the victims, but his account of the events included a fifth person, one Raymond Ventura. Garcia said that he was about to sell drugs to Monden and Moulten-Peddie when Ventura entered the vestibule, told Garcia there would be no transaction, and ordered Garcia and his girlfriend to leave. Garcia maintained that he complied with Ventura's order and was ...

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