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September 2, 1986

WILLIAM SOTO, Petitioner,
EUGUENE LEFEVRE, Superintendant of Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: MOTLEY


This case is now before the court on the petition of William Soto for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254. Petitioner alleges that the New York State judgment and sentence which have placed him in respondent's custody are the result of a trial at which he was denied (1) his Fourtheenth Amendment right to be convicted only upon proof beyond a reasonable doubt, and (2) his Fourteenth Amendment right to a fundamentally fair trial and to present a defense. Petitioner is currently serving a ten to twenty year sentence for manslaughter in the first degree.

 The undisputed facts of the crime for which petitioner was convicted are as follows. On July 3, 1981, at approximately 11:00 P.M., Victor Soto was stabbed to death by two men. (Despite their identical surnames, Victor Soto and petitioner were not related). The stabbing occurred after an altercation between Victor Soto and one of the murderers, Benny Leon, at Mel's Candy Store, a numbers parlor located on 163rd Street in the Bronx. The area in front of the numbers parlor was well lit by street lamps and the light from neon signs. In the course of the altercation, the victim was stabbed by the perpetrators repeatedly in the neck and back. After this initial assault he broke free and stumbled across 163rd Street. The assailants pursued him, however, and continued the assault until their victim collapsed in a pool of blood. The perpetrators then fled.

 A witness to the incident, Franscisco Mejia, an auxilliary policeman, happened to be riding past the scene in a bus. Catching sight of the attack, he asked the driver to stop the bus at once. Mejia got off the bus in time to observe the two perpetrators as they finished their attack on Victor Soto and then fled. Mejia hailed a passing patrol car and then helped the police lift the victim into the car. Victo Soto was rushed to Lincoln Hospital where he was pronounced dead on arrival. An autopsy report filed by a deputy medical examiner and introduced into evidence at petitioner's trial confirmed the victim's death by multiple stab wounds.

 The ensuing police investigation produced a second eyewitness to the incident besides Mejia. This was Frederick Hazel, a janitor at the numbers parlor who was present when the incident occurred. Hazel testified that after the establishment's proprietor, Benny Leon ("Benny") and the victim began to quarrel, he, Hazel, stepped out for a minute to buy some liquor. As he was returning to the numbers parlor Hazel saw a tattooed man he said he recognized as petitioner approach the place and then join with Benny in attacking Victor Soto, chasing him, and then stabbing him to death. Hazel testified that he knew petitioner from around the neighborhood and referred to him as "tatoo" because of his striking body tatoos.

 During his interview with the police, Hazel identified petitioner from a group of photographs. After this positive identification, and on the strength of Hazel's eyewitness account, petitioner was arrested. At the time of his arrest, petitioner was in possession of a stainless steel folding knife. Hazel subsequently identified the knife as similar to the knives used by the assailants who killed Victor Soto.

 Another important witness in the case against petitioner was Pedro Cruz, a cab driver who had picked up Benny Leon a few hours after the murder. During the ride, Benny had boasted to Cruz about the stabbing incident and had made reference to an accomplice in future crimes named Martin. Specifically, the cab driver reported that after telling him about having just stabbed two men and maybe killing one, Benny went on to discuss his plans to kill several other people, including the wife of one of the victims because "she will send someone after me." Benny also told the cab driver that if he were caught his friend Martin would finish the job. Cruz reported to the police that as the cab drove past 163rd Street where the numbers parlor was located, Benny pointed to the pavement across from Mel's Candy Store and said, "that is where he fell."

 At the time of petitioner's trial, Benny had not yet been apprehended. Counsel for petitioner wished to introduce the cab driver's testimony about Benny's conversation, however, for the arguable exculpatory effect of Benny's mention of his cohort, Martin. Although taken literally, Benny's reference to Martin related only to their future projects, taken in the context of Benny's boast about the murder that had just taken place, argued defense counsel, a jury could reasonably infer that Martin was also Benny's accomplice in the murder of Victor Soto.

 Prior to trial the defense moved for a ruling that Cruz's hearsay testimony be admitted into evidence. Defense characterized Benny's conversation with the cabdriver as a declaration against penal interest and thus admissible under New York evidentiary rules. The trial judge ruled that the statement to Cruz was only partly admissible, however. He would allow the first half of the statement, but the portion referring to Martin, he ruled, had to be redacted as uncorroborated hearsay under New York law. Unlike the first half of the statement referring to Benny's role in Victor Soto's murder a few hours earlier, the references to Martin involved only his putative future role in helping Benny to "finish the job." Most significantly, unlike Benny's confession which was corroborated by his identification of the spot where Victor Soto had "fallen," there was no corroboration of the "Martin" portion of the statement. There was neither evidence that anyone named Martin in fact existed nor evidence to support the inference that this Martin had also participated in Victor Soto's murder. Upon learning the trial court's decision that Benny's hearsay declaration would be admissible only in a redacted version, defense counsel indicated that the statement as redacted had no value to petitioner. Accordingly, the statement was not introduced at trial in any form.

 At the trial, itself, several witnesses testified. Among these were the two eyewitnesses to the incident, Mejia and Hazel. Mejia testified that he had gotten a good look at the perpetrators as they fled but that he did not see either of the assailants in the courtroom. Hazel testified on the contrary that petitioner was the second assailant; even though he, Hazel, had had quite a bit to drink the day of the murder, and had seen the second assailant from behind only, he had recognized petitioner when he came up to the numbers parlor that night as someone he knew and also by his prominent tatoos. Although the defense argued that Hazel's testimony was incredible, the jury came back with a verdict of manslaughter in the first degree.

 Petitioner appealed his conviction to the Appellate Division, First Department, arguing that the conviction violated his due process rights under the Fourteenth Amendment because it was against the weight of the evidence in that the State had failed to establish petitioner's identity as one of Victor Soto's murderers beyond a reasonable doubt. Petitioner argued as well that the exclusion of Benny's full statement to the cab driver, which petitioner claimed was adequately reliable for admissibility and which tended to exculpate petitioner, denied him his due process right to a fair trial, including his right to present evidence in his own behalf. On appeal petitioner also challenged the trial court's limitation of cross examination and its jury instruction on identification. The Appellate Division unanimously affirmed petitioner's conviction without opinion. Leave to appeal to the New York Court of Appeals was denied by the Chief Judge of that court on September 4, 1984.

 Petitioner subsequently filed this petition for a writ of habeas corpus. In his petition he presents the same four grounds for reversal of his conviction as were presented in the state court appeals. Petitioner's lengthy brief, however, argues only the first two points of the petition: 1) denial of due process based on the alleged insufficiency of the evidence supporting his conviction; and 2) denial of due process by the court's refusal to admit into evidence Benny's allegedly exculpatory hearsay statement. Indeed, petitioner makes no mention whatsoever in his brief of the trial court's cross-examination ruling or of its jury instruction on identification. In reviewing this petition, therefore, the court now presumes that petitioner has abandoned these latter challenges to his conviction and, accordingly, will deal only with petitioner's insufficiency of the evidence challenge and his challenge to the trial court's evidentiary ruling.

 I. Weight and Sufficiency of the Evidence.

 In a challenge to a state criminal conviction brought under 28 U.S.C. Section 2254 based on an alleged insufficiency of evidence necessary to convict, a petitioner is entitled to habeas corpus relief only "if it is found that upon the record evidence adduced at the trial 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) (footnote omitted). Under this standard, a mere modicum of evidence will not suffice to support the constitutionality of a conviction. Id. at 320. Instead, the federal court reviewing the conviction must determine whether 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." Id. at 319 (emphasis in the original); see also Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

 While under Jackson v. Virginia, supra, the federal court must assess state court findings of guilt for constitutional sufficiency under the "proof beyond a reasonable doubt" standard, factual determinations made by a state trial court are nonetheless entitled to a "presumption of correctness" on review in a federal habeas proceeding. Sumner v. Mata, 455 U.S. 591, 592, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982) (per curiam). Such deference to the factual determinations of state courts is dictated by the plain language of the federal habeas statute, 28 U.S.C. Section 2254(d), and reflects a Congressional respect for the federalism concerns implicated in these collateral proceedings. See Jackson v. Virginia, supra 443 U.S. at 322-23. The "presumption of ...

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