The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons discussed below, the petition is
Petitioner and two codefendants, Luis Maldonaldo and Anderson Garcia,
were charged with the murders of Victor Martinez and Robert Toro.
According to the two-count indictment, petitioner was an accessory to the
Martinez murder and fired the shotgun that killed Toro. By a pretrial
omnibus motion dated January 20, 1981, petitioner sought a severance of
the two murder counts of the indictment. The motion to sever was denied.
Following a jury trial on January 27, 1982, petitioner and both
codefendants were convicted in New York Supreme Court, Kings County, on
two counts of murder in the second degree.
On direct appeal, petitioner's conviction was modified. Upon review of
petitioner's conviction as an accessory to the Martinez murder, the New
York Appellate Division found that circumstantial evidence was
insufficient to sustain a guilty verdict and, on that count, the
conviction was reversed. People v. Aponte, 135 A.D.2d 544, 521 N.Y.S.2d 766
(2d Dep't 1987).
Petitioner filed a motion to reargue the remaining count of his
conviction in the New York Appellate Division, but it was denied on
February 25, 1988. By order of the court dated March 11, 1988,
application for leave to appeal to the New York Court of Appeals was
denied. People v. Aponte, 71 N.Y.2d 892, 527 N.Y.S.2d 1001,
523 N.E.2d 308(1988).
Having exhausted his state remedies, petitioner now seeks a federal
writ of habeas corpus in this Court alleging: (1) improper joinder; (2)
change of the State's theory of guilt at the appellate level; (3)
prosecutorial misconduct; (4) ineffective assistance of counsel; and (5)
evidence improperly admitted at trial.
Petitioner claims that the two counts of murder were improperly
joined, depriving him of a fair trial as guaranteed by the fourteenth
The decision to grant a severance motion is entrusted to the sound
discretion of the trial court, and will be reversed on appeal only when a
defendant has suffered such substantial prejudice from a joint trial of
two or more counts as to show an abuse of discretion. Alejandro v.
Scully, 529 F. Supp. 650, 651 (S.D.N.Y. 1982). See United States v.
Werner, 620 F.2d 922 (2d Cir. 1980). Nothing in the record shows any such
abuse of trial court discretion.
According to the record, petitioner and codefendant Maldonaldo
threatened to kill Martinez during an argument over drug money. People
v. Maldonado, 126 A.D.2d 670, 671, 510 N.Y.S.2d 712, 713, (2d Dep't
1987). The following day, November 10, 1980, codefendant Garcia
approached petitioner and Maldonaldo, who were seated in a parked car
across from 136 So.2d Street in Brooklyn. Garcia then entered the
building at 136 So.2d Street with both victims, Martinez and Toro.
Shortly thereafter, Toro rushed out of the building and Garcia, armed
with a small caliber pistol, followed. Garcia and Toro entered a van and
drove away. Maldonaldo and petitioner followed in their car. Martinez was
found dead in the empty apartment. Id., 126 A.D.2d at 671-672, 510
N.Y.S.2d at 713-714.
The record further discloses that on November 11, 1980, petitioner was
sitting in the driver's seat of a car; also seated in the car were the
two codefendants. As the next victim, Toro, walked down the street and
came within six feet of the car, someone fired a gun and killed Toro. The
gunshot appeared to come from the driver's side of the car. Maldonado,
126 A.D.2d at 672, 510 N.Y.S.2d at 714.
As a matter of sound discretion, the trial judge properly denied a
motion to sever the two charges. Indeed, two distinct criminal
transactions are properly joined if evidence of one crime is material and
establishes motive with respect to another crime. Petitioner claims that
the connection between the two murder charges "was entirely too
speculative to justify the prejudicial impact created by joinder."
Petitioner's Mem. at 19. Disposing of the case, however, in a single
proceeding "conserves judicial resources, alleviates the burdens on
citizens serving as jurors, and avoids the necessity of having witnesses
reiterate testimony in a series of trials." United States v. Borelli,
435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 91 S.Ct.
963, 28 L.Ed.2d 229(1971). It is especially difficult "`to justify the
disintegration of a trial . . . in which there is a cohesion of crime
alleged, defendants charged and proof adduced.'" United States v.
Persico, 621 F. Supp. 842, 852 (S.D.N.Y. 1985) (quoting United States v.
Kahn, 381 F.2d 824, 840 (7th Cir.), cert. denied, 389 U.S. 1015, 88
S.Ct. 591, 19 L.Ed.2d 661(1967)).
To succeed on a claim for a federal writ of habeas corpus, petitioner
must show that the joint trial was so prejudicial as to actually render
petitioner's state trial fundamentally unfair and, hence, violative of due
process. Alejandro, 529 F. Supp. at 651 (citing Tribbitt v. Wainwright,
540 F.2d 840, 841 (5th Cir. 1976), cert. denied, 430 U.S. 910, 97 S.Ct.
1184, 51 L.Ed.2d 587 (1977)); Melchior v. Jago, 723 F.2d 486, 491 (6th
Cir. 1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d
542(1984). Because petitioner has not demonstrated prejudice sufficient
to show ...