United States District Court, Eastern District of New York
June 19, 1990
EVARISTO APONTE, PLAINTIFF
CHARLES J. SCULLY, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY; ROBERT ABRAMS, NEW YORK STATE ATTORNEY GENERAL; CHARLES J. HYNES, DISTRICT ATTORNEY, KINGS COUNTY, DEFENDANTS.
The opinion of the court was delivered by: McLAUGHLIN, District Judge.
MEMORANDUM AND ORDER
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.
I. IMPROPER JOINDER
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 an abuse of trial court discretion or a deprivation of due
process, the joining of the two charges cannot be the basis for a writ of
II. CHANGE OF THE STATE'S THEORY OF GUILT AT THE APPELLATE LEVEL
Petitioner claims that his constitutional right of due process was
violated when the state, on appeal, changed its theory of petitioner's
guilt regarding the Toro murder. According to Cole v. Arkansas,
333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644(1948), a change in the state's
theory of guilt at the appellate level amounts to a violation of due
process under the fourteenth amendment.
Petitioner's reliance upon Cole is misplaced. In Cole, the Supreme
Court held that defendants were denied due process when they were tried
and convicted for one offense, but the state appellate court affirmed the
convictions on the ground that the evidence established guilt of a
separate offense, one for which they were not tried. Here, by contrast,
the New York Appellate Division affirmed the petitioner's conviction for
the Toro murder, a crime for which he was tried and convicted.
Petitioner claims that, at trial, the state argued that petitioner
killed Toro to silence him about the Martinez murder and, on appeal,
argued that he murdered to protect Garcia, the murderer of Martinez. The
Court finds this to be a distinction without a difference. By murdering
Toro, petitioner silenced him about the Martinez murder; that silence
also protected Garcia. The two statements are not two different theories
III. PROSECUTORIAL MISCONDUCT
A. Prosecutor's Argument Linking Petitioner To Both Murders
Petitioner argues that he was prejudiced by the prosecutor's argument
to the jury that petitioner was guilty of the Martinez murder.
Prejudice, according to petitioner, exists because that murder conviction
was subsequently reversed by the Appellate Division. This Court has
already found the joint trial of both murder counts proper. Petitioner
now challenges the prosecutor's conduct at trial in arguing that both
murders were connected to petitioner.
The knowing use of false evidence by the government obviously denies
due process. For example, it is quite clear that a prosecutor cannot
display a pair of stained undershorts to a jury, alleging them to be
stained with blood of the victim's blood type, knowing the shorts were
stained only with paint. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17
L.Ed.2d 690(1967). The fourteenth amendment will not tolerate a state
criminal conviction obtained by the knowing use of false evidence. Id. 87
S.Ct. at 788. Petitioner has not shown that the prosecutor knew that
petitioner was not a part of the Martinez murder or knowingly used any
false evidence linking him to that murder.
Absent showing of false evidence, petitioner must show that the
comments "so infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168,
181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144(1986) (citations omitted). See
Donnelly v. DeChristoforo, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 1871, 40
L.Ed.2d 431(1974); Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986).
The factors the Court must consider include "the severity of the
misconduct; the measures adopted to cure the misconduct; and the
certainty of conviction absent the improper statements." United States
v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989,
102 S.Ct. 2269, 73 L.Ed.2d 1284(1982).
The trial record reveals no dialogue, comment or argument by the
prosecution which can be characterized as improper. Moreover, the trial
court's instructions to the jury directed them to deliberate and reach
separate verdicts on each count and not to consider the attorneys'
opening statements and summations as evidence. Tr. at 1230, 1246-50.
Considered in full context, the prosecutor's arguments linking petitioner
to both murders did not deprive him of a fair trial.
B. Prosecutor's Reference To Other Witness Testimony
Petitioner separately challenges that part of the prosecutor's
summation referring to Ralph Perez, a person interviewed by the police
after the murder. The Assistant District Attorney argued:
At the station house they talk to Ralph Perez and they
talk to him, and he says, "Listen", from the very
beginning, "Listen, I can't talk to you. They will
kill me." And they said, "Who's going to kill you?"
"No, they're going to kill me. I can't say."
Tr. at 1116.
Under the same standard announced in Darden, supra, the Court can find
no actionable misconduct. The prosecutor merely restated prior trial
testimony that, ironically, was first elicited by petitioner's attorney
on cross-examination of witness Detective Jerry Magliolo. In that
context, and in light of the trial judge's instruction that summations
are not evidence, this reference to prior witness testimony did not so
infect the trial with unfairness as to make
the resulting conviction a denial of due
process. Id. at 181.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his motion for habeas relief, petitioner also includes the now
near-obligatory charge of ineffective assistance of counsel. To establish
ineffective assistance of counsel, petitioner must satisfy the two-part
test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984). Petitioner must first show that his counsel's
performance was deficient, and, second, that the deficient performance
prejudiced the defense. Id. at 687, 104 S.Ct. at 2064.
Petitioner claims that he was denied his right to effective counsel
because his attorney did not call three prospective witnesses at trial.
First, petitioner claims that his trial attorney should have called Luz
Virella as a witness on his behalf. At a post-trial hearing on a motion
to vacate the judgment, Virella testified that petitioner dropped her off
at her apartment on the day of the Toro murder at approximately twelve
noon. Because Toro was murdered around twelve noon, petitioner claims it
was ineffective of his counsel not to call Virella as an alibi witness.
According to Virella's own testimony, her apartment was one and a half
blocks away from the scene of the shooting. Tr. at 23. Virella also had a
romantic involvement with petitioner, which undercuts her credibility.
Id. Thus, I cannot conclude that petitioner has overcome the strong
presumption that counsel's conduct fell within the wide range of
acceptable professional assistance.
Second, petitioner claims that his trial attorney should also have
called Johnny Soto as a witness. Petitioner alleges that Soto would have
given testimony exculpatory to petitioner, while tending to inculpate
another witness who testified at trial for the prosecution. Petitioner's
trial attorney, called as a witness at the post-trial hearing, recalled
that he had interviewed Soto prior to trial. The trial attorney
remembered that Soto's statement contradicted the statements of Elizabeth
Estrada, another defense witness at trial. This decision by petitioner's
trial attorney is certainly reasonable and falls within the wide range of
acceptable professional assistance.
Finally, petitioner claims that Ismael Rodriguez should have been
called as a trial witness for the defense. At the time of the trial,
however, Rodriguez was in Puerto Rico. At the same post-trial hearing,
Rodriguez admitted that he did not pay attention to the car involved in
the Toro killing. Any help from his testimony would therefore have been
minimal at best, and, I need only observe, carried the added risk of a
witness burdened with a lengthy criminal record.
Complaints of uncalled witnesses are not favored on federal habeas
review. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987);
Marler v. Blackburn, 777 F.2d 1007, 1010 (5th Cir. 1985); Murray v.
Maggio, 736 F.2d 279, 282 (5th Cir. 1984). As to all three potential
witnesses, petitioner has failed to overcome the strong presumption that
his counsel's actions were reasonable.
V. EVIDENCE IMPROPERLY ADMITTED AT TRIAL
Petitioner claims that twice during trial, evidence was improperly
admitted by the trial judge. First, petitioner claims that a portion of
testimony by Lisa Rizzo, a state witness, was inadmissible hearsay.
Second, petitioner argues that a portion of Detective Jerry Magliolo's
testimony was so prejudicial that the trial court should not have allowed
it into evidence.
To be successful on these claims, petitioner bears a heavy burden; mere
evidentiary errors generally do not rise to constitutional magnitude.
Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987); see Underwood v.
Kelly, 692 F. Supp. 146, 150 (E.D.N.Y. 1988), aff'd without opinion,
875 F.2d 857 (2d Cir. 1989), cert. denied, ___U.S. ___, 110 S.Ct. 117,
107 L.Ed.2d 79 (1989). If evidence is erroneously admitted, the issue
becomes "whether the erroneously admitted evidence, viewed objectively in
the light of the entire record before the jury, was sufficiently material
provide the basis for a conviction or to remove a reasonable doubt that
would have existed on the record without it." Collins v. Scully,
755 F.2d 16, 19 (2d Cir. 1985); see Carroll v. Hoke, 695 F. Supp. 1435,
1440 (E.D.N.Y.), aff'd, 880 F.2d 1318 (2d Cir. 1989); In short, the
evidence must have been crucial, critical or highly significant.
Collins, 755 F.2d at 19 (citing Nettles v. Wainwright, 677 F.2d 410,
414-15 (5th Cir. 1982)).
Even assuming the disputed testimony was erroneously admitted into
evidence, the Court cannot conclude that the error was sufficiently
substantial to warrant a writ of habeas corpus.
A. Improper Admission of Hearsay
Concerning the disputed hearsay testimony of Lisa Rizzo, she testified
that another person, Jeanette Muniz, told her that the man who brushed
past Rizzo on a staircase at 136 So.2d Street on November 10 — just
before Rizzo discovered the body of Martinez — was Toro, the man
who was shot the following day.
Petitioner argues that this inadmissible testimony was damaging and
prejudicial because it links the Martinez and Toro murders together. None
of the three defense attorneys made a contemporaneous objection. Absent
any objection, the trial court had no opportunity to rule on
admissibility. Applying the two-fold Collins standard, the Court does not
find that the alleged hearsay was so critical as to amount to a
constitutional deprivation. The court does not find that testimony to
provide a material basis for conviction or to remove an otherwise existing
reasonable doubt from the record. Id. at 19.
Petitioner separately argues that admitting Rizzo's hearsay testimony
violated the Confrontation Clause of the sixth amendment. The
Confrontation Clause affords two essential protections to the criminal
defendant, namely, the right to face physically those who testify against
him and the right to conduct cross-examination. Pennsylvania v. Ritchie,
480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40(1987); see Pointer v.
Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923(1965).
Muniz, the alleged declarant, was also a witness at trial; and she denied
making the statements to Rizzo. Because petitioner had the opportunity to
confront Muniz and question her about the alleged hearsay statement, no
violation of the Confrontation Clause arose. US. v. Owens, 484 U.S. 554,
108 S.Ct. 838, 98 L.Ed.2d 951(1988) (no violation of the Confrontation
Clause if hearsay declarant was present at trial, takes an oath, is
subject to cross-examination, and the jury has an opportunity to observe
B. Prejudicial Testimony Erroneously Admitted
Petitioner claims that be was wrongly prejudiced by testimony elicited
from Detective Jerry Magliolo. Apparently, Detective Magliolo
interrogated a man named Ralph Perez concerning the Toro murder. Magliolo
testified that, at the beginning of the interrogation, Perez did not say
anything except that "he was frightened to death, that [the killers] were
bad people and he did not want to get involved." Tr. at 573. In applying
Collins, this Court, again, cannot label the admitted evidence
sufficiently substantial to have denied petitioner a fair trial. It was
petitioner's own attorney on cross-examination of Magliolo who first
elicited the testimony in question. Petitioner cannot now claim that he
was prejudiced by the prosecutor's re-direct on the same subject.
On review of the record, such testimony, "viewed objectively in light
of the entire record before the jury," did not provide a material basis
for conviction. Moreover, Magliolo's testimony did not remove a
reasonable doubt that would have otherwise existed on the record.
Collins, 755 F.2d at 19.
Accordingly, the petition for a writ of habeas corpus must be, and
hereby is, denied.