United States District Court, Southern District of New York
July 27, 1990
ALLEN HODGE, PETITIONER,
ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge.
MEMORANDUM AND ORDER
Petitioner Allen Hodge seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (1982). Hodge is currently a New York State
prisoner serving an indeterminate prison term of fifteen years
to life upon conviction of robbery in the first degree. The
sentence was imposed by the Supreme Court, New York County
(Fraiman, J.) after a trial by jury. On appeal, the Appellate
Division, First Department, affirmed Hodges' conviction and
sentence without opinion. The New York Court of Appeals then
denied leave to appeal.
Hodge appears to have fully exhausted his state remedies as
required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982). He now seeks this petition on the grounds
that: (1) he was denied his constitutional right to
self-representation; (2) the court failed to suppress his
lineup identification; (3) police testimony improperly
bolstered the prosecution case; (4) he was precluded from
exercising his right to appear and testify before the grand
jury; (5) the prosecutor threatened his alibi witness; (6) the
court precluded Hodge from contesting the constitutionality of
his prior convictions; (7) ineffective assistance of counsel
and (8) the court improperly instructed the jury on (a) the
intent element of Robbery in the First Degree and the
instruction that the People were not required to prove that the
gun Hodge displayed was real; (b) Hodge's alibi defense; and
(c) "interested witnesses."
I deal in this Memorandum and Order with each of Hodge's
claims in detail in the hope that this will be the end of his
At 10:30 p.m. on February 10, 1983, Hodge robbed Rafael
Zorrilla, a gypsy cab driver, at gunpoint and stole Zorrilla's
taxicab and other of Zorilla's personal property. On February
11, 1983, Hodge was arrested.*fn1
At the lineup conducted on March 25, 1983, Zorrilla identified
Hodge as the robber.
Hodge was indicted by a grand jury for Robbery in the First
Degree on April 27, 1983. At his arraignment in New York County
on April 29, 1983, the court entered a plea of not guilty since
counsel had not yet been appointed.
Although counsel was later appointed, on June 23, 1983, the
court relieved Hodge's counsel, who requested to be relieved
and against whom Hodge had filed a complaint with the bar
association. The court stated: "You are going to end up
representing yourself, but I'm going to give you one more
attorney." Transcript ("Tr.") 2.
Subsequently, Saul Kobrick was appointed as new counsel. At
a calendar call on September 7, 1983, the following took place
before Justice Haft (who was not the trial judge):
THE DEFENDANT: Your Honor, I haven't received
none of my papers, disclosure, my indictment.
THE COURT: Your lawyer has it. That's why he's a
THE DEFENDANT: I've been asking him and the
lawyer before. I haven't received none of my
What's going on?
[DEFENSE COUNSEL]: Your Honor, just for the
record, on August 16, I sent a letter to Mr. Hodge
at the Bronx House of Detention where I indicated
I just received the papers from his former
attorney and enclosed copies of the voluntary
disclosure form, indictment and the motion that
was made on his behalf by his former —
THE DEFENDANT: I have received nothing.
THE COURT: You didn't get the papers that your
lawyer just said —
THE DEFENDANT: I have been arrested since
THE COURT: Listen to what he said.
THE DEFENDANT: That's not good enough.
THE COURT: That's all the papers that you are
going to get.
THE DEFENDANT: Just get him off my case then.
I'll represent myself.
PROSECUTOR: Your Honor, A.D.A. Consuelo
Fernandez has this case.
THE COURT. Let's put it on for the same date,
THE DEFENDANT: For the record then, I don't want
THE COURT: That application is denied. If you
don't have —
THE DEFENDANT: Just railroad me. I don't care.
THE COURT: Did you or did you not receive
THE DEFENDANT: I did not receive my former
attorney's papers nor his papers. He says it. He
says what he did.
THE COURT: I should not believe what he says.
THE DEFENDANT: I don't believe what he's doing,
period. I [am] just submitting a motion. There has
been no announcement —
THE COURT: You can't submit your own motion. You
cannot submit your own motion when you're
represented by counsel. You have to give —
THE DEFENDANT: He has to adopt it.
THE COURT: But did you give it to him?
THE DEFENDANT: I handed —
THE COURT: [Defense counsel] will look at it and
if he thinks it should be submitted —
[SECOND PROSECUTOR]: Adjournment by consent?
THE COURT: No, I'm not relieving —
THE DEFENDANT: I would like to represent myself.
THE COURT: No, you've had two lawyers already.
This is the second lawyer. There is no sufficient
reason to and you're not going to have another
[DEFENSE COUNSEL]: Your Honor, just for the
record, Mr. Hodge has taken back the papers that
he wanted me to look at and has returned —
THE DEFENDANT: Well, if [he's] not going to
visit me, I don't know what I'm going to do in
thirty seconds, thirty-second representation,
hello and good-bye.
On October 25, 1983, Kobrick requested to be relieved as
Hodge's attorney. The court, however, denied this request and
continued Kobrick's representation. The court said, "[Since
Hodge] hasn't asked to represent himself, I feel for me to
require him [Hodge] to represent himself at this time would be
error. . . ." Tr. 3. On October 27, 1983, the court also denied
Kobrick's renewed request to be relieved as Hodge's attorney.
During the same calendar call, Kobrick informed the court that
on September 20, 1983, Hodge had filed a written pro se
application to act as counsel or co-counsel on his own behalf.
In the instant case, at counsel's request, the court granted
Hodge a Wade hearing to determine whether, prior to the March
25, 1983 lineup, members of the police department showed
Zorrilla any photographs of Hodge or employed any unduly
suggestive procedures. Tr. 7. Officer Edward Coughlin of the
6th Precinct testified that on the night of February 10, 1983,
Zorrilla went to the 6th Precinct and filed a complaint
alleging that he had been robbed. Coughlin showed Zorrilla some
photographs of persons who had been arrested to see if Zorrilla
could identify the perpetrator. Hodge's photograph was not
among those shown Zorrilla. Tr. 33-34. Zorrilla did not select
any individual in the photographs shown to him. Before the
lineup, Coughlin told Zorrilla that "there was a person
arrested and we were not sure if it was the same person, that
was the reason for having the lineup." Tr. 35-36, 39-40.
At the lineup, Coughlin did not recall whether he told
Zorrilla that someone had been caught in the taxicab or that
someone had been apprehended. Tr. 40. Coughlin testified
further that it was possible that he told Zorrilla a gun had
been recovered. Coughlin recalled informing Zorrilla that the
car had been found, but did not recall mentioning whether any
personal property had been recovered. Tr. 42.
Zorrilla testified that he never saw any photographs of Hodge
prior to the lineup. He spoke to Coughlin concerning the date
and time of the lineup and testified that the police told him,
"that they already have the driver, the man who robbed me, they
already have the car." Tr. 52. Therefore, Zorrilla expected
that one of the men in the lineup was the robber. Tr. 52-53.
Zorrilla identified Hodge at the lineup, Tr. 49-50, and again
at the hearing. Tr. 51.
Defense counsel moved to suppress the lineup identification
arguing that prior to the lineup, the police had informed
Zorrilla that they had arrested the person who robbed him, and
therefore, Zorrilla was in a frame of mind to pick a person
included in the lineup. The court denied the motion, finding no
undue suggestiveness. Tr. 54-55. Coughlin's statement to
Zorrilla "that they had caught the person who had
robbed him" did not taint an otherwise "perfectly valid" lineup
identification. Tr. 55. Zorrilla had been shown no photograph
of Hodge before the lineup, and there was no suggestion of any
impropriety in the conduct of the lineup itself. Tr. 55.
Hodge's trial began on March 6, 1984, immediately after the
close of the hearing.
Zorrilla testified that on February 10, 1983, at
approximately 10:30 p.m., while he was driving his cab, he
picked up a man in the vicinity of Central Park West and 106th
Street. Tr. 74. The man, who was carrying a guitar, was close
to the cab and Zorrilla said that he had a good view of him.
Tr. 77. The man requested that Zorrilla drive him to Greenwich
Village to pick up four friends and continue on to a place
where they would play music. Tr. 78, 106-11. The man requested
to sit up front and Zorrilla did not object. Tr. 78-79, 110-11.
During their conversation, which lasted about fifteen
seconds, the man stood just outside the driver's door of the
cab, close enough for Zorrilla to touch him. Tr. 77, 79-80,
108-10. Zorrilla had an unobstructed view of his face and could
see him "perfect[ly]." Tr. 78-79, 120. The man had a beard and
mustache and wore a black jacket and black hat. Tr. 96-97, 99,
122. Zorrilla could see that his hair was "kinky" and "looked
like when he go [sic] to the hair salon and they stretch it
back." Tr. 97, 126. Zorrilla also looked at the man as he
climbed into the front seat. Tr. 80, 111. However, the taxi's
overhead light was not working. Tr. 139.
During the cab ride, the passenger, who claimed he was
Jamaican, engaged in idle talk with Zorrilla. Tr. 83. However,
Zorrilla stated that he was more concerned with his driving
than with the passenger's conversation. Tr. 119. Zorrilla
testified that at times, he glanced at the passenger but, at
best, he only had a side view of him because he was paying
attention to the road. Tr. 119.
Upon arriving at the corner of Greenwich and Jane Street in
Greenwich Village, the passenger ordered Zorrilla to stop. The
passenger exited the cab, took his guitar from the back seat,
and re-entered the front seat of the cab. Zorrilla again
glanced at the passenger and saw his face as he got back into
the cab. Tr. 86. The area was illuminated by street lights. Tr.
140-41. The passenger then quickly pointed a gun at Zorrilla,
Tr. 84, 138, and robbed him, ordering Zorrilla to take off his
coat and get out of the cab. The man then drove the cab away.
Tr. 89, 94-95, 121-22.
After the incident, Zorrilla went to the 6th Precinct and
reported the robbery. He described the perpetrator to Coughlin
as a black male, six feet tall, who spoke with a Jamaican or
Haitian accent. Tr. 121-22. Zorrilla did not recall whether he
told the police that the perpetrator had a moustache or a
beard. Tr. 123. However, at trial, he testified that on the
night of the robbery, the person who robbed him had a beard and
a moustache, Tr. 97, 99, and wore a black jacket and a black
hat which covered his forehead and the back of his head.
Officer Israel Colon testified that on the night of February
11, 1983, he and his partner, Officer Madelyn Ruperto, arrested
Hodge. Hodge was seated in the driver's seat of a gypsy cab
with one foot out the door and the engine in reverse, trying
with the help of two other men to extricate the cab from a
snowbank. Tr. 160-61, 177, 180, 192. Hodge was not wearing a
coat. Tr. 172-73. The cab was Zorrilla's; it was blue-green and
bore the same license plate and vehicle identification number.
At trial, Colon identified photographs of Zorrilla's cab as
depicting the vehicle in which he arrested Hodge. Tr. 72-73,
Colon found a nine-millimeter Smith and Wesson semi-automatic
pistol stuffed between the cushions in the front seat of the
cab. Tr. 163-64, 167, 185-87. Colon also found a black hat and
a black coat on the front seat of the cab. Tr. 168-70. Zorrilla
identified the hat as the hat Hodge had worn during the
robbery, but he did not recognize the coat. Tr. 97-98, 101. In
the pockets of the coat, Colon discovered two sets of keys, one
attached to a small flashlight, Tr. 170-71, 183-84, which
identified as the keys Hodge had taken during the robbery. Tr.
92-95. In conversation with Colon, Hodge did not speak with a
Jamaican, Haitian, or Spanish accent. Tr. 181-82.
In March 1983, Coughlin called Zorrilla and asked him to view
a lineup. Tr. 215. Coughlin told Zorrilla that his car had been
found and someone had been arrested, and Zorrilla knew that the
person who had been arrested would be in the lineup. Tr.
124-25. The lineup took place on March 25, 1983. There were
five stand-ins in addition to Hodge, who was represented by
counsel and selected the number three position. Tr. 200-01,
216-17. At the lineup, Hodge had no beard and only a "slight"
moustache, and his hair was combed "straight back" in "a
processed look." Tr. 202-03, 221.
Zorrilla studied the lineup for four or five seconds, Tr.
134-35, 218, and then identified Hodge, Tr. 100, 134-35, 216,
recognizing him by his face. Tr. 125-26. Zorrilla also
identified Hodge at the trial as the man he had picked up on
Central Park West. Tr. 75.
Hodge did not take the stand. Beverly Jones testified that
she was Hodge's common law wife and had lived with him for the
past seven years. Tr. 268. At approximately 8:30 a.m. on the
morning of February 10, 1983, Hodge left their apartment to
look for a job and returned at about 6:30 p.m. Jones remembered
this day in particular because she and Hodge were celebrating
their one-year old daughter's first step. Tr. 270.
Jones testified that on that evening, Hodge and her son
wrestled and played Monopoly. After dinner, she and Hodge went
to bed at approximately 9:15 p.m. until the next morning. Jones
got up to feed her daughter between 10:00 and 10:30 p.m. When
she returned to bed at approximately 10:50 p.m., Hodge was
already asleep. Tr. 273. She testified that Hodge was still
there when she woke up the next morning. Tr. 273-74.
The next day, at approximately 8:45 a.m., Hodge left the
apartment with Jones' son, stating he was going to look for a
job. Tr. 274. Jones testified that Hodge never returned home
that evening. Jones further testified that on February 11,
1983, Hodge wore a long navy blue coat and no hat. Moreover,
Jones testified that Hodge mostly owned long sport coats and
some light-colored wide-brimmed hats. Tr. 283-84.
Jones further testified that on February 10 and 11, 1983,
Hodge had an afro, a moustache, and a little goatee. Tr. 289.
However, since the time of his arrest, he had shaved off his
moustache and goatee, and then grew it back again. Tr. 299. She
never saw Hodge with a guitar and he never mentioned that he
performed with other individuals. Tr. 289-90. She testified
that Hodge had worked at the San Carlos Hotel, but not while he
was living with her, and that he never left for work from her
apartment. Tr. 293-95.
The court instructed the jury about how to weigh the witness'
testimony. The court gave the following alibi charge:
Now, this defense is sometimes referred to as an
alibi defense. Alibi is a latin word which means
elsewhere and in law it means a defense interposed
by a defendant in which he contends at the time in
question he was at some other place than where the
crime was committed.
Now, as I said, Miss Jones testified that during
the entire night of February 10th the defendant
was at home with her on 118th Street. Now, if the
evidence as to the alibi raises a reasonable doubt
in your mind as to whether the person who robbed
Mr. Zorrilla is the defendant, then the defendant
is entitled to the benefit of that doubt and to
The defendant is not obligated to establish that
it was impossible, by reason of his having been
somewhere else, for him to have committed the
crime charged. If you accept the testimony of the
alibi witness but still conclude that it may have
been possible for the defendant to have committed
the crime charged, it is
still for you to determine whether he availed
himself of that possibility.
Now, if the proof as to alibi, when taken into
consideration with all the other evidence in the
case, raises a reasonable doubt as to the
defendant's guilt, he is entitled as I have
indicated to an acquittal.
However, if you are satisfied beyond a reasonable
doubt that the defendant was in the company of Mr.
Zorrilla at the time of the robbery on February
10, then you must determine whether he is guilty
of the crime charged in the indictment, that is
whether each of the elements of the crime of
robbery in the first degree have been satisfied.
Verdict and Sentencing
Hodge was found guilty of Robbery in the First Degree. Tr.
385-86. The prosecutor informed the court that Hodge had been
adjudicated a persistent violent felony offender at a hearing
held on December 6, 1983, before Judge Grey of Supreme Court,
Bronx County. Tr. 389. Prior to the sentencing hearing, the
prosecutor submitted a certified copy of that transcript. The
trial court relied on the findings made by Judge Grey and
sentenced Hodge on April 11, 1984, to a term of imprisonment of
15 years to life to run consecutively to his Bronx sentence,
which he was then currently serving. Sentence Hearing ("S.")
35-36. The court acknowledged that it did not follow the
prosecutor's recommendation of imposing concurrent sentences.
Hodge, through appointed appellate counsel Joel B. Atlas,
appealed his conviction to the New York State Supreme Court,
Appellate Division, First Department. He argued, first, that
his conviction should be reversed because he had been denied
his rights to testify before the grand jury and to represent
himself at trial. Hodge also argued that the court had
improperly admitted Zorrilla's lineup identification as well as
police testimony about the lineup which "bolstered" Zorrilla's
identification. Further, Hodge maintained that the prosecutor
deprived him of a fair trial by intimidating his alibi witness,
and that the court had erred in charging the jury with respect
to interested witnesses, the intent element of Robbery in the
First Degree, the People's obligation to establish that the
pistol was real, and Hodge's alibi defense. Finally, Hodge
contended that he had been improperly deprived of an
opportunity to contest his status as a persistent violent
felony offender. Brief for Defendant-Appellant, Exh. 2 at
15-32; Appellant's Supplemental Brief, Exh. 3 at 13-15.
On February 3, 1987, the Appellate Division affirmed Hodge's
conviction unanimously and without opinion. On February 20,
1987, Hodge moved pro se for reargument and reconsideration of
his appeal, alleging for the first time that he had been
deprived of effective assistance of counsel at the trial.
Notice of Motion and Affidavit, Exh. 6. On May 5, 1987, the
Appellate Division summarily denied reconsideration. Exh. 7.
Hodge sought leave to appeal to the New York Court of
Appeals, arguing by counsel that the trial court had improperly
rejected his request to represent himself. Atlas Letter,
February 25, 1987, Exh. 9. In a pro se supplemental
application, Hodge again asserted that he had been deprived of
effective assistance of counsel in the trial court. Notice of
Application for Leave to Appeal, Exh. 10. On April 1, 1987,
Hodge's leave application was denied by the Court of Appeals.
I. Hodge's Request to Proceed Pro Se
Hodge first claims that he was deprived of his constitutional
right to represent himself. He alleges that his applications to
proceed pro se were timely, unequivocal, and without any
evidence of "gamesmanship."
The Constitution guarantees a criminal defendant the right to
proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1975). Although the Sixth and Fourteenth
Amendments guarantee the right to effective assistance
of counsel, the Constitution does not force a lawyer upon a
defendant. Id. at 815, 95 S.Ct. at 2531. Indeed, denial of the
right to proceed pro se, once asserted, requires the automatic
reversal of a criminal conviction and is not subject to
harmless error analysis. Johnstone v. Kelly, 808 F.2d 214, 218
(2d Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96
L.Ed.2d 699 (1987).
Because an accused relinquishes many of the traditional
benefits associated with the right to counsel when he decides
to represent himself, he must declare his desire to proceed
pro se "clearly and unequivocally." Faretta, 422 U.S. at 835,
95 S.Ct. at 2541. In addition, the accused must knowingly and
intelligently waive his right to counsel, so that the record
will establish that "'he knows what he is doing and his choice
is made with eyes open.'" Id. at 835, 95 S.Ct. at 2541 (quoting
Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236,
242, 87 L.Ed. 268 (1942)). "In other words, a trial judge must
determine whether a defendant genuinely means what he says."
Wiesner v. Abrams, 726 F. Supp. 912, 919 (S.D.N.Y.1989). In
all federal courts construe the Constitution to
require a defendant to effectively waive his right
to counsel before being granted the right to
self-representation. While the practice varies as
to the form of warnings and waiver language, there
is no question that actions and words sufficient
to demonstrate a knowing and intelligent waiver of
the right to counsel are deemed essential.
Tuitt v. Fair, 822 F.2d 166, 176 (1st Cir.1987), cert. denied,
484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987).
Indeed, unlike other constitutional rights, "the right to be
one's own counsel can easily be overlooked or waived if a
defendant does not properly invoke the right or inadvertently
waives it through some procedural misstep." Dorman v.
Wainwright, 798 F.2d 1358, 1365-66 (11th Cir.1986), cert.
denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987).
Considering the "strong presumption against waiver of the right
to counsel, such a stringent standard for judging the adequacy
of an assertion of the right of self-representation, involving
as it does a waiver of the right to counsel, is entirely
appropriate." United States v. Weisz, 718 F.2d 413, 425-26
(D.C. Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305,
79 L.Ed.2d 704 (1984).
Similarly, under New York law, a defendant in a criminal case
may invoke the right to defend pro se provided: "(1) the
request is unequivocal and timely asserted, (2) there has been
a knowing and intelligent waiver of the right to counsel, and
(3) the defendant has not engaged in conduct which would
prevent the fair and orderly exposition of the issues."
People v. McIntyre, 36 N.Y.2d 10, 324 N.E.2d 322, 327, 364
N YS.2d 837, 844 (1974) (noting that defendant's right to
proceed pro se is not absolute).
Initially confining this inquiry to the character of the
assertion itself, and not subsequent developments, I find that
Hodge's request to proceed pro se was not unambiguously stated.
Hodge relies primarily on his statements at a calendar
appearance before Justice Haft on September 7, 1983, six months
before the trial. In context, Hodge's statements could
reasonably be interpreted, and apparently were interpreted by
the judge, to be merely expressions of annoyance and
frustration with counsel's purported failure to transmit the
papers in the case. After this outburst, Hodge never again
indicated that he wished to represent himself. Rather, on
September 30, 1983, he filed a written motion "to act as
co-counsel" at his trial, with an affidavit declaring that he
would "be represented at said trial by [a] practicing attorney"
and stating his "intention to fully cooperate with this
attorney." Exh. 12.*fn3
Subsequently, on October 25, 1984, in a colloquy in Hodge's
absence, Kobrick moved to be relieved as counsel because of
"difficulties" and "hostility" he experienced "communicating
with" Hodge. Justice Haft rejected that application as a "ploy
and a delaying tactic," stating:
There is no other recourse I have, unless the
defendant has [sic — asks?] to represent himself.
He hasn't asked to represent himself. I feel for me
to require him to represent himself at this time
would be error, therefore, without reason I am
going to continue your representation.
If the defendant chooses to simply rely upon you
as an advisor and wants to try the case himself,
that will be a matter for the trial justice to
determine. . . .
It is evident from this exchange that Hodge's purported
attempt to waive his right to counsel and assume his own
defense was not asserted clearly and unequivocally before
Justice Haft, who apparently would have entertained a request
by Hodge to proceed pro se if Hodge so requested. I do not find
it unusual for a defendant particularly when incarcerated, to
become disenchanted with counsel, appointed or otherwise, and
when a request for judicial action is rejected, angrily declare
that he'll then represent himself. Nor do I find it surprising
that Justice Haft did not interpret Hodge's fit of pique to be
a genuine, serious assertion of his right of
self-representation and concomitant waiver of right to counsel.
See People v. Payton, 45 N.Y.2d 300, 408 N.Y.S.2d 395, 402,
380 N.E.2d 224, 231 (1980), rev'd on other grounds, 445 U.S. 573,
100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). (defendant's statements
as to proceeding pro se were associated with reference to
discharging his assigned attorney and did not evince an "actual
fixed intention and desire" to self-representation).
Moreover, considering the context of Hodge's purported
assertion of the right to proceed pro se, the trial judge need
not have immediately assumed that Hodge's frustration with his
counsel constituted a clear and unequivocal expression of
Hoge's right to self-representation. Because the Supreme Court
has enjoined courts to "indulge in every reasonable presumption
against wavier" of the right to counsel, Brewer v. Williams,
430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977),
reh'g denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240
(1977), a court "should not quickly infer that a defendant
unskilled in the law has waived counsel and has opted to
conduct his own defense." Brown v. Wainwright, 665 F.2d 607,
610 (5th Cir.1982); see also United States v. Smith,
778 F.2d 925 (2d Cir.1985) (waiver of the right to counsel under the
Sixth Amendment is to be measured by stricter standards than
similar waivers under the Fifth Amendment).
The instant circumstances are unlike those in
Faretta, where the Supreme Court found that "weeks before
trial, Faretta clearly and unequivocally declared to the trial
judge that he wanted to represent himself and did not want
counsel. The record affirmatively shows that Faretta was
literate, competent, and understanding, and that he was
voluntarily exercising his informed free will." 422 U.S. at
835, 95 S.Ct. at 2541. Cf. Dorman, 798 F.2d at 1367 (wish to
proceed pro se "rings out loud and clear" from the record). Nor
is this a situation where the trial judge denied a request to
proceed pro se on the ground that the defendant "lacked the
'requisite education, background, training or experience.'"
Johnstone, 808 F.2d at 216.*fn4
When, as here, a trial judge is faced with a difficult
situation that developed during the pre-trial stage of the
prosecution and culminates in a defendant's request to
represent himself, there is a thin line between error in
failing to recognize a proper assertion of the right to
self-representation and error in sustaining an improper waiver
of the right to representation by counsel. Indeed, the
opportunity for defendants to invite error of constitutional
proportions is vast.*fn5 On the record before me, I cannot say
that it was unreasonable for the trial judge to fail to
construe Hodge's outburst as an assertion of one constitutional
right and concomitant waiver of another. When the right to
counsel and the right to proceed pro se collide, it is
reasonable to favor the right to counsel over the right to
self-representation in that the former attaches automatically
and has to be affirmatively waived to be lost whereas the
latter does not attach until it is asserted. Brown, 665 F.2d at
610; Tuitt, 822 F.2d at 174; United States v. Weisz,
718 F.2d 413. The consequences of being deprived of counsel are far more
serious than those of not being allowed to proceed
uncounselled. Tuitt, 822 F.2d at 174.
Moreover, even if Hodge's conduct could be construed as
constituting an assertion of the Faretta right, subsequent
occurrences formed the basis of a waiver of the right. Hodge
did not persist in his desire to appear pro se and it was not
reasserted unambiguously before Justice Fraiman at trial.
Unlike the right to counsel, the right to self-representation
can be waived by failure to timely assert it, or by subsequent
conduct giving the appearance of uncertainty. See Brown, 665
F.2d at 611 (right may be waived through defendant's subsequent
conduct indicating he is vacillating on the issue or has
abandoned his request altogether). In Brown, for example,
although the defendant notified the court prior to trial that
he preferred to represent himself, he later waived his right to
self-representation by permitting appointed counsel to conduct
his defense and by not asserting a desire to represent himself
until late in the trial. Indeed, a court need not conduct a
hearing or otherwise confront the defendant about his desire to
proceed pro se if by conduct subsequent to the invocation of
his right the defendant appears to be vacillating on his
decision. Id. at 612; see also Weisz, 718 F.2d at 425-26
(defendant's request to represent himself with assigned counsel
or stand-by counsel other than his currently assigned counsel
properly interpreted by court as a request for substitution of
It seems clear on the record that Hodge abandoned his
request; he made it only once, during an angry outburst, and
did not refer to it again. Cf. Dorman, 798 F.2d at 1367 (no
reasonable person could deny that defendant wanted to proceed
pro se where he cited Faretta in several written request to
trial judge and began civil proceedings against public defender
in order to create conflict of interest and allow defendant to
defend himself). This claim is therefore dismissed.
II. Procedural Bar
At the outset, the state claims that Hodge is procedurally
barred from raising the following claims: (1) that Officer
Coughlin's trial testimony about the lineup improperly
bolstered Zorrilla's identification; (2) that the prosecutor
unconstitutionally intimidated Hodge's alibi witness; and (3)
that the charge to the jury was improper regarding the intent
element of robbery in the first degree, Hodge's alibi defense,
and the interested witness charge. Pursuant to Harris v. Reed,
489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), a
procedural default in the state court does not bar
consideration of a federal habeas claim if the state appellate
court denying relief of the claim does not plainly state that
review was barred on procedural grounds. The Second Circuit has
stated that the Harris rule must be adhered to in reviewing all
habeas petitions that come to federal court
after that decision. Peterson v. Scully, 896 F.2d 661 (2d
Cir.1990) (Harris did not establish a "new rule" of
constitutionally required procedure), cert. denied, ___ U.S.
___, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). Here, the
Appellate Division affirmed Hodge's conviction without opinion.
As such, these claims will be considered on the merits.
III. Jury Instructions
Hodge claims that the trial court improperly charged the jury
in several respects.
A. The alibi charge
Hodge contends that the state court's alibi instruction
violated his right to a fair trial because it diluted the
government's burden of disproving the alibi defense beyond a
reasonable doubt. Specifically, Hodge claims that the court's
alibi charge impermissibly suggested to the jury that Hodge had
the burden of proving the truth of his alibi defense. He
further claims that the trial judge did not tell the jury that
it was the People's burden to disprove Hodge's alibi beyond a
Hodge points to the portion of the trial court's alibi
instructions that charged: "If the evidence as to the alibi
defense raises a reasonable doubt in your mind as to whether
the person who robbed Mr. Zorrilla is [Hodge], then [Hodge] is
entitled to the benefit of that doubt and to acquittal." Tr.
372. The court further charged:
If the proof as to alibi when taken into
consideration with all the other evidence in the
case, raises a reasonable doubt as to [Hodge's]
guilt, he is entitled as I have indicated to an
acquittal . . . However, if you are satisfied
beyond a reasonable doubt that [Hodge] was in the
company of Mr. Zorrilla at the time of the robbery
on February 10, then you must determine whether he
is guilty of the crime charged in the indictment,
that is, whether each of the elements of the crime
of robbery in the first degree have been
The question on federal habeas review is not
whether the instructions were undesirable,
erroneous, or even universally condemned, but
whether the instructions by themselves so affected
the entire trial that the resulting conviction was
violative of due process. Wright v. Smith, 569 F.2d 1188, 1191
(2d Cir.1978). The court must inquire whether the jury could
reasonably have failed to understand, after hearing the trial
judge's instructions as a whole, that the People bore the
burden of disproving Hodge's alibi beyond a reasonable doubt.
Simmons v. Dalsheim, 543 F. Supp. 729, 737-38 (S.D.N.Y.1982) (a
state may not, consistent with due process, impose on a
defendant any burden of persuasion with respect to an alibi
defense), aff'd, 702 F.2d 423 (2d Cir.1983).
The alibi charge at issue here, considered in the
context of the entire charge, did not shift to Hodge
the burden of proving the alibi defense. Before
reading the alibi instructions, the trial judge
clearly charged the jury on the People's burden of
proof. Tr. 367. Later, after the judge explained the
principles relevant to the jury's evaluation of
Zorrilla's identification, he charged the jury that
"if after analyzing all the credible evidence in the
case you come to the conclusion that the People have
convinced you beyond a reasonable doubt that Mr.
Zorrilla has accurately and correctly identified the
defendant as the person who robbed him" they might
accept Zorrilla's identification and give it what
weight they saw fit. Tr. 371. Thus, it is unlikely
that a juror hearing these instructions could fail
to realize that the People bore the burden of
proving that Hodge was the robber, which
necessitated proving that Hodge was at the scene of
the robbery and not at the location specified in his
The instructions did not imply that the alibi
evidence must be "true" or must be "believed" by the
jury before it could serve
as the basis for a reasonable doubt, the language
criticized as burden-shifting in Simmons. Rather, the jury was
charged to acquit if the alibi evidence, considered together
with the other evidence in the case, "raises a reasonable doubt
in your mind as to whether the person who robbed Mr. Zorrilla
is the defendant." The jurors were instructed not even to
consider the elements of robbery unless "satisfied beyond a
reasonable doubt that the defendant was in the company of Mr.
Zorrilla at the time of the robbery." As in Wright, the trial
court made numerous references here to the People's burden of
proof. While the charge did intimate that the evidence could
"raise" a reasonable doubt of Hodge's guilt, that alone does
not warrant habeas relief in light of the charge in its
entirety. Compare Simmons, 543 F. Supp. at 739 (improper to
suggest that alibi can prevail only if it "raises" a reasonable
doubt) with Wright, 569 F.2d at 1188 n. 6 (proper to instruct
jury to acquit "if, after consideration of all the evidence in
the case, you have a reasonable doubt as to whether the
defendant was present at the time and place the alleged offense
Moreover, the fact that Hodge failed to submit a
proposed alibi charge and to object to the charge as
given is relevant to the assessment of the charge on
its merits. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct.
1730, 1736, 52 L.Ed.2d 203 (1977) ("It is the rare case in
which an improper instruction will justify reversal of a
criminal conviction in which no objection has been made in the
trial court."); Victory v. Bombard, 570 F.2d 66, 69 n. 2 (2d
Cir.1978) (errors in jury instructions rarely rise to
constitutional level). In contrast, in the Simmons case, upon
which Hodge heavily relies, the defense counsel had timely
objected at trial to the alibi instruction. The Simmons court
expressly distinguished its facts from cases where a petitioner
had failed to make timely objection and thus where courts
"reviewed the charge under a standard significantly less
favorable to the petitioner" than in that case. 543 F. Supp. at
Even if the court's alibi charge
unconstitutionally shifted the burden of proof to
Hodge, the instructions must be viewed as a whole to
determine whether they affected the resulting
conviction. Wright, 569 F.2d at 1191. Jury instructions that
shift to the defendant the burden of proving his alibi defense
have been held by the Second Circuit to constitute harmless
error. Id. In light of the overwhelming evidence of Hodge's
guilt, including Zorrilla's unequivocal identification of Hodge
at the lineup and in court, whatever error occurred was clearly
harmless. Moreover, Hodge's alibi was weak; it came from an
interested witness whose testimony conflicted with other
witnesses on numerous matters. Thus, Hodge's right to a fair
trial was not impinged and this claim is dismissed.
B. Interested witness charge
Hodge next claims that the court's charge with
regard to interested witnesses was misleading and
prejudicial as it was directed only at Hodge's
witness. Given the circumstances, however, it was
not unfair for the court to charge that Jones, as
Hodge's "common law wife," is "what we call an
interested witness, that is she is interested in the
outcome of the case." Tr. 365. The court instructed
the jury to apply the "same tests" in evaluating the
witnesses' credibility as they would employ in
everyday dealings, Tr. 361-62, including
consideration of "the interest or lack of interest
of any witness in the outcome of the case, the bias
or prejudice of a witness if there is any . . .
motive that the witness may have in telling anything
but the truth." Tr. 362.
Indeed, the record reveals that the court properly
addressed the possibility that Zorrilla and the
police officers were also interested witnesses, and
left the subject of the witness' possible interest
within the jury's province. The court specifically
charged that a "police officer as a witness is no
better or no worse than any other witness in the
case," and told the jury not to accept the officers'
testimony until they had "checked and tested it in
precisely the same ways as you would [that] of any
other witness." Tr. 364. The court added that the
jury should use the "same yardstick" in evaluating
the officers' credibility
as they would apply to any other witness, and not
give "greater probative value to the testimony of a
police officer merely because of his employment." As
to Zorrilla, the jury was instructed that they might
consider whether Zorrilla had "any motive to state
anything but the truth" in identifying Hodge as the
robber. Tr. 370. In light of these instructions,
Hodge's claim is baseless and is dismissed.
C. Robbery charge
Hodge next contends that the court's charge with
respect to the robbery count was defective in two
respects: (1) the court did not inform the jury that
the People had to establish the element of intent
beyond a reasonable doubt, and (2) the court erred
when it instructed the jury that the pistol
displayed did not have to be a real pistol.*fn7
Hodge does not challenge the trial court's
definition of the mental elements of robbery, but
contends that the court improperly failed to
instruct the jury that the People were required to
establish them beyond a reasonable doubt. However,
it is clear from a reading of the entire charge that
the jury was well apprised of the People's burden of
proof and that the People were required to establish
intent, and all the elements of robbery, beyond a
reasonable doubt. The court instructed the jury at
least three times, in the context of defining the
mental elements of the crime, that the jurors had to
be satisfied beyond a reasonable doubt that Hodge
"stole" Zorrilla's cab and other property, and that
he did so "forcibly." Tr. 373-74. Moreover, the
court instructed the jury several times in the
course of the charge that it was the People's burden
to establish Hodge's guilt beyond a reasonable
doubt, and that this burden extended to "each of the
elements necessary to constitute the crime charged,"
Tr. 366, 368-69; the court specifically charged that
the People's burden extended to each element of
Robbery in the First Degree. Tr. 373-75. In any
event, the evidence conclusively established both
Hodge's larceny and his use of force. This claim is
Hodge further contends that the trial judge erred
by instructing the jury that the People were not
required to prove that the pistol Hodge used in this
case was real, thereby "depriving" Hodge of the
possibility of conviction of the lesser charges of
Robbery in the Second or Third Degree. The court
charged the jury that, if they were satisfied that
Hodge had stolen the cab and other property from
you must determine whether he also displayed an
object which appeared to be a pistol during the
course of the robbery. Now, as to this element,
it's not necessary that the People prove that what
was used was actually a real pistol. It's only
necessary that the defendant displayed what
appeared to be a pistol.
Under New York Penal Law, a defendant may be convicted of
Robbery in the First Degree if, in addition to the other
elements of the crime, the People establish beyond a reasonable
doubt that he "display[ed] what appear[ed] to be a pistol."
N Y Penal Law § 160.15(4). On its face, the statute does not
require that the gun be real. A defendant may establish, as an
affirmative defense, that the object he displayed was not an
operable firearm, and thereby obtain a reduction to Robbery in
the Second Degree. However, absent evidence supporting that
affirmative defense, as here, the People are not obliged to
prove that the gun was real. It need only be established that
the object displayed could reasonably be perceived as a pistol,
and that the victim did in fact perceive it as such. See
Farrell v. Czarnetzky, 566 F.2d 381, 382 (2d Cir.1977),
cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783
(1978); People v. Baskerville, 60 N.Y.2d 374, 381,
457 N.E.2d 752, 469 N.Y.S.2d 646 (1983). Accordingly, the court's charge
was proper. Moreover, the evidence at trial made plain that
Hodge's gun was real, and Zorrilla testified that its
distinctive squared-off appearance "looked like" the gun used
in the robbery.*fn8 In any event, this is a matter purely of
state law and does not rise to constitutional dimensions. As
such, this claim is without merit and is dismissed.
IV. Line-up Identification
Hodge further contends that the trial court's failure to
suppress the lineup identification, obtained after Zorrilla was
told that the man who was found in the stolen cab would be in
the lineup, violated his due process right to a fair trial.
The state court held a limited Wade hearing to determine
whether Zorrilla had seen photographs of Hodge before the March
23, 1983 lineup and whether any unduly suggestive action was
taken prior to the lineup.*fn9
Due process protects against the admission of evidence
deriving from suggestive identification procedures. Courts must
consider whether (1) a very substantial likelihood of
irreparable "misidentification" exists; and (2) whether "the
totality of the circumstances" surrounding the identification
supports the reliability of the identification despite the
suggestive confrontation procedure. Neil v. Biggers,
409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). In
determining the likelihood of misidentification, the trial
court should consider the opportunity of the witness to view
the defendant at the time of the crime and the witness' degree
of attention, the accuracy of the witness' prior description of
the perpetrator, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between
the crime and the confrontation. Id. at 199-200, 93 S.Ct. at
Both Officer Coughlin and Zorrilla testified at the hearing.
Coughlin testified that he told Zorrilla before the lineup that
"there was a person arrested and we were not sure if it was the
same person, that was the reason for having the lineup." Tr.
35-36, 39-40. Coughlin further testified that he told Zorrilla
that the car had been found, but did not recall if he mentioned
that personal property had been recovered, and stated that he
may have told Zorrilla that the gun had been recovered. Tr. 42.
Zorrilla testified at the hearing that the police told him that
"they already have the driver, the man who robbed me", and that
he had realized in advance that the robber would appear in the
lineup. Tr. 52-53. Justice Fraiman found that, even assuming
the police had made the statement to which Zorrilla had
testified, the statement did not "taint what was otherwise a
perfectly valid lineup and identification." Tr. 55.
Plainly, Coughlin's statement to Zorrilla did not create a
substantial likelihood of irreparable misidentification. As a
threshold matter, it is implicit in the viewing of a lineup
that a suspect might appear; this knowledge alone is
insufficient to pose a substantial likelihood of
misidentification. See Brayboy v. Scully, 695 F.2d 62, 65 (2d
Cir.1982), cert. denied, 460 U.S. 1055, 103 S.Ct. 1505, 75
L.Ed.2d 934 (1983); Tavarez v. LeFevre, 649 F. Supp. 526, 531
1986). Moreover, such information does not predispose the
viewer of the lineup to select any particular person when the
lineup, as here, was otherwise proper. Sales v. Harris,
675 F.2d 532, 538 (2d Cir.1982), cert. denied, 459 U.S. 876, 103
S.Ct. 170, 74 L.Ed.2d 140 (1982).
Furthermore, the totality of the circumstances surrounding
Zorrilla's identification of Hodge strongly support its
reliability. Zorrilla had ample opportunity during the robbery
to observe the perpetrator clearly and fully at very close
range. Zorrilla's prolonged contact with the robber, and
particularly the final moments of the encounter when the robber
brandished a gun, searched Zorrilla, and removed his wallet and
coat, enabled Zorrilla to make an accurate and unequivocal
identification at the lineup six weeks later. In addition,
there was compelling corroboration for Zorrilla's
identification in Officer Colon's account of Hodge's arrest the
night after the robbery. See, e.g., United States v. Reid,
517 F.2d 953, 967 (2d Cir.1975) ("other evidence connecting a
defendant with the crime may be considered on the issue whether
there was a substantial likelihood of misidentification").
Colon found Hodge in Zorrilla's cab. Inside the cab, Colon
found a gun, which Zorrilla swore looked like the one used in
the robbery, and a hat, which Zorrilla identified as the
robber's. In addition, Hodge's jacket pocket contained two sets
of keys taken from Zorrilla.*fn10
From the record it is therefore clear that the lineup was not
unduly suggestive and Zorrilla's identification was reliable.
Accordingly, this claim is without merit and is dismissed.
V. Bolstered Testimony
Hodge claims that Coughlin's testimony about the lineup
improperly bolstered Zorrilla's identification. Specifically,
Hodge points to Coughlin's direct testimony that he had
conducted the lineup, that there had been six participants
including Hodge, that they were seated, each given numbers, and
that Hodge wore number three. Tr. 199-201. Hodge argues that
this testimony served only to confirm Zorrilla's identification
and thus improperly bolstered that identification because it
had no independent probative value. This claim does not rise to
constitutional dimensions, but I will consider the merits in
Coughlin did not "bolster" Zorrilla's identification, in the
sense of repeating it for the jury, until after Hodge's counsel
had elicited detailed testimony about the identification on
Zorrilla's cross-examination. Tr. 216. On direct, Zorrilla did
not describe the lineup, except to note that the stand-ins had
worn numbers and that Hodge had worn number three. Tr. 99-100.
Hodge's counsel cross-examined Zorrilla in detail about the
line-up and pre-lineup procedure, Tr. 124-27, 134-37, in what
can fairly be viewed as implying that the lineup had been
suggestive, thereby opening the door to responsive testimony
from the police officer in charge. Moreover, Coughlin's account
of the lineup procedure helped the jury assess the weight and
credibility of Zorrilla's identification and therefore had
relevance apart from any "bolstering" effect. This claim is
therefore without merit and is dismissed.
VI. Prosecutorial Misconduct
Hodge further claims that the prosecutor intimidated Hodge's
alibi witness, Beverly Jones. Before Jones took the stand, the
prosecutor informed the
court that Kobrick, Hodge's attorney, had been advised to
inform Jones of the consequences of perjury and that if Hodge
were convicted the District Attorney's Office would seek a
perjury indictment against Jones. Kobrick told Justice Fraiman
that the prosecutor came "storming over" as he was conferring
with Jones and "started shouting and intimidating" both Kobrick
and Jones, telling Jones, "If you testify I am going to . . .
indict you for perjury and I am going to get you in trouble."
Tr. 252, 253. The prosecutor denied that she had threatened the
witness. Tr. 254, 256. She asserted that she had addressed
Kobrick, not the witness, and she denied saying "I am going to
get you in trouble" or "I am going to indict you." Tr. 253,
Justice Fraiman stated that conviction after the trial would
by itself be an insufficient basis for charging Jones with
perjury and he reprimanded the prosecutor for saying otherwise
in her presence. Tr. 253-56. He asked Kobrick what he wanted to
do, and Kobrick replied, "In light of what's transpired, I
would like to speak to the witness and see if she is willing to
testify." Tr. 257. After a short recess, Kobrick reported that
Jones chose to testify, and she took the stand. Tr. 267. There
was no further mention of the incident.
Hodge now contends that the prosecutor's conduct obstructed
his alibi defense and deprived him of a fair trial by
intimidating Jones and impairing her ability to testify clearly
and without fear. However, the record does not indicate that
Jones' testimony was impaired in any way by the prosecutor's
actions, and Hodge does not point to any omission of fact or
misstatement made by Jones as a result of the prosecutor's
conduct. Indeed, at trial Hodge did not object or request
relief from the court on the grounds that the prosecutor had
obstructed his alibi defense or deprived him of a fair trial.
Nor did he contend at that time that Jones had testified
uncleanly, forgetfully, or contrary to the facts.
In a federal habeas corpus proceeding, "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. Wainwright, 477 U.S. 168, 106 S.Ct.
2464, 91 L.Ed.2d 144 (1986), reh'g denied, 478 U.S. 1036, 107
S.Ct. 24, 92 L.Ed.2d 774 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40
L.Ed.2d 431 (1974)). Even if the prosecutor's actions in this
instance were ill advised, the trial and resulting conviction
were by no means fundamentally unfair. Cf. Mills v. Scully,
826 F.2d 1192 (2d Cir. 1987) (prosecutor's failure to correct a
witness's false testimony does not rise to the level of a
constitutional violation unless there is a reasonable
likelihood that the uncorrected testimony affected the jury's
judgment or otherwise influenced the outcome of the trial).
Hodge has not demonstrated that the prosecutor's conduct rose
to the "egregious" standard which is necessary to constitute a
due process violation. See Donnelly, 416 U.S. 637, 94 S.Ct.
1868. Accordingly this claim is dismissed.
VII. Right to Appear and Testify Before Grand Jury
Hodge did not appear before the grand jury in this case and
now claims that the prosecution's failure to allow him to do
so, as provided by N.Y.Crim. Proc.Law § 190.50(5)(a), violated
due process. Hodge further asserts that the trial court's
failure to appoint an attorney to represent him at his
arraignment on the indictment on April 29, 1983, and the
inaction of two attorneys later appointed to represent him,
prevented him from asserting his right to testify before the
grand jury, or moving to dismiss the indictment within five
days of his arraignment, constitutes denial of due process and
effective assistance of counsel.
Since Hodge did not testify at trial, there is no indication
of what testimony he may have offered that would have preempted
the Grand Jury's indictment. In addition, on the basis of the
overwhelming evidence at trial of Hodge's guilt, it is highly
unlikely that Hodge's appearance before the Grand Jury would
have made a difference in the Grand Jury's finding of probable
cause. Thus, the prosecution's failure to allow Hodge to appear
before the Grand Jury constitutes harmless error well beyond a
reasonable doubt. Moreover,
Hodge was not arrested in New York County and held for the
action of a New York County Grand Jury. Rather, he was arrested
in Bronx County and was detained there on Bronx County charges
from the night of his arrest until December 6, 1983, when he
was sentenced there. Hodge, as a "non-arrest" case, was
therefore not entitled to notice of the New York County Grand
Jury proceeding. N.Y.Crim. Proc.Law § 190.50(5)(a). Because
Hodge has shown no prejudice, no constitutional right has been
implicated. See Saldana v. New York, 850 F.2d 117, 119-21 (2d
Cir. 1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102
L.Ed.2d 968 (1989).
VIII. Ineffective Assistance of Counsel
Hodge's additional claims of ineffective assistance of
counsel are also without merit. Specifically, Hodge contends
that he was denied effective assistance of counsel because
Kobrick (1) stated at a calendar appearance that he was
"confused" about the case because a number of papers were
missing from the file; (2) failed to obtain a transcript of
arresting Officer Colon's testimony at the Bronx proceeding to
show that Colon was an "interested witness" at Hodge's New York
County trial; (3) failed to request an interested witness
charge which would not be directed solely to Hodge's alibi
witness, and failed to object to the charge actually delivered;
and (4) did not interview any witnesses or tell Hodge who would
testify at the trial.
Hodge has demonstrated neither that his counsel's
representation was so deficient as to violate the Sixth
Amendment nor that his defense was prejudiced. See Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d
864 (1984). Moreover, Hodge's claims are belied by the record
and fall below constitutional purview. Accordingly, I do not
find that counsel's purported errors were so serious as to
deprive Hodge of a fair trial.
IX. Contesting Constitutionality of Prior Convictions
On December 6, 1983, Judge Grey of the Supreme Court, Bronx
County, determined that Hodge was a persistent violent felony
offender pursuant to N.Y. Penal Law § 70.10. This finding was
based on three prior felony convictions, one in 1963 and two in
1967. Here, the trial court, relying on Judge Grey's findings,
sentenced Hodge to a term of imprisonment of 15 years to life
to run consecutive with the sentence for the Bronx County
convictions. Hodge claims that the fact that his same prior
felonies were used to adjudicate him as a persistent violent
felony offender once and then later again to enhance his
sentence upon a new conviction is fundamentally unfair and
violates due process and the double jeopardy clause of the
United States Constitution. Hodge, however, had his day in
court on the issue of his status as a persistent violent felony
offender, and there is no basis for relitigating that status
In sum, the petition for habeas corpus is in all respects
denied and the complaint dismissed. Leave to appeal in forma
pauperis is granted.