United States District Court, Southern District of New York
October 4, 1990
MICHAEL MARTIN, PETITIONER,
CHARLES J. SCULLY, RESPONDENT.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION
This Court has received and reviewed the report and
recommendation issued by Magistrate Sharon E. Grubin on September
12, 1990 in the above-captioned action. No timely objections to
the Report and Recommendation have been received from the parties
in this action. The Court has considered the report and agrees
with its recommendations. Accordingly, it is hereby
ORDERED that the Report and Recommendation issued
by Magistrate Grubin on September 12, 1990 is
accepted in accordance with 28 U.S.C. § 636(b).
Accordingly, it is further
ORDERED that for the reasons outlined in Magistrate
Grubin's Report and Recommendation the petition for
habeas corpus is denied.
REPORT AND RECOMMENDATION TO THE HONORABLE ROBERT P. PATTERSON,
Petitioner pro se seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his March 28, 1985 conviction after
a jury trial in the New York State Supreme Court, Bronx County,
of murder in the second degree (N.Y.Penal Law § 125.25(3) (felony
murder)). He was sentenced to an indeterminate prison term of
twenty years to life. The Appellate Division, First Department,
affirmed the conviction without opinion on June 17, 1986, People
v. Martin, 121 A.D.2d 849, 503 N.Y.S.2d 470, and the New York
Court of Appeals denied leave to appeal on September 30, 1986,
68 N.Y.2d 815, 507 N.Y.S.2d 1032, 499 N.E.2d 881. The petition
pleads the following two issues which were also presented in the
Appellate Division brief: (1) whether the evidence was sufficient
to prove petitioner's guilt beyond a reasonable doubt; and (2)
whether certain comments of the prosecutor during summation
denied petitioner a fair trial.
Petitioner's conviction arises from the death of Pasquale
Ferrara, who developed peritonitis following surgery for stab
wounds to the arm, leg and abdomen. The police discovered his
body in an automobile in the middle of the intersection of
Kingsbridge Road and Jerome Avenue in the Bronx on the morning of
January 1, 1984. He was taken to Jacobi Hospital where he died on
January 8, 1984. Construing the evidence at trial in the light
most favorable to the state, see, e.g., Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied,
488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v.
Warden, 795 F.2d 5, 6 (2d Cir. 1986), the following was
The victim's father, Tony Ferrara, testified that on December
31, 1983 his son told him that he was going to a New Year's Eve
party with co-workers. When he left the family's Bronx residence
to go to the party, he was driving his Cadillac automobile and
was wearing his father's diamond-studded wristwatch, a bracelet
and his mother's chain necklace.
Co-worker John Carbone also attended the party, which was held
at the Chateau Pelham in the Bronx. Ferrara was at the party when
Carbone and his wife arrived and they sat at the same table.
Carbone also testified that Ferrara was wearing a diamond watch,
a bracelet and a rope chain necklace. At about 2:30 a.m. they
left the party. Both men were "high" from alcohol, but not
intoxicated. In the restaurant parking lot Ferrara mentioned that
he was going downtown and then walked toward his automobile.
Apparently Ferrara then drove to Zippers, a bar in New
Rochelle. Robert Starke, a bartender at Zippers, testified that
the bar was one frequented by homosexuals and that Ferrara
entered some time between 2:30 and 3:00 a.m. He was wearing a
black suit jacket with a red feather in the lapel, dark pants, a
necklace and a wristwatch. He ordered two bottles of champagne
which he shared with other patrons and paid for with money from a
large roll of bills he took out of his pocket. Starke testified
that he talked with Ferrara until 4:30 a.m. at which time Ferrara
said he was heading downtown.
At about 7:50 a.m. the same morning, while on routine motor
patrol, two police officers, Christopher Arborn and Desmond
Jones, discovered Ferrara bleeding and slumped over the steering
wheel of his car. The car, with its passenger-side tires slashed,
was stopped at a traffic light across the street from the men's
shelter located in the West Kingsbridge Armory. The gear shift
was in drive and the motor was running. Blood stains were
noticeable inside and outside the car. Ferrara was wearing an
unbuttoned dress shirt and dark trousers, opened in a manner
revealing his undergarments. He was not wearing a wristwatch or
any jewelry. A dark suit jacket with a feather in the lapel and a
wallet were recovered from the floor in the rear of the car on
the passenger side. The officers called for emergency assistance,
and Officer Jones testified that before the ambulance arrived,
Ferrara identified himself and told Jones that in the bar's
parking lot a short, male Hispanic with dark hair and a Van Dyke
beard had forced him at knifepoint to enter his car and drive to
Police officers Richard Denaro and John Mendicino arrived at
the scene in response to a radio call. They described the scene
similarly. Specifically, Denaro testified that Ferrara's white
dress shirt was unbuttoned down to the navel or lower and that
his pants were down almost to his knees. He also stated that
there was blood all over the back seat of the car, the front
seat, the steering wheel and the outside of the rear door. Jones
gave Ferrara's wallet and car keys to Denaro. Denaro and
Mendicino then followed the ambulance to the emergency room of
Jacobi Hospital where they spoke with Ferrara. He told them that
an Hispanic male had put him in the back seat, made him take off
his clothes and stabbed him.*fn1
Witness Alsears Young, a resident at the Kingsbridge Armory
men's shelter, testified that at the shelter on the evening of
December 31, 1983 at some time between 8:00 and midnight, he
overheard a conversation between petitioner and Robert Irizarry
who also lived at the shelter.*fn2 Petitioner said he "was going
to get himself a victim;" in response, Irizarry said,
"[s]omething like, `not starting the new year's off broke without
no money.'" Tr. 340. At some point petitioner and Irizarry left,
and Young next saw them in the morning (see below).
Between 7:30 and 8:00 a.m. on January 1st witness Ciji Adams
was inside the men's shelter visiting friends and met petitioner,
whom he knew, as petitioner was entering the building. Just a few
minutes previously, Adams had heard a gunshot from outside the
armory. Petitioner and Adams had a conversation during which
petitioner gave Adams $20 in repayment of a loan made three
months previously and $20 interest. Adams testified that
petitioner, who appeared intoxicated and whose eyes were
bloodshot, gave him the $40 from a roll of money he took from his
pocket. The money was rolled up with two rubber bands. Adams
asked where petitioner had obtained the money, and petitioner
responded that he and a friend just "took off" an Italian man
they had met up by Bronxwood Avenue in the Bronx. Adams further
testified that petitioner had stated that "where they took him
off" was "right down the block." Tr. 143. Petitioner also
described to Adams his accomplice in the deed as a "Puerto Rican
guy" with "a tail in the back of his head." Tr. 148.
When Adams expressed disbelief at petitioner's admission to
this crime, petitioner told him to go outside. Once there Adams
saw an ambulance, a paramedic and two patrol cars but did not go
over to them to find out what had happened. Prior to Adams' going
outside, petitioner handed him a gun, which Adams identified was
a .32 caliber, from the left side of the waistband of his pants.
Adams testified that he smelled gun powder. He opened the barrel,
and saw that five of the chambers contained shells and one
chamber contained the casing but no bullet.
About seven minutes later, Adams, who had resided at the armory
previously, returned to the inside of the armory. He testified
that two police officers walked in and that petitioner went to
hide in a dark area in the back of the armory. The officers
turned on a light but did not search the armory. Adams did not
see petitioner after the officers left.
Alsears Young testified that later that same morning, some time
between 9:00 and 10:30, he saw petitioner and Irizarry enter the
armory. Petitioner asked if Young knew a place where he could get
some money for jewelry, and he specifically mentioned a chain.
Young, who had some idea of what had happened, said he told
petitioner that he did not want to be bothered with that type of
thing. Young also testified that he overheard Irizarry tell
petitioner that they should not have "done something close to the
armory." Young's direct examination continued as follows:
Q Well, what did Irrizary say that he did?
A About some dude getting bad, him stabbing
Q Did Martin say anything?
A He grabbed the dude. He yoked the dude.
Tr. 344.*fn3 Young further related that petitioner stated that
he was not eating at the armory on January 1st because he had
money and that Irizarry stated, "He should have kept the car. He
should have kept the car. Could have got some money for it for
parts." Tr. 347.
Following interviews with Ferrara, Adams, Starke, Young and
others, Detective Edward Blake, who was conducting the
investigation of the crime, had the opportunity about seven weeks
later to interview petitioner.*fn4 After being given Miranda
warnings, petitioner responded to Blake's questioning about what
he had done on New Year's as follows. Petitioner told Blake that
he had left the armory at 10:00 p.m. to go to the Times Square
area to watch the ball drop. Then he went to Bryant Park where he
smoked marijuana and drank beer that he had bought. Petitioner
next went to 950 Grand Concourse in the Bronx, his brother's
apartment, where he was staying, but he found an eviction notice
there so he took his clothes and went to his godmother's
apartment on East 89th Street in Manhattan, arriving about 5:30
a.m. and slept there until 6:00 p.m. When petitioner finished his
description of his night, Blake left the room and telephoned the
godmother and after speaking with her confronted petitioner with
what the godmother had told him.*fn5 Petitioner then admitted
that he had just lied and told a different story, stating that he
had not gone to his godmother's but had gone back to the armory
at 8:30 a.m. on January 1st by subway. He had observed an
ambulance, a police car and the arrival of another police car
when he arrived. He admitted that he was earlier carrying a .22
caliber revolver for protection on 42nd Street; however, he had
left the gun, which was not operational because the barrel was
plugged, at his brother's apartment at 950 Grand Concourse. He
also stated that he had hid in the armory on January 1st when the
police came because he thought the director of the armory was
going to have him arrested for trespassing. Blake continued with
petitioner's version of the events of January 1st on direct
examination as follows:
A He stated that Robert [Irizarry] was talking
about a stabbing that went down, and Robert said,
"We, we yoked him up in —. . . . We yoked him up and
took an Italian and took his dollars." He said that
that's when the police arrived and Robert told him to
keep cool, and he said he hi[d] behind Al's bed.
Tr. 557. Subsequent to this interview of petitioner, Blake went
to the Grand Concourse and discovered there was no building
Petitioner's claim that his guilt was not proven beyond a
reasonable doubt merely asks this court to draw inferences from
the record that would be more favorable to a finding of
innocence. Such a procedure is not cognizable on federal habeas
The standard for measuring the sufficiency of the evidence in a
federal habeas corpus proceeding is "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." Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
(emphasis in original). See also Rapetti v. James, 784 F.2d 85,
90 (2d Cir. 1986). The elements of a crime may be
inferred from circumstantial evidence. See, e.g., McShall v.
Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981); People v.
Benzinger, 36 N.Y.2d 29, 34, 364 N.Y.S.2d 855, 858,
324 N.E.2d 334, 336 (1974). Thus, "[a]s long as any competent evidence went
to the fact-finders from which they could infer guilt beyond a
reasonable doubt, the conviction will stand." McShall v.
Henderson, 526 F. Supp. at 161. See also United States v.
Adegbite, 877 F.2d 174, 180 (2d Cir. 1989); Neumann v. People
of New York, 526 F. Supp. 286, 291 (S.D.N.Y. 1981) ("Petitioner
is not entitled to a writ of habeas corpus merely because his
conviction is based upon possibly conflicting interpretations of
the evidence and testimony.") Furthermore, this court cannot
substitute its own evaluation of the evidence for the jury's,
even in a case where it might be inclined to differ. See Jackson
v. Virginia, 443 U.S. at 319-20, 99 S.Ct. at 2789-90; Mallette
v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Gruttola v.
Hammock, 639 F.2d 922, 928 (2d Cir. 1981).
Petitioner emphasizes that in his statements following the
stabbing and prior to his death, Ferrara never indicated that
there was more than one assailant, whom he described as a short,
Hispanic male. Petitioner states that he is a black male standing
5'11". His understanding of the record is not completely accurate
inasmuch as witness Carbone testified that when he visited
Ferrara in the hospital, Ferrara stated that he was assaulted by
"three guys." In any event, the fact that the victim may have
given a description of the individual who confronted and stabbed
him does not ipso facto mean that there were not more involved.
Petitioner next asserts that no witness observed him with any
of the jewelry allegedly taken from the victim and, further, that
no inference may be drawn from his possession of a large roll of
bills, especially because the exact amount of money allegedly
taken from the victim was not stated. This approach of viewing
circumstances in isolation flies in the face of the confluence of
circumstances and the jury's option and responsibility to
consider all of the evidence in conjunction. The evidence was
that petitioner, an individual subsisting at a men's shelter,
shows up at the shelter suddenly in possession of a large roll of
money, asking about selling jewelry and boasting that he "took
off" an Italian man in his car at a nearby location only a short
time after an Italian man is found stabbed in his car outside the
shelter with the jewelry he was wearing and the large roll of
money he was carrying missing. Additionally, the jury could have
easily concluded petitioner, who initially hid from the police,
when confronted by them told two lies concerning his whereabouts
at the time of the crime.
Petitioner further argues that his having shown Adams a gun "is
the best proof that petitioner was not present at the time the
crime was committed nor did he have any idea as to what did occur
for, as the record below clearly demonstrates, the victim was
stabbed and there was no inference nor testimony from the victim
prior to his death that a gun was involved in the robbery
perpetrated against him." Memorandum of Law in Support of
Petition for Habeas Corpus at 7. Adams' testimony and the
stabbing, however, do not lead inexorably to the conclusion of
petitioner's innocence. The jury was not obligated to draw the
inference petitioner raises.
Viewed in its totality, the evidence was adequate to allow the
jury to conclude that petitioner was involved in the stabbing and
robbery of Ferrara.
Petitioner next contends that the prosecutor's comments during
summation denied him a fair trial because the prosecutor's
rhetorical flourishes misled the jurors as to their function in
evaluating the evidence and suggested that defense counsel was
attempting to trick them.
At the beginning of the prosecutor's summation, the court
overruled a naked objection to the following remarks of the
Assistant District Attorney:
Of course, in summation, it is always good to
mention certain inconsistencies, to make you think
that there's reasonable
doubt. You plant a little seed hoping it to mushroom.
Tr. 728. Petitioner contends that these remarks and the one that
immediately followed the court's ruling ("And to cloud up your
minds. I'm not going to ask you [to] cloud up your minds")
constituted an argument that the defense was trying to trick the
jurors. Petitioner adds that the prosecutor capitalized on the
impropriety by also saying:
What is there in the record to show that these cops
did something wrong? Just little seeds that are
planted along the line. Seeds like bait, you throw
MR. RASKIN: Objection.
MR. ROSENBLATT: — like bait, when you are fishing,
and you throw a little thing on the hook hoping that
the little fishes will snap at it.
MR. ROSENBLATT: Your Honor, I must object again,
the bait, fishes example.
THE COURT: Overruled. The jury will be properly
Following the prosecutor's summation, petitioner's
counsel moved for a mistrial out of the jury's presence:
MR. RASKIN: Your Honor, I anal[o]gize the comments
by Mr. Rosenblatt regarding a seed to what our Courts
have condemned as red herring arguments, search for
reasonable doubt. The intent Mr. Rosenblatt had, I
don't question nor do I care. I think what he is
doing is demeaning the defendant's position and
trying to place a burden on the defendant by
suggesting that the defendant is trying to catch them
or trick them by dangling bait in front of them. I
think this is serious error. If he wants to comment
on my comments, fine. If he wants to summarize the
evidence [an indiscernible portion of defense
counsel's argument was omitted at this point from the
transcript] to suggest to a jury that I am trying to
plant a seed and dangle bait such as one does when
one fishes so the fish goes with the bait, I think it
is [e]gregious error, and I think it is grounds for a
mistrial. If he had said "red herring" or "cloud" in
front of the j[u]ry, I am sure you would have
sustained an objection, however, you didn't sustain
any objection here, and I think your Honor is in
THE COURT: Application is denied. I think it was
more of a form of argument than anything else, and it
is simply his characterization of the testimony that
is presented to the jury which he has a right to do.
In response to this ground of the petition respondent contends
that petitioner has failed to exhaust his state remedies because
he failed to alert the Appellate Division to the federal
constitutional nature of his claim.
The federal habeas corpus statute, 28 U.S.C. § 2254, requires a
person in state custody to exhaust his state remedies before
seeking federal habeas corpus review. This rule is based on
considerations of comity between the federal and state courts,
ensuring that the state courts have an opportunity to consider
and correct any violations of their prisoners' federal
rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512,
30 L.Ed.2d 438 (1971); Daye v. Attorney General of the State of
New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert.
denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984).
Thus, exhaustion requires a petitioner to have presented to the
state courts the same federal constitutional claims, legally and
factually, he raises in his petition to the federal court so that
the state courts will have had the initial opportunity to pass on
them. Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512-13;
Daye v. Attorney General, etc., 696 F.2d at 191. See also
McGann v. State of New York, 870 F.2d 908, 910 (2d Cir. 1989);
Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir.), cert. denied,
___ U.S. ___, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989).
Because non-constitutional claims are not cognizable
in federal habeas corpus proceedings, Smith v.
Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71
L.Ed.2d 78 (1982), a habeas petition[er] must put
state courts on notice that they are to decide
federal constitutional claims. See, e.g., Daye, 696
F.2d at 192. It is not necessary for a habeas
petitioner to cite "book and verse" of the
Constitution, id. (quoting Picard v. Connor,
404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438
(1971)), but adequate notice to the state courts that
they are to decide federal constitutional claims at
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state
cases employing constitutional analysis in like
fact situations, (c) assertion of the claim in
terms so particular as to call to mind a specific
right protected by the Constitution, and (d)
allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.
Id. at 194.
Petrucelli v. Coombe, 735 F.2d 684, 687-88 (2d Cir. 1984). See
also Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988);
Holland v. Scully, 797 F.2d 57, 64-65 (2d Cir.), cert.
denied, 479 U.S. 870, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986).
Relying on this rule, respondent premises the claim of
nonexhaustion on petitioner's having cited the Appellate Division
only to two New York state cases on this issue, People v.
Hicks, 102 A.D.2d 173, 478 N.Y.S.2d 256 (1st Dep't 1984) and
People v. Brown, 111 A.D.2d 248, 489 N.Y.S.2d 92 (2d Dep't
1985), neither of which employed constitutional analysis in
treating claims of prosecutorial misconduct during summation.
Respondent seemingly overlooks, however, that the point heading
of petitioner's brief claimed the summation "DENIED APPELLANT HIS
DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST., AMEND. XIV"
(Brief for Defendant-Appellant at 26) and, on two of only three
pages of the brief that were devoted to this point, petitioner
argued he was denied his "due process right to a fair trial"
(Id. at 27, 29). To say that the state courts cannot recognize
a constitutional argument when the Constitution is cited to them
would, indeed, be an insult to those courts. (Moreover, if, as
respondent also claims, no error was committed, rejection of
petitioner's claim on the merits cannot offend the principle of
comity which underlies the exhaustion requirement.)
In the context of federal habeas review, the issue is
. . whether the prosecutor['s] comments "so
infected the trial with unfairness as to make the
resulting conviction a denial of due process."
Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974).
Darden v. Wainwright, 477 U.S. 168
, 181, 106 S.Ct. 2464, 2471,
91 L.Ed.2d 144 (1986); accord United States v. Wilkinson,
754 F.2d 1427
, 1435 (2d Cir.), cert. denied, sub nom. Shipp v.
United States, 472 U.S. 1019
, 105 S.Ct. 3482
, 87 L.Ed.2d 617
(1985). See also Garofolo v. Coomb, 804 F.2d 201
, 206 (2d Cir.
1986); United States v. Pena, 793 F.2d 486
, 490 (2d Cir. 1986).
During his summation petitioner's counsel had repeatedly
characterized the case against his client as speculation,
innuendo, guesswork and conjecture and told the jury that a
guilty verdict in this case would be an extreme and egregious
and an insult to justice. He stated that the police had not done
their homework and asserted that if the forensic officer, who
testified that he could not recover any latent fingerprints from
Ferrara's car, had worked longer than the half-hour that he did,
counsel would not be there giving a summation. He also criticized
the officers at the scene for following guidelines which
apparently did not require them to preserve the scene intact
unless there had been a homicide. Additionally, he asserted that
the evidence suggested Adams may have been a homosexual, that
Adams testified the way he did to cover up his own involvement as
Irizarry's accomplice and that his story about petitioner's
having shown him the gun did not ring true and was farfetched. He
further stated that Young had not testified in a truthful manner
and said, referring to Young, "I mean he made me a little
uncomfortable when he testified because I didn't believe anything
other than his name." Tr. 718. Under the circumstances, the
subsequent remarks of the prosecutor about which petitioner
complains were certainly within the range of rhetorical comment
permissible during closing argument and did not deprive
petitioner of a fair trial. See, e.g., United States v. Resto,
824 F.2d 210, 212 (2d Cir. 1987); United States v. Marrale,
695 F.2d 658, 666-67 (2d Cir. 1982), cert. denied, 460 U.S. 1041,
103 S.Ct. 1434, 1435, 75 L.Ed.2d 793 (1983); Harper v. Kelly,
704 F. Supp. 375, 379-80 (S.D.N.Y. 1989); Castro v. Sullivan,
662 F. Supp. 745, 752 (S.D.N.Y. 1987); People v. Galloway,
54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 11, 430 N.E.2d 885, 886 (1981).
See also People v. La Forge, 107 A.D.2d 896, 483 N.Y.S.2d 842,
843 (3d Dep't 1985) (mem.).
For all of the above reasons, I respectfully recommend that the
petition be denied.
Copies of this Report and Recommendation have been mailed this
date to the following:
Mr. Michael Martin 85-A-2363 P.O. Box 2000 Pine City,
New York 14871 Stanley R. Kaplan, Esq. Assistant
District Attorney 215 East 161st Street Bronx, New
The parties are hereby directed that if you have any objections
to this Report and Recommendation you must, within ten (10) days
from today, make them in writing, file them with the Clerk of the
Court and send copies to the Honorable Robert P. Patterson, Jr.,
to the opposing party and to the undersigned. Failure to file
objections within ten (10) days will preclude later appellate
review of any order that will be entered by Judge Patterson.
See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the
Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of
Health and Human Services, 892 F.2d 15
, 16 (2d Cir. 1989) (per
curiam); Wesolek v. Canadair Ltd., 838 F.2d 55
, 58 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234
, 237 (2d Cir. 1983)
Dated: New York, New York
September 12, 1990