thereby establishing the mens rea of recklessness. Roe, 544 N.Y.S.2d at 300 n.7.
However, petitioner's point is unrefuted: respondent is unable to cite any authority for the proposition that the required depravity may be satisfied by acts subsequent to the victim's death, nor does he explain how, in this case, petitioner's subsequent acts could reveal his subjective awareness of the risk. Consequently, this Court will exclude all subsequent act evidence from its sufficiency of evidence analysis.
Nevertheless, even without considering petitioner's subsequent acts, ample evidence was presented by the prosecution to refute petitioner's contention that no rational finder of fact could have found the requisite elements of depraved mind murder beyond a reasonable doubt. Such evidence consists of the medical examiner's expert testimony regarding the tremendous force petitioner applied to the neck of his much smaller, weaker, and asthmatic victim -- force which he applied for up to three minutes, and which he continued to apply even after his wife lost consciousness.
Petitioner contends that because there is no way of determining whether or not the jury improperly considered subsequent act evidence, its "verdict must be set aside [since] it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds were relied upon by the jury in reaching its verdict." Mills v. Maryland, 486 U.S. 367, 376, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988); Yates v. United States, 354 U.S. 298, 312, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957); Stromberg v. California, 283 U.S. 359, 367, 75 L. Ed. 1117, 51 S. Ct. 532 (1931). However, in Griffin v. United States, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), the Supreme Court recently explained that the holding in Stromberg and its progeny is applicable only when one of the possible bases for conviction was legally inadequate. It is inapplicable to a claim like this one for insufficient evidence to support the jury's verdict.
Finally, petitioner relies on McCormick v. United States, 114 L. Ed. 2d 307, 111 S. Ct. 1807, 1815 n.8 (1991) and United States v. Schwartz, 924 F.2d 410, 418 (2d Cir. 1991) for the proposition that a conviction cannot be sustained on a theory never presented to the jury. However, these cases are also inapposite. In the instant case, the Suffolk County Grand Jury indicted petitioner on depraved mind murder, the prosecutor presented that theory in his closing arguments, and the judge properly charged the jury as to its elements.
Petitioner has failed to prove that the jurors improperly relied upon evidence of his subsequent acts to find the required depravity. See Swain v. Alabama, 380 U.S. 202, 226-27, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965) (petitioner in a habeas petition has the burden of proof); Polizzi v. United States, 926 F.2d 1311, 1321 (2d Cir. 1991) (same). Accordingly, petitioner's insufficient evidence claim is denied.
B. Ineffective Assistance of Counsel
Petitioner acknowledges that a claim of ineffective assistance of counsel is often made, but is seldom meritorious. Petitioner's arguments to the contrary, the instant claim is typical.
In order to successfully assert that he received ineffective assistance of counsel, petitioner must establish that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) "there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see United States v. Reiter, 897 F.2d 639, 645 (2d Cir.), cert. denied, 112 L. Ed. 2d 34, 111 S. Ct. 59 (1990). Although the habeas court must make an independent review of the evidence, Kimmelman v. Morrison, 477 U.S. 365, 378, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986); Shaw v. Scully, 654 F. Supp. 859, 865 (S.D.N.Y. 1987), "judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence . . . . " Strickland, 466 U.S. at 690. "The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.; see Mills v. Scully, 826 F.2d 1192, 1197 (2d Cir. 1987) (same).
Petitioner claims that he received ineffective assistance of counsel because, inter alia, his attorney took a vacation sometime before the commencement of trial rather than spend that additional time in trial preparation; failed to call a necessary expert witness (possibly because of his "net fee" arrangement); failed to renew his motion for a change of venue after the completion of the voir dire; failed to timely move for the suppression of an admission by Solomon in a Dunaway hearing; failed to effectively impeach Padilla's testimony through the use of inconsistent statements; and, in general, failed to present a coherent defense strategy as is evidenced by his weak opening and closing statements.
Most of these claims fail the first part of the Strickland test which examines whether counsel's performance was deficient under the totality of the circumstances. Strickland, 466 U.S. at 690. The remainder, even assuming a failure to meet professional norms (and this Court does not make such a finding), fail the second part of the Strickland test which requires demonstrating prejudice. Id. at 693.
First, counsel's performance, viewed in its totality, was "objectively reasonable." A partial list of counsel's efforts on behalf of petitioner includes: motion for pre-trial discovery, including requests for particularization of the charges and Brady material; motion to dismiss the indictment; Huntley motion to suppress admissions made to the police; successful motion to preclude oral admissions which were not properly noticed pursuant to C.P.L. § 710.30; Sandoval motion to preclude prior criminal and immoral acts; motion for a change of venue; motion for individual questioning of jurors in chambers during voir dire and for additional peremptory challenges; extensive questioning of prospective jurors; motion to preclude evidence relating to petitioner's conduct subsequent to the homicide; motions for a mistrial based on an alleged violation of the court's preclusion order and on prosecutorial misconduct; numerous objections on various grounds to the prosecutor's offers of evidence (including a successful objection to the introduction of a videotape of the discovery of Lisa's body); numerous objections to the prosecutor's examination of witnesses; lengthy and aggressive cross-examination of prosecution witnesses; direct examination of three defense witnesses; introduction of fifteen exhibits; and opening and closing arguments with the consistent theme that the death of Lisa Solomon was a tragic accident, not a murder. Although petitioner's counsel undoubtedly made certain errors, this record indicates that viewed in the context of the entire record, he did a reasonable job. See Kimmelman, 477 U.S. at 386; Wise v. Smith, 735 F.2d 735, 738-39 (2d Cir. 1984) (petitioner not entitled to a perfect defense). It also indicates that Waller's pre-trial vacation notwithstanding, he was adequately prepared for trial. See Jones v. Estelle, 622 F.2d 124, 127 (5th Cir. 1980) (that counsel only met with his client one time before trial does not prove ineffective assistance), cert. denied, 449 U.S. 996, 66 L. Ed. 2d 295, 101 S. Ct. 537 (1980).
With the advantage of hindsight, petitioner discusses various alleged errors made by Waller. They do not, however, add up to a violation of petitioner's Sixth Amendment right to effective counsel. See United States v. Cruz, 785 F.2d 399, 405 (2d Cir. 1986) (warning against use of hindsight in challenge to counsel's trial conduct) (citing Strickland, 466 U.S. at 689).
1. Failure to Renew Motion for a Change of Venue
Although the extensive media coverage prior to trial prompted Waller to file a voluminous motion for a change of venue, he did not renew that motion after the completion of the voir dire as the Appellate Division suggested by its citation of People v. Boudin, 87 A.D.2d 133, 451 N.Y.S.2d 153 (2d Dep't 1982). Petitioner's present counsel now concludes that this is an example of Waller's incompetence.
Considering, however, the extensive voir dire conducted by Waller and the fact that he exercised only 18 peremptory challenges and voiced his consent to each jury member selected, this Court finds it more likely that Waller knew (at least after his motion for a change of venue was denied) that he could have renewed that motion after the voir dire, but he decided that a change of venue was not necessary. See Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983) (habeas court should not "second guess matters of trial strategy simply because the chosen strategy was not effective"); People v. DiPiazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 550, 248 N.E.2d 412 (Ct. App. 1969) (defendant cannot complain of denial of motion for change of venue when his counsel did not use all his peremptory challenges and declared himself satisfied with each juror selected).
2. Failure to Move for Dunaway Hearing
Waller failed to move, pursuant to Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), to suppress admissions that petitioner made to police officers at the time of his arrest, nor did Waller seek permission to reopen the issue pursuant to C.P.L. § 710.40(4) and People v. Cohen, 58 N.Y.2d 844, 460 N.Y.S.2d 18, 19, 446 N.E.2d 774 n* (Ct. App.), cert. denied, 474 U.S. 951 (1986). "In order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) (citing Kimmelman, 477 U.S. at 375-76); see LiPuma v. Commissioner, Dept. of Corr., 560 F.2d 84, 93 (2d Cir.) (it is sufficient that counsel exercised "professional discretion"), cert. denied, 434 U.S. 861 (1977); Curzi v. United States, 773 F. Supp. 535, 544 (E.D.N.Y. 1991) (same).
In the instant case, although counsel's failure to make a Dunaway motion was apparently an error rather than an exercise in professional discretion, see [H: 82-85, 100], petitioner has failed to state any basis on which such a motion would have a likelihood of success. See United States v. DiTommasso, 817 F.2d 201, 215 (2d Cir. 1987). Furthermore, considering the forensic evidence and the testimony of Padilla and others, there is ample evidence to support the verdict even if petitioner's admissions had been suppressed.
3. Failure to Impeach Padilla with Inconsistent Statements
Waller failed to impeach Padilla through the use of inconsistent statements on the issue of whether, on the night of the homicide, he heard only petitioner's voice raised in anger, or also Lisa Solomon's. Apparently, Waller incorrectly believed that he could explore this issue through the hearsay testimony of Detective Dennis Delaney to whom Padilla had spoken. Respondent counters that Waller cross-examined Padilla at great length, specifically questioned him about what he did and did not hear, and did use Rosario material as part of that cross-examination. See [T:1789-1820].
In any event, assuming Waller could have made better use of available Rosario material, this error caused no prejudice to petitioner. It is clear that petitioner and his wife argued before the homicide. Petitioner's acts would be no less culpable whether Lisa had conversed in shouts or whispers.
4. Failure to Call an Expert Witness on Petitioner's Post-Traumatic Stress
Petitioner's next claim is that Waller failed to call an expert witness on the subject of post-traumatic stress disorder to explain petitioner's acts subsequent to his wife's death. Respondent counters that petitioner's first two witnesses, the Emergency Medical Technician and the emergency room surgeon who treated him on the night his wife's body was discovered, both testified that they believed petitioner was in emotional shock due to stress or grief at that time.
Moreover, petitioner's reliance on Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987) is inapposite because the potential witness in Maddox was prepared to testify that the defendant "was extremely emotionally disturbed prior to, and during, the commission of the crime." Id. at 1061 (emphasis added). As discussed in section II.A. supra, petitioner's emotional state after he killed his wife is not relevant to the issue of his guilt of depraved mind homicide. Consequently, any expert testimony regarding petitioner's emotional state at that time would have been irrelevant. See United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) ("decision whether to call any witnesses . . . is a tactical decision of the sort engaged in by defense attorneys in almost every trial"), cert. denied, 484 U.S. 958, 98 L. Ed. 2d 382, 108 S. Ct. 357 (1987).
5. Failure to Present a Coherent Defense Strategy
Finally, petitioner contends that Waller failed to present a coherent defense strategy. He notes that Waller admitted, both in his opening and closing statements, that petitioner was the instrument of his wife's death and he suggests that Waller was remiss for failing to place greater emphasis on a theory of accident or emotional stress.
However, even the complete waiver of an opening statement in conjunction with a brief summation will not generally be considered proof of ineffective assistance of counsel. See Nersesian, 824 F.2d at 1321. Indeed, where defense counsel is faced with overwhelming evidence of his client's guilt, including the client's confession, it is not ineffective assistance of counsel to submit that defendant to the mercy of the jury. People v. Mapp, 47 N.Y.2d 939, 419 N.Y.S.2d 947, 393 N.E.2d 1020 (Ct. App. 1979); Rickenbacker v. Warden, 550 F.2d 62, 66 (2d Cir. 1976) (brief closing argument held sufficient), cert. denied, 434 U.S. 826, 54 L. Ed. 2d 85, 98 S. Ct. 103 (1977).
Moreover, as discussed above, petitioner's emotional stress after the homicide was not a relevant issue and Waller did stress a theory of accidental death throughout the trial.
Counsel can hardly be called ineffective for using the word "tragedy" rather than "accident" in addressing the jury.
Accordingly, petitioner's claim that he received ineffective counsel is denied.
C. Media Coverage Deprived Petitioner of a Fair Trial
Petitioner's final claim is that the media coverage of this case, coupled with improper remarks made by the prosecutor at a press conference during the trial, deprived him of a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. However, as the Appellate Division noted, "'no matter how desirable it may be, it is unrealistic to expect and require jurors to be totally ignorant prior to trial of the facts and issues in certain cases.'" Solomon, 569 N.Y.S.2d at 102 (quoting People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 400, 305 N.E.2d 469 (Ct. App. 1974). "Indeed, it seems well settled that pre-trial publicity, even if pervasive and concentrated, does not necessarily lead to an unfair trial." Boudin, 451 N.Y.S.2d at 155 (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 565, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976)).
As discussed above, after an extensive voir dire in which counsel did not exhaust his peremptory challenges and expressed his satisfaction with each juror selected, petitioner did not renew his motion for a change of venue. Moreover, the jurors all expressed their ability to decide the case solely on the evidence presented at trial and, after summations, they stated that they had been following the judge's instructions to guard against exposure to the media. None of them had seen the broadcast of the prosecutor's mid-trial press conference. Consequently, petitioner has not shown that he was denied a fair trial because of the media coverage of this case. See Mu'Min v. Virginia, 114 L. Ed. 2d 493, 111 S. Ct. 1899, 1907 (1991) ("trial court's finding of juror impartiality may 'be overturned only for manifest error'") (quoting Patton v. Yount, 467 U.S. 1025, 1031, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984)). Accordingly, petitioner's claim that he was deprived of a fair trial as a result of the media coverage is denied.
This Court has also examined petitioner's remaining contentions and finds them to be without merit. For the aforementioned reasons, petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
February 28, 1992