undertaken outside of the presence of the jury. But as Justice Rothwax pointed out at the sentencing, the issue was explored, but was in fact an "empty" one.
First, Giorgio refused to wear the microphone suggested by O'Neil before Ferrara's arrest. Second, both the D.A. and Giorgio's attorney stated that Giorgio's cooperation with the police was not to be taken into account in his sentencing for the first arrest in 1982. Third, Giorgio testified that he did not notify O'Neil, Detective Donald Longo (also of the New York Police Department), or the district attorney's office of his second arrest and conviction until after it was concluded. If Giorgio was acting as an agent of the state, he certainly would be expected to look to the state for assistance in the face of a second conviction in one year. Fourth, O'Neil testified that he never requested that Giorgio solicit letters from Ferrara, nor did he again request that Giorgio wear a taping device after January 21, 1982.
In the face of this testimony, Ferrara alleges that a Cardona hearing would have revealed an agency relationship. But he can point to no evidence, nor any promising leads that might have been pursued had the hearing been requested. Indeed, the allegations made in the papers for this petition appear to have been rebutted by testimony during the trial. If there were any issues that were needed to be explored which would have more fruitfully suggested an agency relationship, petitioner fails to indicate what those might be or why they could not be explored in front of the jury.
Because the courts "are understandably reluctant to require defense counsel routinely to [make] boilerplate motions merely to vindicate their professional competence without regard for grounds supporting such motions," this court finds that Dilts acted reasonably in not requesting a Massiah hearing regarding Giorgio. Ditommaso, 817 F.2d at 215. Having failed to show the merits of pursuing such a hearing, petitioner has failed to bring this portion of his claim of ineffective assistance of counsel within the scope of the Strickland test. Thus, no relief may be granted on this allegation.
Counsel's Abandonment of a Joint Defense
Petitioner next alleges that trial counsel was ineffective because he shared Giorgio's letters to Ferrara with Arnold's counsel in preparation of a joint defense and then abandoned the joint defense at trial. In such attacks on exercises of professional judgment, the court will look to whether counsel could have rationally determined that his client's best interests would be served by employing the chosen strategy; however, the court "will not second-guess trial counsel's defense strategy simply because the chosen strategy has failed." Ditommaso, 817 F.2d at 215.
In an uncorroborated affidavit, petitioner alleges that he gave Dilts his letters from Giorgio with the understanding that they would not be shown to anyone else. Dilts, however, gave the letters to Arnold's trial attorney, Michael Rosen, presumably to enable the two lawyers to mount a joint attack upon Giorgio's credibility. Although petitioner alleges that such action was in violation of the New York Code of Professional Responsibility, this court need not answer that question.
Rather, this court must address whether the change of trial strategy unduly prejudiced the petitioner.
In disputing the change of trial tactics, petitioner ignores the impact of his own letter confessing his guilt to Giorgio. According to Justice Rothwax's decision denying petitioner's motion to set aside the verdict, that evidence did not come forward until after trial began. At the start of trial, the letter was not in the possession of the prosecution or either defense attorney.
The emergence of the letter put Dilts in the position of having to discredit Giorgio and the letter. The letters from Giorgio to Ferrara appear to be the best means of undercutting Giorgio's credibility. This court cannot call irrational the attempt by Dilts to show that petitioner's confession was not meant to be the truth, but merely a statement in response to Giorgio's request for Ferrara to write down what petitioner believed Giorgio told the police.
As to the change from a joint defense to a theory that Arnold alone had committed the murder, such a tactic seems rational in view of the contents of Giorgio's letters. In particular, there were statements that Giorgio loved Ferrara, that he would not hurt Ferrara, that he could not help Ferrara if Ferrara started hating him, that Giorgio would not put his worst enemy in jail except for Arnold and two others, and that Giorgio was working on an alternative plan so that he would not have to testify against Ferrara. With such damaging evidence in existence, and the need to respond to Ferrara's incriminating letter, Dilts faced at least three strategic possibilities. He could maintain the joint defense and attempt to discredit Giorgio without using Giorgio's letters. He could maintain a joint defense and use Giorgio's letters despite the obvious bias that the letters show toward Ferrara. Or he could abandon the joint defense in favor of a theory that Arnold had committed the murder and that Ferrara had shot a dead body and thus reduce Ferrara's charge to a lesser included offense. Under this strategy, the letters would be used to suggest that Giorgio and Ferrara were writing not about what actually happened but what Giorgio told the police. This third option, the one exercised by Dilts, is a rational one when considered against the evidence admissible against Ferrara contained in his letter to Giorgio. Indeed, given the contents of the letter, Dilts appeared to be working in his client's best interests by developing a theory whereby the petitioner might have been convicted of the lesser charge once his fate had been effectively sealed by his own letter. This court therefore concludes that the abandonment of the joint trial strategy did not prejudice the petitioner to the extent that he could be said to have been deprived of the effective assistance of counsel.
Counsel's Alleged "Brown-outs"
Petitioner alleges that Mr. Dilts's performance at trial was possibly impaired by an illness which resulted in Dilts's hospitalization for blackouts at the end of the trial and brown-outs during trial. Petitioner is unable to show any evidence of these "brown-outs" occurring or their effect on his trial. Without more, no relief may be granted on such a bare allegation. See Hayden v. United States, 814 F.2d 888, 892 (2nd Cir. 1987).
II. The Burden of Proof
Petitioner alleges that while evidence at trial placed him at the scene of the murder, the possibility remained open that petitioner was unaware of his co-defendant's intention to kill Delia, and that when the petitioner fired two shots, he either knew he was shooting a dead body or mistakenly believed Delia was alive. Thus, petitioner contends that the People did not meet the requisite burden of proof to allow for his conviction of murder.
The Supreme Court has held that a state court conviction will not be disturbed on habeas corpus review of the sufficiency of the evidence unless "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, 61 L. Ed. 2d 560 (1979) (emphasis in the original). In this case, the prosecution had the original burden of proving that the petitioner, either as an accomplice or as a principal, killed Delia and that he did so with murderous intent. New York Penal Law § 125.25. This court concludes that this burden was met.
Petitioner's argument springs from the People's theory at trial. There, the prosecution asserted that Ferrara and Arnold planned to kill Delia; they had lured her into the woods in Rockland County where Arnold had fired the first two bullets into Delia's head and Ferrara had fired the second two bullets. In his summation, Dilts argued that Ferrara was not acting in concert with anyone, that petitioner fired the last two shots into Delia's head, and that because medical testimony offered at trial could not establish which bullet had killed Delia, the possibility existed that she was dead when Ferrara pulled the trigger.
Now, petitioner argues that because Arnold was acquitted of intentionally killing Delia, Ferrara could not share the requisite intent with Arnold and that the prosecution did not exclude to a moral certainty the hypothesis that Ferrara was in a state of shock when he fired the bullets. Furthermore, petitioner again asserts that the state did not prove that Delia was alive when he fired his shots.
Petitioner's argument is flawed because it is based on the belief that the jury had to believe his account of how Delia died. The jury did not have to believe petitioner's assertion that he ran and hid for a few minutes after the first shots, giving Delia sufficient time to die under the present theory. Nor would the jury need to believe petitioner as to the order and number of shots. Furthermore, alternative theories of what happened -- including the theory that Giorgio and Ferrara had conspired to murder Delia -- were introduced that the jury might have found believable, particularly after evaluating the credibility of the witnesses.
The evidence offered supports the jury's final conclusion. Petitioner confessed to shooting Delia twice, thinking she was alive so as to "put her out of her misery"; at the time, she appeared to the petitioner to be breathing. On the day of the murder, petitioner was overheard asking Arnold if she had the gun. This evidence, coupled with the circumstantial evidence of petitioner's behavior both before and after the murder,
would be sufficient to impute the requisite intent for murder.
As to the matter of proof of Delia's death at the time that Ferrara shot her, petitioner relies heavily on People v. Dlugash, 41 N.Y.2d 725, 395 N.Y.S.2d 419, 363 N.E.2d 1155 (1977). In that case the New York Court of Appeals upheld an Appellate Division finding that the evidence did not establish beyond a reasonable doubt that the murder victim was alive when the defendant fired bullets into him. At trial, evidence was introduced that Dlugash had waited two to five minutes after the victim had been shot twice in the chest before Dlugash shot him five times in the face. Dlugash contended that when he fired, the victim already looked dead. Neither prosecution physician witnesses could state with medical certainty that the victim was alive after the initial chest wounds were inflicted. Additionally, defendant produced a physician who testified that wounds like those the victim had suffered in the chest could be almost immediately fatal. Because of the lack of medical certainty, the Court of Appeals affirmed that the People had failed to meet their burden of proof.
This case is factually distinct in a number of ways. Whereas in Dlugash there was no doubt that someone shot the victim first, here Arnold contended that she had no part in the murder. Dlugash testified that his victim appeared to be dead; Ferrara's confession indicated Delia appeared to be alive. Finally, Dr. Lydia Perez, the medical examiner who conducted an autopsy on Delia, did testify that there was no way of telling which of the four bullets actually produced death nor which one went in first. Tr. at 335. But the medical testimony in Dlugash was given in a factual context where there were two sets of shots at two times with each set fired by different people. Dr. Perez's testimony exists in a context where the time between shots and the number of shooters was in dispute. Because the evidence showed that petitioner had fired at least two of the shots and done so with the belief that the victim was alive and where there was a dispute as to whether petitioner's co-defendant shot the victim at all, there appears to be sufficient evidence for a jury to conclude that Ferrara's gunshots caused Delia's death. The People, therefore, met their burden of proof and defendant was not denied due process.
Ferrara's application for a writ of habeas corpus is denied.
Dated: New York, New York
November 16, 1992
CHARLES H. TENNEY, U.S.D.J.