Second, 28 U.S.C. § 2254(d) establishes eight exceptions whereby deference will not be accorded to a state-court's findings of fact. Most notably, the eighth exception abrogates any deferential treatment where the following three conditions exist: (i) the petitioner challenges the "sufficiency of the evidence to support [a particular] factual determination," (ii) the pertinent parts of the record have been produced for review by the Federal court, and (iii) "the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d) (1988).
Accordingly, to the extent that the state courts have made findings of facts, such findings will not be disturbed provided that they are supported by the record. See Ventura, 957 F.2d at 1054-55. In contrast, the legal conclusions attending these factual findings will be reviewed de novo by this Court. See id. at 1055. As can be observed from the foregoing discussion, regardless of the scope of review to be applied, a careful examination of the record is warranted.
III. Analysis of the Merits of the Petitioner's Claims
A. Sufficiency of the Evidence
Petitioner asserts that the evidence adduced at his trial was insufficient to sustain his convictions. Specifically, petitioner alleges the following evidentiary inconsistencies:
(1) Petitioner asserts that contradictory testimony was offered by two separate witnesses with respect to whether the cash drawer was open at the scene of the crime.
(2) Petitioner claims that his fingerprints were found only on the cash drawer, and that this is inconsistent with any alleged involvement in prying open a door, or holding a machete.
(3) Petitioner alleges that evidence of an unknown third-party's fingerprints was neither explained nor investigated.
(4) Petitioner claims that the police officer at the scene of the crime testified that he believed that the perpetrator was between four to five inches shorter than the petitioner.
(5) Petitioner asserts that Rudolph Harris--a witness for the prosecution--had an interest in testifying falsely against him because he had a deal with the police, as well as a grievance against the petitioner.
(6) Petitioner alleges that said Harris was an admitted perjurer.
(7) Petitioner asserts that the brutality of the murder for which he was implicated was inconsistent with his good character and general law-abidedness.
Viewed against the record, petitioner's first, second and fourth assertions bear on the jury's evaluation of conflicting evidence. See Tr. at 64-66, 165 (first assertion), 197, 199 (second assertion) 122 (fourth assertion) Petitioner's third and seventh assertions, meanwhile, attack the inferences that the jury has drawn from the evidence. See id. at 199 (third assertion). Last, petitioner's fifth and sixth assertions assail the credibility accorded to the testimony of a particular witness. See id. at 109, 112, 253, 256.
"A habeas petitioner challenging the sufficiency of the evidence supporting his conviction bears a heavy burden." Harrell v. Keane, No. CV 91-4604 (RR) 1993 WL 416551, at *7, (E.D.N.Y. Oct. 6, 1993) (citing Reddy v. Coombe, 846 F.2d 866, 868-69 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Liberta v. Kelly, 839 F.2d 77, 80 (2d Cir.), cert. denied, 488 U.S. 832, 102 L. Ed. 2d 65, 109 S. Ct. 89 (1988)). In order to obtain federal habeas relief, the district court must find, "after viewing the evidence in the light most favorable to the prosecution, [that no] 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, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). In making this assessment, a federal district court must defer to the jury's resolution of the weight given to conflicting evidence, the credibility accorded to the testimony of witnesses, and the inferences drawn from the evidence. See Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984). The jury's determination of guilt may not be disturbed if the jury has resolved these issues in a reasonable fashion. Moreover, the fact that not all of the inferences drawn from circumstantial evidence were inevitable does not negate the sufficiency of the evidence to prove the defendant's guilt beyond a reasonable doubt. See United States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 90 L. Ed. 2d 339, 106 S. Ct. 1793 (1986). Indeed, as the Supreme Court has noted, the pertinent "inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 122 L. Ed. 2d 203, 113 S. Ct. 853, 861 (1993) (emphasis in original).
Turning to the instant petition, a review of the trial record reveals that the jury had a rational basis for finding the petitioner guilty of each of the crimes for which he was convicted. As discussed supra, Thomas was linked to the scene of the crime through a matching of his fingerprints to prints taken from the cash register in the grocery store in which Jack Woo was killed. Moreover, a witness testified that the petitioner admitted to him his participation in the robbery that resulted in Mr. Woo's death. The Court cannot say in view of the record that the jury lacked a rational basis for finding the petitioner guilty of the crimes for which he was convicted. Accordingly, petitioner's claim that there was insufficient evidence to support his convictions must be denied.
B. Fair Trial Claims
Petitioner contends that he was denied a fair trial as a result of the cumulative effect of errors made by the trial court. Specifically, petitioner asserts that his right to a fair trial was abridged through the trial court's improper admission into evidence of certain photographs and fingerprint cards, and through its improper instructions to the jury as to (i) the burden of proof with respect to petitioner's alibi defense, (ii) the proper weight to accord circumstantial evidence, and (iii) the standards for felony murder. In addition, petitioner asserts that his due process rights were further violated through prosecutorial misconduct on summation, and through the prosecutor's improper cross-examination of his alibi witnesses. The Court will address each of these assertions in turn.
1. Admission into Evidence of Photographs of the Deceased
Petitioner contends that the trial court, over the defense counsel's objection, erred by admitting into evidence certain enlarged photographs, including photographs of the deceased which were taken at the crime scene. See Tr. at 38, 39. Petitioner argues that the prejudicial effect of these photographs deprived him of a fair trial.
It is well established that an erroneous evidentiary ruling ordinarily will not rise to the level of constitutional error sufficient to warrant the issuance of a writ of habeas corpus. See Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000, 78 L. Ed. 2d 694, 104 S. Ct. 503 (1983). Rather, in order for a writ of habeas corpus to issue as a result of an erroneous evidentiary ruling, the petitioner must show that the evidentiary ruling "'had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)); see also Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.) (relevant inquiry whether error deprived petitioner of a fundamentally fair trial), cert. denied, 116 L. Ed. 2d 123, 112 S. Ct. 158 (1991). An error of constitutional magnitude "may be found to have had such an effect even if absent the error, the evidence was sufficient to support the conviction." Henry v. Speckard, No. 1174, 1994 WL 151691, at *6 (2d Cir. Apr. 25, 1994) (citing Moore v. United States, 429 U.S. 20, 22, 50 L. Ed. 2d 25, 97 S. Ct. 29 (1976)).
Petitioner has not demonstrated that he was deprived of a fundamentally fair trial, because even if it were erroneous to admit the evidence in question, a review of entire record does not reveal that its admission "had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht, 113 S. Ct. at 1722. Of greatest concern to the petitioner was a photograph that showed the deceased lying behind the counter. Foundation testimony was presented by the police officer summoned to the crime scene that the photograph represented a fair and accurate depiction thereof. Tr. at 38. The record does not indicate, and petitioner does not contend, that this particular photograph was gory or of such inflammatory content as to distract the jury from the issue of Thomas's guilt or innocence. Further, a review of the trial record reveals that each of the photographs in question was properly authenticated and of significant probative value in clarifying police and eyewitness testimony about the locations of objects and people at the crime scene. Therefore, the Court is unable to conclude that the admission into evidence of any of the photographs deprived the petitioner of a fundamentally fair trial.
2. Reopening of Prosecution's Case to Admit Evidence of Fingerprint Cards
Petitioner next contends that he was denied a fair trial because the trial court permitted the prosecutor to reopen the state's case, after both the prosecution and the defense had rested, for the limited purpose of admitting the defendant's fingerprint card into evidence. The evidentiary foundation for this item's admission was provided by Police Officer Lohnes, who earlier in the trial had testified at length regarding certain fingerprint evidence using the card, which had only been marked for identification. Tr. at 261-67. Respondent contends that Thomas suffered no prejudice through the reopening of the state's case to admit the card because (i) the card was essential to allow the jury to make its own comparison of Thomas's fingerprints with the latent fingerprint found at the scene, and (ii) in any event, the defense was permitted to cross-examine Officer Lohnes regarding the card.
A trial court has considerable discretion to allow the prosecution to reopen its case after the defense has rested. See United States v. Burger, 739 F.2d 805, 809-10 (2d Cir. 1984). In light of the record which reveals that the defense was given ample opportunity to cross-examine Officer Lohnes regarding the probative value of the fingerprint card, Tr. at 264-67, the Court is satisfied that the trial court acted properly in allowing the prosecution to reopen its case.
3. Jury Charge with respect to Burden of Proof for Alibi Defense, the Marshaling of Evidence, and Circumstantial Evidence
Petitioner also contends that the trial court improperly instructed the jury with respect to the burden of proof applicable to his alibi defense, and improperly marshaled the evidence within its charge in discussing the counts of the indictment. Petitioner further asserts that the trial court improperly instructed the jury regarding the appropriate weight to accord circumstantial evidence.
The Court is unable to find any errors of constitutional dimension in the trial court's instructions to the jury with respect to these three items.
First, a review of the record reveals that the trial court's instructions clearly explained the People's burden of proving the defendant's guilt and disproving the alibi defense beyond a reasonable doubt. Tr. at 320-21.
Nor did the trial court unfairly marshal the evidence. The court even-handedly reviewed the evidence for both sides. Id. at 327-29. Moreover, the court's discussion of the indictment referred the jury to the counts thereof, and did not suggest that inferences should be drawn from the existence of the indictment. Id. at 305, 323, 329, 332, 337, 341. Further, before reviewing the evidence, the court was careful to explain to the jury that it was the jury's recollection of the evidence that was controlling. Id. at 329.
Finally, the Court does not consider the petitioner to have been denied a fair trial through the trial court's discussion of circumstantial evidence. In discussing direct and circumstantial evidence, the trial court addressed the jury as follows:
Our law makes no distinction between direct and circumstantial evidence. Any issue and fact in a criminal case may be proven by circumstantial evidence. To prove that fact, there must be positive evidence of some fact which though true does not answer the question in dispute, but affords a reasonable supposition of its existence. The fact or facts upon which a supposition is to be based must be proved by word and is not to rest in conjecture or suspicion. When facts are shown, it must appear that the supposition drawn is the only one that can be fairly and reasonably drawn from them. That any other explanation is in fairness and reason is not to be accepted. If the fact or facts proved permit you to draw either one of two inferences, one that reasonably supports the conclusion that the defendant did as he was charged and the other that he did not; then you must draw that one favorable to him. For in a criminal prosecution, he is entitled to every reasonable doubt. As to circumstantial evidence in this case, you may consider the evidence offered by two of the People's witnesses purporting to prove that the fingerprints found at the scene of the crime were those of the defendant.
Id. at 313-14 (emphasis added). The Court presumes that the petitioner, in assailing the trial court's discussion of circumstantial evidence, is referring to the emphasized sentence. The Court acknowledges that when viewed in isolation, the challenged instruction could conceivably lead the jury to apply the wrong standard, and that therefore this portion of the charge may be inappropriate.
"When determining if a constitutional right has been violated, however, a reviewing court should not view a challenged instruction alone." Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir. 1988). "'[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.'" Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973)). Thus, the appropriate inquiry "is whether a reasonable juror, after hearing the entire charge, would have believed that the state need only show that it was more probable than not" that the fingerprints found at the scene of the crime were the defendant's. Id. The Court finds that "the instructions to the jury, when viewed in their entirety, could not reasonably have altered the state's burden of proof." Id.
On at least twenty different occasions, the trial court informed the jury that it was the state's burden to prove the elements of the crime charged beyond a reasonable doubt. The challenged instruction, in contrast, was given only once, during the court's explanation of the general principles applicable to the case. In addition, the two sentences that preceded the challenged instruction admonished the jury to draw every reasonable inference in favor of the defendant. Moreover, on the critical issue of identity, the court carefully instructed the jury regarding the state's burden. Tr. at 326. Therefore, viewing the instructions in their entirety, "a reasonable jury could not have understood the state's burden to be anything other than beyond a reasonable doubt." Mullings, 864 F.2d at 16.
Thus, the Court finds that Thomas was not denied a fair trial through the trial court's instructions to the jury with respect to the burden of proof applicable to an alibi defense, the marshaling of evidence within the jury charge, and the appropriate weight to accord circumstantial evidence.
4. Jury Charge with respect to Felony Murder
Petitioner further contends that he was denied a fair trial through the trial court's instructions to the jury on the felony murder count. Specifically, petitioner argues that the trial court erred in instructing the jury that he could be found guilty on this count even if the jury did not find that he was the perpetrator who fatally shot the victim. Respondent, in turn, argues that the trial court properly instructed the jury that the defendant, to be convicted of felony murder, need not have killed the victim so long as he intended to commit the underlying crime. Neither the petitioner nor the respondent explicitly address the trial court's absence of instructions to the jury concerning the affirmative defense to felony murder.
Under New York law at the time of the relevant acts, a felony murder is committed when a person acting alone or in concert with others commits a "robbery . . . and, in the course of and in the furtherance of such crime . . . he, or another participant, if there be any, causes the death of a person other than one of the participants . . . ." N.Y. Penal Law § 125.25. "Unlike the crime of intentional murder, in order to support a conviction for felony murder it need not be established that the defendant acted with intent to cause death; the only intent required to be proven is the intent to commit the underlying felony." People v. Diaz, 177 A.D.2d 500, 501-02, 576 N.Y.S.2d 144, 145 (App. Div. 2d Dep't 1991) (internal quotations omitted), leave to appeal denied, 596 N.E.2d 413, 79 N.Y.2d 1048, 584 N.Y.S.2d 1015 (1992)).
Where the defendant was not the only participant in the underlying crime, an affirmative defense to felony murder is available if he can prove by a preponderance of the evidence that he:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and