other grounds, 505 U.S. 317, 112 S. Ct. 2503, 120 L. Ed. 2d 255 (1992).
The Court finds that petitioner's constitutional right to cross-examine witnesses was not violated. Petitioner had ample opportunity to cross-examine Officer Cecile and had the opportunity to inquire into all the transactions at issue in the case and had the opportunity to impeach Officer Cecile with her grand jury testimony and police reports. Therefore grounds 21 and 42 are dismissed.
Ground 22 alleges that the trial court improperly marshalled the evidence in a manner favorable to the prosecution. For this claim to warrant federal habeas corpus relief, petitioner must show that the trial court deviated from proper trial conduct in a manner that was both significant and substantially adverse to petitioner. See Jenkins v. Bara, 663 F. Supp. 891, 898-99 (E.D.N.Y. 1987); Johnson v. Scully, 727 F.2d 222, 226 (2d Cir. 1984); Daye v. Attorney General of the State of New York, 712 F.2d 1566, 1572 (2d Cir. 1983), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984).
The Court finds, as did the Magistrate Judge, that petitioner's claims are not supported by the record. After reviewing the record, the Court finds that the trial court properly and impartially marshalled the evidence. The trial court instructed the jury that police officers are no more credible than other witnesses, that negative inferences could not be drawn from petitioner's decision not to testify and properly instructed the jury with respect to the prosecution's burden of proof and the presumption of innocence. Therefore ground 22 is dismissed.
Ground 32 alleges that the trial court denied petitioner due process by denying the jury's request for a read-back of Officer Cecile's testimony, and ground 33 alleges that the trial judge coerced the verdict by telling the jury that he "wanted the verdict back today." The record reveals, however, that the jury did not request a read-back of testimony, but instead sought to obtain exhibits that had not been admitted into evidence. The trial judge properly excluded those exhibits from the jury's review and properly offered transcripts of testimony. There is also no evidence that the trial judge demanded a verdict within a specific time frame. Therefore grounds 32 and 33 are dismissed.
G. Errors In The Jury Instructions
Grounds 23, 25, 27, 28, 30, 31, 35, 37, 40 and 41 of the petition allege that errors in the jury instructions denied petitioner due process. An erroneous state jury instruction is grounds for federal habeas relief only if it "'so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990) (quoting Cupp. v. Naughten, 414 U.S. 141, 147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973)); Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385 (1991). In deciding whether a jury instruction violated due process, the Court must evaluate the instruction "'in the context of the overall charge.'" Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir. 1988) (quoting Cupp, 414 U.S. at 146-47)); McGuire, 112 S. Ct. at 482. An omitted or incomplete jury instruction is less likely to violate due process than an instruction that misstates the law, Henderson v. Kibbe, 431 U.S. 145, 155, 52 L. Ed. 2d 203, 97 S. Ct. 1730 (1977), and a proposed jury instruction that is not supported by the evidence need not be given. Blazic, 900 F.2d at 541.
Petitioner argues in ground 23 that the trial court erred by not giving a missing witness charge. The alleged missing witness was Willie Lee, the man who introduced Officer Cecile to petitioner. Lee witnessed petitioner's August 20, 1984 sale of marijuana to Officer Cecile, but had no role in any of the cocaine transactions that led to petitioner's conviction.
A missing witness charge is not constitutionally required whenever an informant is not called as a witness, Solis v. Walker, 799 F. Supp. 23, 24 (S.D.N.Y. 1992), and such a charge is generally appropriate only when the witness is "peculiarly within the power of either the prosecution or defense" and is capable of providing material testimony. Journet v. Coombe, 649 F. Supp. 522, 526 (S.D.N.Y. 1986). Further, a missing witness charge is not required if the omitted testimony would be "merely cumulative." United States v. Torres, 845 F.2d 1165 (2d Cir. 1988) (citation omitted).
Here, given Officer Cecile's testimony, Lee's testimony regarding the August 20, 1984 marijuana transaction would have been cumulative. Moreover, Lee could not have provided material testimony concerning the subsequent cocaine transactions. Finally, petitioner has failed to show that Lee was unavailable to the defense. The trial court properly exercised its discretion by refusing to give a missing witness charge and ground 23 is dismissed.
Grounds 25 and 27 allege that the trial court improperly instructed the jury that no inference of guilt could be drawn from petitioner's decision not to testify and failed to charge the jury regarding circumstantial evidence. However, the record indicates that the petitioner's counsel requested the "no inference" charge, see Trial Transcript at 341, and the record reveals that the trial court did, in fact, give a circumstantial evidence instruction. See Trial Transcript at 375-76. Accordingly grounds 25 and 27 are dismissed.
Petitioner argues in grounds 30 and 35 that the trial court erred by failing to instruct the jury to separately consider each count and by providing the jury with inadequate verdict sheets. However, a review of the record reveals that the trial court instructed the jury to consider each count of the indictment separately, see Trial Transcript at 396, 404, 413, and the verdict sheet provided for alternate verdicts by requesting findings of guilt or innocence on all of the listed counts. Accordingly, grounds 30 and 35 are dismissed.
Ground 28 alleges that the trial court improperly refused to charge the jury on an entrapment defense. Under New York law, entrapment is an affirmative defense that a defendant must establish by a preponderance of the evidence. N.Y. Penal Law §§ 25.00(2), 40.05. To establish entrapment, a defendant must show that the police "actively induced" a person to commit an offense, "creating a substantial risk that the offense would be committed by a person not otherwise disposed to commit it." N.Y. Penal Law § 40.05. In the instant case, the defense did not present any evidence contradicting Officer Cecile's testimony that petitioner initiated the cocaine transactions. Accordingly, the trial court had no obligation to instruct the jury regarding that defense. Blazic, 900 F.2d at 541 (citing Hopper v. Evans, 456 U.S. 605, 611, 72 L. Ed. 2d 367, 102 S. Ct. 2049 (1982)). Ground 28 is therefore dismissed.
Grounds 31, 37, 40 and 41 respectively allege that the jury instructions on agency, the presumption of innocence, intent, and reasonable doubt were inadequate. This Court finds, as did the Magistrate Judge, that the trial court adequately charged the jury on those issues. The trial court defined the term "agent," explained the requirements of the agency defense, and provided relevant factors for the jury to consider in determining whether petitioner was merely an agent. See Trial Transcript at 387-89, 414-16. The trial court properly instructed the jury on the presumption of innocence, see Trial Transcript at 379, 389, intent, see Trial Transcript at 394-95, and reasonable doubt. See Trial Transcript at 381, 388, 391-92, 395. Therefore grounds 31, 37, 40 and 41 are dismissed.
H. Ineffective Assistance of Counsel
Petitioner alleges in grounds 43-55 that his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show representation falling below an objective standard of reasonableness and a reasonable probability that absent counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In applying this test, the Court must be "highly deferential" and presume that counsel's conduct falls within the range of reasonable performance. Id. at 689.
Grounds 43-46, 48, 49, 53 and 54 allege that counsel was ineffective because he failed to properly protect petitioner's rights with respect the issues raised in grounds 9, 13, 16, 17, 19, 21, 23, 27, 35 and 42. The Court has already determined, however, that those grounds are meritless and that the trial court properly instructed the jury. Accordingly, petitioner cannot show that his counsel's representation was unreasonable nor that his defense was prejudiced by counsel's failure to pursue those claims. Grounds 43-46, 48, 49, 53 and 54 are therefore be dismissed.
Ground 47 alleges that counsel was ineffective because he failed to request a lesser included offense charge. A lesser included offense is an offense that must be committed in order to commit the greater offense. In the case at bar, petitioner was charged with, among other things, Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree and Seventh Degree. The latter two offenses are lesser included offenses of Criminal Sale of a Controlled Substance in the Third Degree. See N.Y. Penal Law §§ 220.39, 220.16 and 220.03; see also Rice v. Hoke, 846 F.2d 160, 165 (2d Cir. 1988) (It is "theoretically impossible" to sell a controlled substance without having possession of it and an intent to sell it.). A request for a lessor included offense charge was unnecessary because the jury was instructed on all of the charges. The Court finds that petitioner's counsel did not perform below an objectively reasonable standard and, therefore, ground 47 is dismissed.
Grounds 50, 51 and 52 allege that counsel was ineffective because he failed to object to certain evidence, failed to adequately prepare for the cross-examination of Officer Cecile, and failed to request certain curative instructions. Ground 55 alleges that counsel was ineffective because he failed to object at the sentencing to the trial court's determination of petitioner's criminal history. The Court finds, as did the Magistrate Judge, that these claims are meritless because the additional objections and preparation would not have affected the outcome of the trial. Strickland, 466 U.S. at 686. A review of the record reveals that petitioner's counsel extensively and competently cross-examined Officer Cecile. Petitioner cannot show that further preparation would have altered the outcome of the trial.
Similarly, counsel's failure to object to the composition of the comparison sample used to determine that the substance petitioner sold was cocaine was not ineffective assistance of counsel. It is likely the government would have been able to prove that the comparative sample was appropriate and, moreover, there was ample corroborating evidence that petitioner knew he was selling cocaine, see Trial Transcript at 55-58, 65-67, 72, 79, 84, 87. Therefore petitioner cannot show that there is a reasonable probability that absent counsel's errors, the result of the proceeding would have been different.
Lastly, even assuming that the trial judge exaggerated petitioner's prior criminal record at sentencing, petitioner has not shown a reasonable probability that an objection by counsel would have affected the sentence imposed. Petitioner was convicted of Criminal Sale of a Controlled Substance in the Third Degree, which is a class B felony. N.Y. Penal Law § 220.39. At the sentencing, petitioner knowingly and voluntarily admitted that he had previously been convicted of Burglary in the Third Degree, see Sentencing Transcript (S) at 2-3, a class D felony punishable by a term of imprisonment of more than one year. N.Y. Penal Law §§ 140.20, 70.00(2)(d). Based on these admissions, petitioner was a second felony offender convicted of a class B felony, subjecting him to a maximum term of imprisonment of nine to twenty-five years, N.Y. Penal Law § 70.06(3)(b), and a mandatory minimum term of one-half the maximum term imposed. N.Y. Penal Law § 70.06(4)(b). Petitioner's sentence of six concurrent terms of twelve and a half to twenty-five years was thus appropriate regardless of any alleged exaggeration of his criminal history.
Accordingly, grounds 50-52 and 55 are dismissed.
It is hereby
ORDERED that the Report-Recommendation signed and filed Magistrate Judge Di Bianco on October 11, 1994 is APPROVED; and it is further
ORDERED that the petition be DENIED and DISMISSED; and it is further
ORDERED, that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings.
IT IS SO ORDERED
DATED: AUGUST 29, 1995
SYRACUSE, NEW YORK
FREDERICK J. SCULLIN, JR.
UNITED STATES DISTRICT JUDGE