The opinion of the court was delivered by: PECK
REPORT AND RECOMMENDATION
TO THE HONORABLE DEBORAH A. BATTS, United States District Judge:
A jury in the New York Supreme Court, Bronx County, convicted petitioner Manuel Vera on November 7, 1990, of manslaughter in the first degree. See People v. Vera, 182 A.D.2d 574, 585 N.Y.S.2d 700 (1st Dep't 1992). As a second felony offender, Vera was sentenced to nine to eighteen years imprisonment. Id. Vera's habeas corpus petition alleges that (1) the state failed to disprove, beyond a reasonable doubt, his justification defense, and (2) he was denied due process by the trial court's unbalanced interested witness charge and the prosecutor's expression of his personal belief in Vera's guilt. For the reasons set forth below, I recommend that the Court deny Vera's petition. As to petitioner Vera's first ground, there was sufficient evidence for the jury to have convicted him. As to the second ground, the Court is barred from reaching it because the Appellate Division denied Vera's appeal for an adequate and independent state ground, that is, his failure to object at trial.
On September 23, 1990, between 8:30 and 9:00 P.M., an altercation arose between petitioner Vera and the deceased, Edward Jay ("Jay"), also known as "Shane," "Blackie," or "Blood." (Trial Transcript [hereafter, "T"] at 19-21, 37-38, 51, 95-96.)
The People's first witness, Robin Singleton, testified that she and a couple of other people were standing on the corner of Walton Avenue and 165th Street in the Bronx when Jay touched Vera. (T. 19-21, 32, 40-41.) A fight broke out, but was stopped. (T. 21, 40-43.) Singleton testified that Vera twice screamed, "Yo, Bubba man, that mother f er don't know me, don't touch me, I kill that mother f er." (T. 32-33.) Some people walked Jay down the hill, left him there, and returned to the corner. (T. 21, 33, 44, 46.) Vera followed Jay down the hill and another fight began; during this fight, Vera pulled a knife and stabbed Jay. (T. 21, 45-48.) After Vera stabbed Jay, the people who had been standing on the corner attacked Vera and beat him up, including hitting him with bottles. (T. 21, 45, 50.) On cross-examination, defense counsel brought out contradictions between Singleton's trial and grand jury testimony, and emphasized that Singleton sold drugs and was the victim's friend. (T. 35-40, 47-49, 52-53.)
The People's next witness, Willis Bing, testified to essentially the same events. Bing testified that Jay accidentally bumped Vera, words were spoken, although Bing did not remember what was said, and the first fight started. (T. 57-61, 81-82, 85.) Bing and others broke up this fight, and told Jay to walk down the hill. (T. 59, 61, 85-86.) Bing returned to the corner and a few minutes later someone said that Jay had been stabbed; Bing looked down the block and saw Vera stab Jay a second time. (T. 59-60, 86-87. ) At no time did Jay have a weapon in his hand. (T. 62-63.) Bing left when the police arrived because he was carrying PCP (angel dust) for sale. (T. 90.) On cross-examination, defense counsel established that Bing sold drugs and was Jay's friend. (T. 69-78, 81.)
The People's third, and last, eyewitness to the stabbing was John Duran. His version of the events differed from Singleton's and Bing's. Duran was in a grocery store with some friends when someone said Jay was in an argument. (T. 95, 100-01, 115.) Duran then went outside, and saw one of his friends holding Jay. (T. 95-96, 101, 115.) Someone told Vera to leave the area. (T. 96, 115, 117.) Vera was angry and resounded that nobody owns the block. (T. 117.) According to Duran's testimony, Vera, not Jay, walked down the hill first, and Jay walked down the hill after Vera. (T. 96-97, 120, 132.) While going down the hill, Jay was saying "no problem," indicating that there was not a problem between him and Vera. (T. 97, 101.) When Jay reached out to touch Vera on the shoulder, Vera pulled out a knife and swung at Jay, missing him. (T. 97-98, 101, 127-28, 130.) Jay stumbled back, and Vera stabbed him twice in the chest. (T. 98, 101-02, 121, 130-31.) After Vera stabbed Jay, the people who had been standing on the corner beat Vera up using beer bottles. (T. 98, 133, 140-41.) Duran called the police and made a statement to them when they arrived. (T. 98-99.) Duran testified that Jay liked to drink beer, that he never saw Jay fighting or battering anyone, and that he never saw Jay carry a knife. (T. 99-100.) On cross-examination, the defense developed the facts that Duran had a criminal record and was Jay's friend. (T. 111-14.)
The remainder of the People's case consisted of Police Officers Michael Meigh and Chris Acker, who arrived at the scene (T. 145-85); Terry Fraser, a forensic analyst with the Medical Examiner's office, who was necessary to establish the chain of custody of the knife (T. 186-87, 195-203); and Dr. Yury Kogan of the Medical Examiner's Office, who testified that the cause of Jay's death was a stab wound. (T. 204-24, at T. 207.) Dr. Kogan also testified that there was only a single stab wound (while Duran and Bing had testified that Jay was stabbed twice). (T. 220.) The People then rested. (T. 224.)
Petitioner Vera testified in his own defense. Vera testified that he went to 165th Street and Walton Avenue to see a girl named Wanda. (T. 232-33.) Vera could not remember Wanda's last name. (T. 251.) Jay approached Vera and attempted to hand him something, maybe drugs; when Vera refused, Jay got mad, grabbed Vera and then Jay threw a punch at him. (T. 234, 236, 250.) The people on the block grabbed Vera and Jay, separating them. (T. 236-37.) The people told Vera to get off the block. (T. 237.) As Vera was walking away, he heard footsteps and was punched in the face. (T. 238.) Someone started hitting Vera with a stick, and then Jay broke a beer bottle and, holding it in his left hand, came at Vera and cut his face. (T. 238-39, 242, 263-64.) Vera pulled out his knife and began swinging it around to protect himself, trying to get away. (T. 239, 249, 269-70, 273.) Jay lunged at Vera again with the broken bottle. (T. 241-42.) Vera ducked and stabbed Jay under the armpit. (T. 242-43, 249-50, 264-66.) Vera tried to run away but the other people attacked Vera, hitting him, kicking him and throwing bottles at him. (T. 243-44.) The police then came and Vera gave up his knife. (T. 244.)
On the People's rebuttal case, to rebut Vera's testimony that Jay came at him with a bottle in his left hand, Rosa Jay testified that her brother was right not left-handed. (T. 320.)
Closing Argument and Jury Instructions
In summation, defense counsel argued that the People's witnesses were not credible. He maintained that these witnesses were not telling the truth and that their motivation to lie was friendship. ([T.] 331, 339.) What all these witnesses had in common was their desire to help the deceased ([T.] 347). Counsel argued that [Vera] was acting in self-defense ([T.] 349)." (Vera's App. Div. Brief at 17.)
In response, the Assistant District Attorney (Mr. Turkin) defended the People's witnesses' credibility:
Counsel stood before you and intimated you cannot believe these people because it doesn't sound the same. And then intimated that they sat in my office and we went over this. Went over the story.
As I told you before, I don't vouch for my witnesses. I don't vouch for the deceased, Edward Jay. I'm not asking you to invite any of them into your homes for dinner or socialize with these people. . . .
The fact in issue here is did Manuel Vera stab Edward Jay to death? And the answer to that question is yes.
The next question you have to ask, was Manuel Vera justified in stabbing Edward Jay to death? And the answer to that is resoundingly no, there was no justification for this.
We've eliminated two problems. We know who did it and we know that it is not justified.
Mr. Turkin, how do you say that we know it is not justified? How can we brief [sic; believe] the witnesses that the People brought into this courtroom? How can we believe it when they didn't tell the same story?
It is not my job to tell those people what happened. It was my job to bring those people into the courtroom and for them to tell you what happened. Each of those people relayed a story to you, the series of events that took place on September 23rd, 1989, at about nine o'clock, as best they could relay that story. As they remembered it. It is not my recollection because I wasn't there. I ...