The opinion of the court was delivered by: CHIN
Petitioner McEachin brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court convictions for robbery and assault. For the following reasons, the petition is dismissed.
McEachin was convicted on February 25, 1987, after a jury trial, of Robbery in the First Degree (N.Y. Penal Law § 160.15) (McKinney 1988), four counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10) (McKinney 1988), and two counts of Assault in the Second Degree (N.Y. Penal Law § 120.05) (McKinney 1987). McEachin was sentenced as a predicate violent felon to concurrent prison terms of twelve to twenty-four years for the first degree robbery count, seven to fourteen years for the second degree robbery counts, and two to four years for the assault counts. The Appellate Division affirmed McEachin's conviction, People v. McEachin, 188 A.D.2d 433, 591 N.Y.S.2d 1023 (1st Dep't 1992), and the New York Court of Appeals denied leave to appeal, People v. McEachin, 81 N.Y.2d 889, 597 N.Y.S.2d 950, 613 N.E.2d 982 (1993).
McEachin's convictions arose from an armed robbery at the Prince George Hotel in Manhattan on March 23, 1986. The evidence introduced at trial established that on that date, McEachin and another man, Ronald Maxwell, proceeded to the ninth floor of the hotel where they robbed a number of hotel residents. Maxwell, brandishing a revolver, ordered the residents, and a hotel security guard who stumbled upon the scene, up against a wall and instructed them to give their jewelry and money to McEachin, who promptly collected the valuables. McEachin and Maxwell then fled the hotel, stopping only long enough for McEachin, at Maxwell's direction, to retrieve from the hotel lobby the visitor's log and a file box that contained their identification.
Upon exiting the hotel, McEachin and Maxwell were spotted by the police and a chase ensued. In the course of fleeing, the perpetrators accosted a woman in the process of starting her car. McEachin ordered the woman out of her car and window and threatened her with his gun. McEachin finally pulled her out of the car, threw her to the ground and sped off in the stolen car with Maxwell. Shortly thereafter, McEachin drove the car up onto the curb, where Maxwell got out and shot at the pursuing officers. Maxwell was killed by gunfire from the police. McEachin fled the car and was later arrested trying to get past the security guard at a nearby building. The police recovered from McEachin $ 130.69 and several necklaces taken from a hotel resident.
McEachin makes three claims in his habeas petition: (1) that his Fifth Amendment rights were violated and that he was prevented from testifying on his own behalf by the trial court's erroneous ruling on the admissibility of evidence of other crimes for impeachment purposes; (2) that he was denied a fair trial because the prosecutor made improper comments in her summation and shifted the burden of proof to the defense; and (3) that he was denied a fair trial because the trial judge improperly charged the jury and improperly marshalled the state's evidence in its charge.
A. The Trial Court's Sandoval Ruling
At a pre-trial hearing on the admissibility of McEachin's prior record, the prosecution sought to introduce evidence of McEachin's prior convictions. These convictions, which all occurred in 1981, consisted of five counts of first degree robbery involving a series of fast food restaurant robberies, as well as one count of second degree robbery involving a "purse snatch" from a sixty year old woman who was physically injured in the course of the incident. (Tr. 6-8).
McEachin pled guilty to these offenses and received concurrent sentences. Defense counsel argued that since McEachin's co-perpetrator, Maxwell, was dead, it was essential that McEachin testify in his own defense because no one else could testify as to how McEachin came to be at the hotel with Maxwell at the time of the robbery. (Tr. 5-6).
The trial court ruled under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), that if McEachin chose to testify, the prosecution could impeach his credibility with evidence that he had been convicted on one occasion of two felonies involving the "forcible theft of property," but they could not elicit that the convictions were for "robbery." The court further ruled that the prosecution could not cross-examine McEachin regarding the facts of the underlying first degree robbery convictions because of the similarity to the crimes charged in the instant case. (Tr. 18-19; 31-33). The trial court ruled, however, that the prosecution could cross-examine McEachin regarding the underlying facts of the "purse snatch" because that crime was "dissimilar to the instant crimes." (Tr. 25). Defense counsel then urged the trial court to adopt a "Sandoval compromise" whereby the prosecution could elicit that McEachin had previously been convicted of a felony but without any reference to the nature of the crime or its underlying facts. (Tr. 26-27). The trial court, however, refused the request and abided by its earlier ruling. (Tr. 32-33). McEachin did not testify at trial.
McEachin asserts that this ruling deprived him of his right to testify on his own behalf. He argues that the trial court misapplied Sandoval in that, in light of the death of McEachin's accomplice, it did not give proper weight to the need for McEachin's testimony in connection with the defense theory of lack of intent. McEachin also argues that the trial court did not give proper weight to the "identical" nature of McEachin's prior convictions, and thus did not properly balance the probative value of that evidence against its potentially prejudicial effect.
It is well-settled that a petitioner's failure to testify at trial is fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling. Luce v. United States, 469 U.S. 38, 43, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) (dismissing direct appeal from federal conviction based on challenge to district court's ruling that a prior conviction constituted permissible evidence for limited impeachment under Fed. R. Evid. 609(a) on the grounds that defendant failed to testify at trial); see also Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y. 1991) (dismissing habeas petition claim based on alleged deprivation of right to testify arising from trial court's Sandoval ruling on the grounds that defendant failed to testify at trial), aff'd, 940 F.2d ...