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MASON v. SCHRIVER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


March 11, 1997

GRANVILLE MASON, Plaintiff, against SUNNY SCHRIVER, Defendant.

The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Loretta A. Preska, United States District Judge:

 Granville Mason's petition for a writ of habeas corpus raises an issue that has been addressed in three recent Second Circuit cases -- the propriety of closure of a state criminal trial during the testimony of an undercover police officer. See Pearson v. James, 105 F.3d 828 (2d Cir. 1997); Okonkwo v. Lacy, 104 F.3d 21 (2d Cir. 1997); Ayala v. Speckard, 102 F.3d 649 & 89 F.3d 91 (2d Cir. 1996). For the reasons discussed below, I recommend that Mason's habeas petition be granted based upon these recent Second Circuit decisions. Petitioner Mason's second habeas ground -- that the reasonable doubt jury instruction was improper -- lacks merit.

 FACTS

 On December 10, 1992, petitioner Granville Mason was convicted in Supreme Court, New York County, of criminal sale of a controlled substance and sentenced to five to ten years imprisonment as a second felony offender. (Petition, dated 8/15/96, PP 1-4.) During Mason's trial, the courtroom was closed for the testimony of two undercover officers. The First Department affirmed Mason's conviction, holding that the "undercover officers' Hinton-hearing testimony 'established the necessary spatial and temporal relationship among the courthouse, the location of defendant's arrest, and the anticipated geographic location of [their] future investigative work' to warrant closure of the courtroom." People v. Mason, 216 A.D.2d 149, 149, 628 N.Y.S.2d 648, 649 (1st Dep't 1995) (quoting People v. Brown, 214 A.D.2d 438, 438, 625 N.Y.S.2d 506, 507 (1st Dep't 1995)). The First Department further held that:

 

Both of the undercover officers were involved in ongoing long-term investigations in which some of the buy subjects had not yet been arrested, they continued to participate in "buy and bust operations" within the territory covered by Manhattan North Narcotics Division, which included the area north of 59th Street in Manhattan and encompassed the sales location, and both had pending cases from prior arrests.

 People v. Mason, 216 A.D.2d at 150, 628 N.Y.S.2d at 649. *fn1" The Court of Appeals denied leave to appeal on August 24, 1995. People v. Mason, 86 N.Y.2d 797, 632 N.Y.S.2d 511, 656 N.E.2d 610 (1995).

 On August 15, 1996, petitioner Mason filed his present habeas corpus petition pursuant to 28 U.S.C. § 2254, claiming that: (1) his Sixth Amendment right to a public trial was violated due to the courtroom closure during the testimony of two undercover officers; and (2) the trial court improperly charged the jury on reasonable doubt.

 The Closure Hearing

 On April 15, 1992, petitioner was arrested for selling three vials of crack cocaine to Detective Carey Billingly, an undercover detective with the police department's Manhattan North Narcotics Division. (E.g., Trial Tr. at 37-39.) The drug sale was observed by undercover police officer Linda Eaton-Lewis. (Id.)

 Before trial, the People moved to close the courtroom for the testimony of the two undercover officers. (9/15/92 Hinton Hearing [hereafter "H."] at 11-12.) Accordingly, a Hinton hearing was conducted to determine whether closure was warranted.

 Detective Billingly entered the courthouse for the Hinton hearing through the judges' entrance and waited to testify in a non-public area. (H. 17-18.) Detective Billingly testified at the Hinton hearing that during his three years as an undercover detective, he participated in 450-500 narcotics purchases, confined to the Manhattan North region, i.e., from 59th Street to the northern end of Manhattan. (H. 13, 16.) Detective Billingly testified that he remained involved in long term narcotics operations and that, because some subjects had not yet been arrested, he planned to continue purchasing narcotics in those cases. (H. 14.) Detective Billingly testified that there were "lost subjects" from his undercover buys -- that is, suspects who were not arrested. (H. 15.) According to Detective Billingly, testifying in an open courtroom would "hinder [his] job, and [his] life would be in danger." (H. 15.) Billingly had previously been threatened with "bodily harm and death," and in 1990, he had been forced to inhale drugs. (H. 15.) Detective Billingly's identity as an undercover officer is not public knowledge, and he "would not feel comfortable" testifying in an open courtroom. (H. 16.)

 Police Officer Linda Eaton-Lewis testified at the Hinton hearing that during her six months as an undercover officer, she participated in at least 200 narcotics purchases in New York County. (H. 19.) Like Detective Billingly, Officer Eaton-Lewis testified that she was involved in long-term narcotics operations, and planned to continue to purchase narcotics from those subjects who were not yet apprehended. (H. 19-20.) Officer Eaton-Lewis testified that her identity as an undercover officer was not public knowledge, she had been verbally threatened in the past, and she would be unable to testify in a non-inhibited manner if the courtroom were open during her testimony. (H. 20-21.) She felt that testifying in an open courtroom would jeopardize her safety "because the defendants can have people come into the courtroom and find out who" she is, and she "fear[s] for [her] safety." (H. 20-21.)

 At the conclusion of the very brief Hinton hearing -- the combined testimony of Detective Billingly and Officer Eaton-Lewis took only ten pages (H. 13-22) -- defense counsel objected to closure of the courtroom. (H. 24.) Defense counsel pointed out that all of the undercovers' buys occur above 59th Street (H. 24), and, of course, the courthouse was well below 59th Street.

 The trial judge granted the People's motion to close the courtroom during the undercovers' trial testimony, stating in full:

 

The application is granted as to each witness, and the courtroom will be closed during their testimony.

 

I find the People have met their burden of showing that closure is justified in this case and the cases cited by [the Assistant District Attorney], in my view, are good authority.

 (H. 24-25.) *fn2"

 The Jury Instructions

 Petitioner Mason's habeas petition also challenges the trial court's reasonable doubt charge. (Petition P 12(B).) Mason contends that the charge "required the jurors to articulate their reasons for acquittal." (Id.)

 At the start of the trial, in his introductory instructions, the trial judge told the jurors that:

 

As Mr. Mason sits there now, he carries with him the presumption of innocence. There is no burden on Mr. Mason or Ms. Martone his attorney to do anything, to prove in addition or to say anything at any time during the course of this trial.

 

To the contrary, it is the People who brought these charges against Mr. Mason, and it is the People's burden and responsibility to prove Mr. Mason's guilt. That burden never shifts from the People. It is the People's responsibility to prove Mr. Mason guilty of one or more of the charges submitted for your consideration beyond a reasonable doubt.

 

. . . If the People have not proven the defendant's guilt beyond a reasonable doubt, then it will be your responsibility to return a verdict of not guilty as to that charge.

 (Trial Transcript ["Tr."] at 28-29, emphasis added.)

 At the close of the case, the trial judge reiterated in virtually identical language that it was the People's burden to prove defendant's guilt beyond a reasonable doubt. (Tr. at 344-45.) The trial judge again stressed that the burden never shifts from the People. (Tr. 345.) The trial judge explained what is a "reasonable" doubt, in part, as follows:

 

If when you retire to deliberate, and you discuss this case, and discuss it you should, for the process of reaching a verdict involves discussion and the give and take of your recollections and opinions of the evidence, and one of you says, I have a doubt about this aspect of the case and a fellow juror responds what is the reason for your doubt? If you can then give a reason based on the evidence or lack of evidence, that is a reasonable doubt. If you can't it is not a reasonable doubt.

 (Tr. 347-48.) Defense counsel objected to this portion of the judge's charge. (Tr. 367-68.)

 ANALYSIS

 I. APPLICATION OF THE FOUR PRONG ANALYSIS OF THE SUPREME COURT'S WALLER v. GEORGIA DECISION, AS EXPLICATED BY RECENT SECOND CIRCUIT DECISIONS

 "There are two sources of the presumption that criminal court proceedings are open to the public -- the First Amendment, and also the Sixth Amendment," which provides: "In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial." E.g., Ayala v. Speckard, 102 F.3d 649, 650, 654 (2d Cir. 1996) (Ayala II) & 89 F.3d 91, 94 (2d Cir. 1996) (Ayala I). The Supreme Court has noted that public trials ensure fairness to the defendant, promote responsibility on the part of judges and prosecutors, encourage witnesses to come forward, and discourage perjury. Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31 (1984); see also, e.g., In re Oliver, 333 U.S. 257, 266-72, 68 S. Ct. 499, 504-07, 92 L. Ed. 682 (1948); Ayala I, 89 F.3d at 94. The Supreme Court also has held, however, that "the right to an open [criminal] trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. Georgia, 467 U.S. at 45, 104 S. Ct. at 2215.

 In Waller v. Georgia, the Supreme Court established a four-part test to determine when a criminal trial may be closed to the public: [1] "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] [the trial court] must make findings adequate to support the closure." Waller v. Georgia, 467 U.S. at 48, 104 S. Ct. at 2216. *fn3" The Second Circuit has reaffirmed and explicated the Waller test in its recent decisions. Pearson v. James, 105 F.3d at 830-31; Okonkwo v. Lacy, 104 F.3d at 24-25; Ayala II, 102 F.3d at 651-54; Ayala I, 89 F.3d at 94-96. *fn4"

 All four prongs of the Waller test must be satisfied or the closure violates a defendant's Sixth Amendment right to a public trial. See, e.g., Ayala II, 102 F.3d at 651.

 The Supreme Court also has made clear that "while some State interests may justify courtroom closure, 'such circumstances will be rare, however, and the balance of interests must be struck with special care." Ayala II, 102 F.3d at 650 (quoting Waller v. Georgia, 467 U.S. at 45, 104 S. Ct. at 2215. *fn5"

 In Mason's case, habeas relief is warranted because the third and fourth Waller prongs have not been met. We discuss each of those in turn.

 A. The Third Waller Prong: The State Trial Court Here Did Not Consider Reasonable Alternatives to Closure

 In Ayala I, the Second Circuit made crystal clear that the trial judge is under an "absolute duty" to sua sponte consider possible alternatives to closure of the courtroom during the undercover's testimony. Ayala I, 89 F.3d at 96. The Second Circuit reaffirmed that holding on rehearing, and suggested some "obvious" alternatives for consideration:

 

There are numerous obvious alternatives that were never considered. For example, a strategically placed chalkboard may have allowed the public into the courtroom without seeing the identity of the undercover officer. Another approach might have been to ask [the defendant] who he wanted in the courtroom, then cause the State to show why any such person should not be present. See, e.g., Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994), [cert. denied, 513 U.S. 1102, 115 S. Ct. 778, 130 L. Ed. 2d 672 (1995)]. Still another approach could have been for [the undercover officer] to have concealed his identity in some other manner, such as disguise. From our appellate perspective we cannot say whether any of these less broad alternatives were feasible. But there was zero consideration given to them.

 Ayala II, 102 F.3d at 653. The need to sua sponte consider these alternatives was reiterated by the Second Circuit in Okonkwo v. Lacy, 104 F.3d at 25-26, and Pearson v. James, 105 F.3d at 830-31.

 The Court notes that there now is disagreement among the judges of the Second Circuit as to the appropriateness of the requirement that trial judges must sua sponte consider alternatives. Pearson v. James, 105 F.3d at 831-32 (Jacobs & Cabranes, J., concurring). The Court hopes that the issue will be clarified by the Second Circuit en banc or by the Supreme Court. Until either of those occur, however, this Court is required to follow the Second Circuit opinions in Ayala I & II, Okonkwo and Pearson requiring the state trial judge sua sponte to consider alternatives to courtroom closure.

 It is obvious that the state judge for Mason's trial did not consider any alternatives. At the end of Mason's Hinton hearing, the state trial judge stated in full that "the application is granted as to each witness, and the courtroom will be closed during their testimony. I find the People have met their burden of showing that closure is justified in this case and the cases cited by [the ADA] in my view, are good authority." (H. 24-25.) It is clear from this language that the court did not consider reasonable alternatives to closing the courtroom during the undercover officers' testimony. Therefore, the courtroom closure denied Mason his constitutional right to a public trial. Ayala II, 102 F.3d at 653; Ayala I, 89 F.3d at 96; Okonkwo v. Lacy, 104 F.3d at 25-26; Pearson v. James, 105 F.3d at 830-31. Accordingly, I recommend that Mason's habeas petition should be granted.

 B. The Fourth Waller Prong: The State Trial Court Did Not Make Adequate Findings To Support Closure

 Under Waller's fourth prong, in order for a reviewing court to determine whether the order was proper, the trial court must make findings that are adequate to support closure. Waller, 467 U.S. at 48, 104 S. Ct. at 2216. Here, the trial judge stated only his conclusion that the "People have met their burden of showing that closure is justified in this case." (H. 24-25.) The trial judge did not discuss, much less make findings about, any of Waller's four prongs (or their state equivalents). As is obvious from the preceding subsection, the trial judge made no findings as to alternatives to closure. But even if sua sponte consideration of alternatives were not required, the trial judge's failure to make any findings as to whether issues of the undercover's safety or the State's interest in maintaining the undercover's "cover" justified closure under Waller's first prong would require granting Mason's habeas petition for failure to satisfy Waller's fourth prong. See, e.g., Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996) ("conclusory justification" fails to satisfy fourth Waller prong). *fn6"

 II. THE CHALLENGED PORTION OF THE STATE TRIAL COURT'S REASONABLE DOUBT CHARGE, VIEWED IN CONTEXT, DOES NOT JUSTIFY HABEAS RELIEF

 For the sake of completeness, this Report and Recommendation also will address Mason's second habeas ground.

 Mason argues that the trial court's reasonable doubt charge required jurors to articulate their reasons for acquittal and, by doing so, improperly shifted the burden of proof. (Petition P 12(B).) For the reasons set forth below, I find that the trial court's charge adequately conveyed the concept of reasonable doubt in the context of the entire charge.

 Over twenty years ago, the Supreme Court stated that it already was "well-established" that jury instructions "must be viewed in the context of the overall charge," and a "single instruction to a jury may not be judged in artificial isolation." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973); see also, e.g., Cage v. Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 329, 112 L. Ed. 2d 339 (1990) ("In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole."); United States v. Park, 421 U.S. 658, 674, 95 S. Ct. 1903, 1912, 44 L. Ed. 2d 489 (1975) (quoting Cupp).

 In Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), the Supreme Court held that "so long as the court instructs the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, 'taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.'" Id., 114 S. Ct. at 1243 (citations omitted, brackets in original).

 Petitioner Mason challenges the following part of the trial court's reasonable doubt charge as improperly shifting the burden:

 

If when you retire to deliberate, and you discuss this case, and discuss it you should, for the process of reaching a verdict involves discussion and the give and take of your recollections and opinions of the evidence, and one of you says, I have a doubt about this aspect of the case and a fellow juror responds what is the reason for your doubt? If you can then give a reason based on the evidence or lack of evidence, that is reasonable doubt. If you can't, it is not a reasonable doubt.

 (Tr. 347-48.) However, the court repeatedly stressed, both in its preliminary instructions and in its final charge, that Mason is presumed innocent, it is the People's burden to prove guilt beyond a reasonable doubt, and the burden never shifts from the People. (Tr. 28-29, 344-45.)

 The Second Circuit, in contrast to the New York courts, has opined that jury instructions that imply that jurors should be able to give a reason for their doubts are "perhaps unwise" and are "not approved"; nevertheless, where the jury instructions taken as a whole clearly instruct that the burden is on the government and that the defendant is never required to prove his innocence, the charge as a whole will not be held to be erroneous. *fn7" See, e.g., Vargas v. Keane, 86 F.3d 1273, 1278-79 (2d Cir.), cert. denied, 136 L. Ed. 2d 169, 117 S. Ct. 240 (1996); Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir.), cert. denied, 136 L. Ed. 2d 60, 117 S. Ct. 106 (1996); United States v. Davis, 328 F.2d 864, 867-68 (2d Cir. 1964) (Friendly, J.). Here, as in those cases, the trial court's entire charge made clear that Mason was not required to prove his innocence and that the burden rested on the People.

 Thus, when considered in the light of the entire jury charge, the trial court's instruction on reasonable doubt did not constitute reversible error sufficient to justify habeas relief.

 CONCLUSION

 For the reasons set forth above, I recommend that the Court grant Mason's petition for a writ of habeas corpus because the closure of the trial to the public during the testimony of the undercover officers was improper under two of Waller's four prongs, as interpreted by the Second Circuit's recent Ayala v. Speckard, Okonkwo v. Lacy and Pearson v. James decisions.

 FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Services, 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

 Dated: New York, New York

 March 11, 1997

 Respectfully submitted,

 Andrew J. Peck

 United States Magistrate Judge


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