The opinion of the court was delivered by: SWEET
Petitioner Kevin Smalls ("Smalls") has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that the trial court's supplemental Allen charge deprived him of his constitutional rights to due process of law and a jury verdict of guilt beyond a reasonable doubt. For the reasons set forth below, the petition is granted.
On December 2, 1987, Smalls was convicted, after a jury trial conducted in the Supreme Court of the State of New York, Bronx County, of Robbery in the Second Degree and was sentenced to an indeterminate term of imprisonment between two and six years.
He appealed to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"), claiming, inter alia, that the supplemental Allen charge given by the trial court improperly placed a burden on the dissenting juror to convince the other eleven jurors, and therefore deprived Smalls of his rights under the United States Constitution to a fair trial and due process.
On March 4, 1997, the Appellate Division unanimously affirmed the conviction. See People v. Smalls, 237 A.D.2d 116, 654 N.Y.S.2d 362 (1st Dep't 1997). On May 19, 1997, the New York Court of Appeals denied Smalls leave to appeal. On August 14, 1997, Smalls filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was deemed fully submitted on April 16, 1998.
I. Facts of the Underlying Offense
The following facts were established at trial. On November 23, 1986, sometime between 12:00 and 1:00 a.m., Lang Faulcon ("Faulcon") was at the 149th Street subway station, waiting for an uptown train. He stood on the downtown side of the station since there was an off-hour waiting area on that side. At some point, a downtown train arrived, and Faulcon noticed a group of six men and two women exit the train. For the next fifteen minutes Faulcon was "watching everybody on the platform," especially the six men, one of which he said was Smalls, because they were looking at him.
When the uptown train arrived, Faulcon went through the tunnel to the uptown side and boarded the train. He noticed that the six men were behind him. As Faulcon got on the train, he realized that four of the six men, including Smalls, entered the same car as he did, while the other two boarded an adjacent car. Noticing that Smalls was staring at him, Faulcon watched as Smalls talked with his three companions, who were about eight to twelve feet from Faulcon. Growing afraid, Faulcon got off the train at the next stop after a two-minute ride. When he did so, one of the men, identified by Faulcon to be Smalls, called out to his counterparts, "Yo, yo, he's getting away." As Faulcon began to run, Smalls grabbed him in a choke hold and said, "We want your coat, take your coat off." A "big guy" started kicking Faulcon's hand, forcing him to release his jacket. The group of men took Faulcon's leather coat, gloves, glasses, and watch.
Later that morning, Faulcon went to a Transit Police station and reported his attack, describing a few of the assailants. Despite the dimly lit train, Faulcon had been able to see the faces of his assailants, including that of Smalls. The lights on the 149th Street subway platform, however, were bright. On December 1, 1986, Faulcon was shown a book of photographs and was told to take his time and pick out the robber. Faulcon was unable to identify "anybody" the first time he looked through the book. However, after examining the pictures for a second time, Faulcon selected Smalls' photo and identified him as one of the six men who robbed him. On February 14, 1987, Faulcon went to the 48th Precinct where he picked Smalls out of a lineup. Smalls was then arrested.
Aside from Faulcon, the only other prosecution witness called at trial was Transit Police Detective Charles Coleman, who testified that the off-hours waiting area at the 149th Street station was brightly lit. Detective Coleman never recovered Faulcon's stolen property from Smalls. Smalls presented no evidence at trial.
II. Deliberations and Verdict
The trial court received a note (Court Exhibit 4) from the jury during the first evening of jury deliberations, signed at 8:25 p.m., which stated that "the decision is 11 to 1, and we are unable to come to a conclusion." The court informed counsel that it intended to instruct the jurors to continue their deliberations, to state their opinions to each other, and to try to convince the other jurors of their views. Defense counsel objected to the proposed charge, stating that it was more prejudicial than an Allen charge and noting that with the vote eleven to one the court was urging the eleven to try to convince the one. Despite the objection, the court instructed the jurors as follows:
Now, you have had the case for some four or five hours, taking off your time for supper.
I will ask you to go back and again discuss this amongst yourselves. You should not be afraid to express your opinions and views. If you believe your opinions and views are correct, then you should make every effort to convince the others whether it be one of eleven, two out of twelve, whatever number it may be, to express your views.
If you believe your views are correct, then it is your responsibility as a juror to convince the others as to the correctness of the position of views that you have. You should continue to discuss the case.
If, after discussing your views and opinions with your fellow jurors, if you then feel that your views are no longer correct, you should be willing to change them, but if you believe your views are correct, then it is your responsibility as a juror to attempt to convince the others of the correctness of your views.
What I am asking you to do is to continue a free discussion. Discuss the issues, discuss the facts, and as you determine the facts to be, you should always be open to reason, you should not go to the juryroom and lock yourselves in the room and refuse to discuss the case.
Listen to the views of your fellow jurors, and express your personal views as well. I am not concerned what your views are. If you believe they are correct, it is your responsibility to convince the others, have them switch, have them adopt your views, but discuss it.
Please return to the juryroom.
(Trial Tr. at 259-61 (emphasis added).)
After further deliberations, the jury was unable to reach a unanimous verdict and was sequestered overnight. The next day, after readbacks of Faulcon's testimony, the jury returned a verdict convicting Smalls of robbery in the second degree.
I. Smalls Exhausted His State Court ...