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WOOD v. ARTUZ

February 2, 1999

DAVID WOOD, PETITIONER,
v.
CHRISTOPHER ARTUZ, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Wexler, District Judge.

  MEMORANDUM AND ORDER

Presently before the Court is the habeas petition of David Wood pursuant to 28 U.S.C. § 2254. For the reasons that follow, the petition is denied.

BACKGROUND

On September 10, 1983, in Baldwin, New York, petitioner killed Debra Drysdale and Douglas McMullen by shooting each three times at close range with a .357 Magnum handgun. Subsequently, petitioner turned himself in to the police and admitted committing these crimes.

On September 15, 1983, petitioner was charged by Nassau County Indictment 57484 with two counts of intentional murder in the second degree and two counts of criminal possession of a weapon in the second degree, pursuant to New York Penal Law § 125.25[1] and New York Penal Law § 265.03 respectively. Following a jury trial, petitioner was convicted of all of the counts in the indictment. On June 12, 1984, he was sentenced to consecutive indeterminate prison terms of twenty years to life on each of the murder convictions and concurrent indeterminate terms of imprisonment of five to fifteen years on each conviction of criminal possession of a weapon in the second degree.

Petitioner appealed from his conviction to the New York State Supreme Court, Appellate Division, Second Department (hereinafter "Appellate Division"), raising three grounds. Petitioner claimed that he was denied a fair trial because, on the day the trial was to begin, the court denied him a two-week continuance so that he could have a particular psychiatrist, Dr. Wroth, testify on his behalf. Defendant further claimed that he was denied due process and was convicted in violation of the Double Jeopardy Clause when the trial judge sent the jury back to continue deliberations because the form of the verdict was not in accordance with the court's instructions. Finally, petitioner argued that his sentence was excessive. In an order and decision dated April 6, 1987, the Appellate Division modified petitioner's sentence, by ordering that the sentence imposed on the murder convictions run concurrently with each other instead of consecutively, and otherwise unanimously affirmed petitioner's conviction. People v. Wood, 129 A.D.2d 598, 514 N.Y.S.2d 93 (2d Dept. 1987).

By letter dated June 9, 1987, petitioner applied to the New York Court of Appeals for permission to appeal from the Appellate Division's decision affirming his judgment of conviction. In that application, petitioner raised only the first claim that he raised in the Appellate Division — that he was denied a fair trial because the court refused to grant a two-week continuance to secure the presence of Dr. Wroth, who petitioner sought to call as a witness. Petitioner did not argue in his application to the Court of Appeals, as he did in the Appellate Division, that having the jury sent back to correct its verdict denied him a fair trial and violated the Double Jeopardy Clause. In an order dated August 19, 1987, Judge Richard D. Simons denied petitioner's application for permission to appeal to the Court of Appeals. People v. Wood, 70 N.Y.2d 719, 519 N.Y.S.2d 1055, 513 N.E.2d 1323 (N.Y. 1987).

On December 23, 1997, following respondent's motion to dismiss the instant petition as untimely, this Court issued a memorandum and order dismissing the petition as time barred. In light of Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), the United States Court of Appeals for the Second Circuit vacated this Court's decision and remanded the case for further proceedings. Wood v. Artuz, No. 98-2124 (2d Cir. Sept. 25, 1998).

DISCUSSION

In his present application, petitioner raises two claims. First, he contends that the trial court's denial of the continuance denied him a fair trial and due process. Second, he contends that the court's decision to send the jury back to correct the form of the verdict violated his right to due process and his right not to be twice placed in jeopardy for the same offense.

I. PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT
  VIOLATED WHEN, ON THE DAY THE TRIAL WAS SET TO BEGIN, THE COURT
  DENIED PETITIONER'S REQUEST FOR A TWO-WEEK CONTINUANCE

As a general rule, a motion for adjournment at the start of trial is addressed to the sound discretion of the trial judge. To show abuse of that discretion, the defendant must demonstrate both that the court's denial of a continuance was arbitrary and that the denial substantially impaired his defense. See United States v. Edwards, 101 F.3d 17, 18 (2d Cir. 1996); United States v. King, 762 F.2d 232, 235 (2d Cir. 1985).

Although a defendant has a fundamental constitutional right to present witnesses in his defense, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), nevertheless the question of whether to grant a continuance in order to facilitate the calling of a particular witness falls under the general rule. King, 762 F.2d at 235. Applying the general rule stated above in the context of a denial of a continuance to secure a witness, courts have looked to four factors: (1) whether due diligence was exercised to obtain the witness; (2) whether substantial favorable evidence would be offered by the witness; (3) whether the witness is available and willing to testify; and (4) whether the denial of the continuance would materially prejudice the defendant. See United States v. Rodriguez, 15 F.3d 408, 411 (5th Cir. 1994); United States v. O'Neill, 767 F.2d 780, 784 (11th Cir. 1985); United States v. Walker, 621 F.2d 163, 168 (5th Cir. 1980).

As to diligence, petitioner's application for the continuance demonstrates that no serious effort was ever made to obtain Dr. Wroth's testimony at trial. Petitioner's trial commenced May 7, 1984. Up until May 2, 1984, petitioner insisted that he did not want any of his treating psychiatrists (of whom Dr. Wroth was one) to testify. As his defense counsel told the trial court "[Petitioner] felt it was not necessary. He felt that he would rather not have me do that." Even on May 2, five days before trial, petitioner was only considering counsel's recommendation that Dr. Wroth be contacted: "On May 2nd [petitioner] indicated that perhaps we should call . . . Wroth." It was not until the ...


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