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SUTTON v. HERBERT

February 10, 1999

WALTER SUTTON, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

Petitioner Walter Sutton brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking to overturn his conviction in County Court, Rockland County, for Manslaughter in the Second Degree. Petitioner contends that his conviction should be overturned because: 1) the trial court improperly allowed the prosecutor to admit hearsay evidence regarding uncharged crimes; 2) remarks made by the prosecutor during summation deprived him of due process under the Fourteenth Amendment to the United States Constitution; and 3) the trial court improperly denied his request that the jury be instructed on the defense of justification.*fn1 Because petitioner's claims raise no federal constitutional issues, his § 2254 habeas petition is dismissed.

BACKGROUND

Petitioner seeks to set aside a December 1, 1992 judgment of the County Court, Rockland County (Nelson, J.), convicting him, after a jury trial, of Manslaughter in the Second Degree (New York Penal Law § 125.15). Petitioner was sentenced to an indeterminate term of from 5 to 15 years imprisonment on the manslaughter conviction. Petitioner is incarcerated pursuant to that judgment. Petitioner's conviction arose from the stabbing death of his girlfriend Karen Rose ("victim" or "Ms. Rose") on October 30, 1991. The prosecution argued at trial that petitioner, having left the home he shared with Ms. Rose following an earlier argument, returned and stabbed her in the chest and forearm.

Subsequent to sentencing, petitioner filed an appeal of his conviction to the Appellate Division, Second Department, where he argued, inter alia, that the trial court improperly permitted introduction of hearsay testimony consisting of uncharged crime evidence, that the prosecutor's summation was improper, that the trial court erred in denying defendant's request for a charge to the jury on the defense of justification, and that his sentence was excessive. Each of these claims is essentially repeated here by petitioner in his § 2254 petition for writ of habeas corpus. The Appellate Division unanimously affirmed petitioner's conviction by Decision and Order on October 23, 1995. People v. Sutton, 220 A.D.2d 705, 632 N.Y.S.2d 978 (1995), 220 A.D.2d 705, 632 N.Y.S.2d 978. Petitioner sought leave to appeal to the Court of Appeals; such leave was denied on June 25, 1997. Sutton, 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065 (1997) (Table), 90 N.Y.2d 864, 661 N.Y.S.2d 191, 683 N.E.2d 1065. The instant petition was timely filed thereafter.

DISCUSSION

I. Petitioner's Claim that the Trial Court Improperly Allowed
  the Prosecutor to Admit Hearsay Evidence Regarding Uncharged
  Crimes
  A. Respondent's Contention that Petitioner Has Failed to
    Exhaust His State Court Remedies Regarding the "Uncharged
    Crime" Claim

Before discussing the merits, we first consider and reject respondent's argument that petitioner has failed to exhaust his state court remedies. The exhaustion doctrine provides that a habeas petitioner seeking to upset his state conviction on federal grounds must first give the state courts an opportunity to assess his federal claim. Daye v. Attorney General of State of New York, 696 F.2d 186, 191 (2d Cir. 1982). This means that the petitioner must alert the state court that he is asserting claims under the United States Constitution by "fairly presenting" those claims to the state court. Id. In Daye, the Second Circuit stated that, "Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts." 696 F.2d at 192. Here, petitioner's brief to the Appellate Division specifically claims a denial of "due process" related to these hearsay claims and cites the Fourteenth Amendment of the United States Constitution in support of this contention. Respondent's Exhibit B at 41-42. Thus, petitioner fairly alerted the state court to his constitutional argument and thereby exhausted his state remedies regarding this claim. Clearly, it would have been preferable for petitioner to have cited federal authority in his brief to the state appellate court. See Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991); Twitty v. Smith, 614 F.2d 325, 331 (2d Cir. 1979). However, we believe that petitioner reasonably complied with the exhaustion requirement recognized in Daye, and proceed to consider the merits of petitioner's hearsay claim.

  B. The Merits of Petitioner's Hearsay Claim Related to
    "Uncharged Crimes"

One of the basic premises underlying a federal court's review of a habeas corpus petition is that the petitioner present an argument that his or her state custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A federal court examining a habeas corpus petition does not have jurisdiction to interpret whether the state courts correctly applied state law. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus, even an erroneous evidentiary ruling does not usually rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Ayala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994). Rather, the writ should issue only where petitioner can show that the error deprived him or her of a fundamentally fair trial. Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983).

  Moreover, even if our role were to analyze the evidentiary
question, we would conclude that the state trial judge's ruling
related to "uncharged evidence" was not in error. While evidence
of unconnected, uncharged criminal conduct is inadmissible if
offered only to establish the defendant's criminal propensities,
it is

well-established that certain exceptions to this rule apply where
the evidence offered has some relevance other than merely to show
criminal propensity. Evidence of other similar acts will be
admitted if it tends to establish, inter alia: (1) motive; (2)
intent; (3) the absence of mistake or accident; (4) a common
scheme or plan; or (5) identity. Matter of Brandon, 55 N.Y.2d 206,
211, 448 N.Y.S.2d 436, 433 N.E.2d 501 (1982), 55 N.Y.2d 206,
448 N.Y.S.2d 436, 433 N.E.2d 501; People v. Ventimiglia,
52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981),
52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v.
Molineux, 168 N.Y. 264, 293, 61 N.E. 286 (1901), 168 N.Y. 264,
61 N.E. 286. Here, the trial court admitted testimony and a
domestic violence form into evidence, both showing that only a
few hours before the petitioner's fatal stabbing of the victim,
the police had responded to a domestic violence dispute between
the couple.*fn2 While the prohibition against "uncharged crime"
evidence exists when the evidence "has no bearing other than to
show that defendant is of a criminal bent or character," this
evidence goes directly to petitioner's motive for the murder,
i.e. that the attack resulted from a continuation of the argument
that had begun the night before. People v. Crandall, 67 N.Y.2d 111,
118, 500 N.Y.S.2d 635, 491 N.E.2d 1092 (1986), 67 N.Y.2d 111,
 500 N.Y.S.2d 635, 491 N.E.2d 1092. Plainly, evidence that a
police officer responding to the victim's call for assistance
offered her an opportunity to file a "criminal charge of
harassment" against petitioner for threatening her a few hours
before he caused her death is directly probative of motive.
Respondent Exhibit C at 11, 23-25. The New York appellate courts
have ruled admissible evidence of a prior dispute between an
assailant and a victim, even where the prior dispute was more
remote in time than in the instant case. People v. Carver,
183 A.D.2d 907, 907-08, 584 N.Y.S.2d 142 (1992), 183 A.D.2d 907,
584 N.Y.S.2d 142; People v. Shorey, 172 A.D.2d 634, 634-35,
568 N.Y.S.2d 436 (1991), 172 A.D.2d 634, 568 N.Y.S.2d 436; People v.
Linton, 166 A.D.2d 670, 671-72, 561 N.Y.S.2d 259 (1990),
166 A.D.2d 670, 561 N.Y.S.2d 259.*fn3

Moreover, even if these evidentiary rulings were in error, we cannot say that admission of this evidence rendered the trial "fundamentally unfair." We emphasize that, at trial, petitioner admitted that he stabbed the victim, but claimed that he did so in self-defense. We do not see how admission of evidence that there was a prior altercation between petitioner and the victim could prejudice petitioner sufficiently to render his trial "fundamentally unfair." Thus, because admission of this evidence at ...


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