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February 10, 1999


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


I referred this habeas corpus petition to Magistrate Judge Peck on February 17, 1998. On August 4, 1998, Magistrate Judge Peck issued a Report and Recommendation which recommended that petitioner's request for habeas relief be denied on the grounds that while the trial court violated petitioner's Sixth Amendment Confrontation Clause Rights, the error was harmless and that the trial judge's response to the jury's question was not erroneous under New York law.

The Report and Recommendation advised the parties of their obligation to file timely objections under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). To date, no objections have been filed and I have found no clear error in the Report and Recommendation of Magistrate Judge Peck.

Therefore, I adopt the Report and Recommendation in all respects. As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996. The Clerk of the Court is directed to close this case.



Petitioner Jose Mercado was convicted of robbing Balducci's Food Store along with five others. At trial, Oneal Serrano, the Balducci's employee who masterminded the robbery, testified for the prosecution; Serrano described the robbery, but he refused to testify on direct or cross-examination as to whether Mercado was involved in the robbery. Petitioner Mercado's present habeas petition alleges that the trial court violated Mercado's Sixth Amendment Confrontation Clause rights when Serrano's testimony was not struck after he refused to answer as to whether Mercado was involved in the robbery. (Petition ¶ 12(B).) Mercado also claims that his due process rights were violated when he was charged as a principal in the robbery, but in response to a jury question during deliberations, the trial judge instructed the jury that it could convict Mercado of robbery even if he was an accomplice who remained outside the store. (Petition ¶ 12(A).)

For the reasons set forth below, I recommend that Mercado's petition be denied on the merits of both grounds.


Mercado was indicted on eight counts of robbery in the first degree and four counts of robbery in the second degree, for his participation in the July 11, 1993 robbery of Balducci's and some of its employees. (Affidavit of ADA Marisa Rieue, dated 6/5/98, ¶ 8 & Ex. B: Indictment.)

The prosecutor's opening statement alleged that Mercado and two others entered Balducci's at 9:40 P.M. on July 11, 1993, pointed guns at the store's employees and forced the manager to open the safe. (Trial Transcript ["Tr."] at 260-62.) The robbers stole $60,000 in cash, and also stole jewelry, money and credit cards from store employees. (Tr. 262.) The prosecutor stated that a store employee, Christopher Romano, would testify that he saw Mr. Mercado's face when Mercado came into Balducci's with his gun drawn. (Tr. 266.) The prosecutor concluded that the State "will prove beyond a reasonable doubt by testimony and by physical evidence that Mercado was one of the three robbers who went into Balducci's that Sunday evening in July." (Tr. 273.)

The first prosecution witness, Christopher Romano, a Balducci's employee, identified Mercado as one of the robbers inside the store. (Tr. 274-76, 278-81.)*fn1 Police officers testified to the search of Serrano's apartment and the recovery of guns, handcuffs, Balducci's bank deposit slips, money and other items, some of which had Mercado's fingerprints on them. (Tr. 533-39, 554, 835-47, 1004-06, 1012.)

Oneal Serrano's Testimony

Before the prosecution called the Balducci's employee who masterminded the robbery, Oneal Serrano, to testify, the trial court discussed issues concerning that testimony with counsel outside the jury's presence. Serrano had pled guilty, signed a cooperation agreement with the State, and been sentenced for his participation in the Balducci's robbery, although he was appealing his conviction. (Tr. 772, 870.) Serrano's counsel informed the court that Serrano would not invoke his Fifth Amendment privilege, but that Serrano "is going to refuse to answer certain questions in spite of the fact that he understands that he may be held in contempt." (Tr. 773-74.) When the court asked what those questions were, Serrano's counsel responded that "those are all of the questions that will implicate Mr. Mercado." (Tr. 775, emphasis added; accord, Tr. 783, where Serrano's counsel reiterates that Serrano "told me that he doesn't want to answer any questions which implicate Mr. Mercado.") Mercado's counsel objected to Serrano's testifying if he were not going to answer all questions. (Tr. 785-86.)

The prosecution called Serrano to the stand. (Tr. 786.) Serrano testified that in July 1993, he worked at Balducci's. (Tr. 788.) Serrano testified that he and another employee got the idea to rob the store, and Serrano obtained a set of keys to the store to facilitate the robbery. (Tr. 789.) On July 11, 1993 at 9:00 P.M., Serrano and five others met at his parents' home. (Tr. 791-92.) The six men, with handcuffs and four guns, then drove to Balducci's. (Tr. 792, 795-96, 799-800.) Three of the robbers went into Balducci's while Serrano and two others waited outside. (Tr. 796-97.) The three came back carrying money in brown bags, and then they all drove to Serrano's parents' house to divide the $60,000 robbery proceeds. (Tr. 797-98.) Each of the six men received around $10,000. (Tr. 798.)

During a break in Serrano's testimony, outside the jury's presence, the court returned to the issue of what questions Serrano would refuse to answer. (Tr. 864.) The prosecutor said he would ask Serrano who participated in the robbery, and follow up by asking whether Mercado participated. (Tr. 864-65.) Mercado's counsel stated that "Mr. Serrano has informed me categorically he will refuse to answer any questions which implicate Mr. Mercado." (Tr. 865, emphasis added.) The court asked Serrano's counsel what Serrano would do when the court directed him to answer the question, and Serrano's counsel replied that Serrano would refuse to answer, even when advised that he would be held in contempt. (Tr. 868-69.)

The court asked Mercado's counsel if he wanted a "limiting instruction" given to the jury if Serrano did refuse to answer the question: "Do you want me then to tell the jury that [Serrano's] refusal to answer cannot in any way be held against your client and that his refusal can be used only to assess the credibility of the witness?" (Tr. 869-70.) Mercado's counsel replied that he wanted that instruction. (Tr. 870.)

During the colloquy, the prosecutor noted that Serrano's grand jury testimony "named the defendant" Mercado as one of the robbers. (Tr. 866-68.)

The jury was brought in for Serrano's further testimony. (Tr. 873.) Serrano identified the guns used in the robbery, the Balducci's "money bags" and some of the money from the robbery. (Tr. 874-83.) Serrano also testified that he was arrested and indicted for the robbery, pled guilty, and was sentenced to three and a third to eleven years imprisonment. (Tr. 884-86.)

Serrano refused to answer the prosecutor's final question, concerning his accomplices:

  Q. Now, Mr. Serrano, who did you commit this robbery
  with on July 11, 1993?

A [SERRANO]: I refuse to answer that question.

  [ADA] FITZGERALD: Your Honor, I would ask you to
    instruct the witness.
  THE COURT: Mr. Serrano, that is a proper question. I
    direct you to answer it.
  THE WITNESS: I respectfully refuse, your Honor, to
    answer that question.
  THE COURT: If you refuse to obey a lawful order of
    the Court, you will be subject to additional
    criminal charges of contempt of Court. Do you
    understand that?

THE WITNESS: Yes, I do, your Honor.

Q. And do you still refuse to answer the question.

A. Yes.

(Tr. 886, emphasis added.) The trial judge then instructed the jury that Serrano's refusal to answer could not "in any way be held against [Mercado]. It is information for you to use in assessing [Serrano's] credibility and for no other purposes." (Tr. 887.)*fn2 After the jury was excused, Mercado's counsel moved to strike Serrano's entire testimony. (Tr. 887.) The trial court denied the motion. (Tr. 887.)

On cross-examination, Serrano testified that he "planned and orchestrated" and "put this whole robbery together." (Tr. 890.) Mercado's counsel established that from where Serrano waited outside Balducci's, Serrano could not see which of his group went into the store and who stayed outside. (Tr. 895, 909.) Mercado's counsel asked other questions to establish that all those involved touched the handcuffs, money bags and other items, and therefore fingerprints on those items would not show who actually went into Balducci's. (Tr. 895-909.)

On Mercado's counsel's cross-examination, as on the prosecutor's direct, Serrano refused to say whether Mercado was involved in the robbery:

Q. Do you know my client, do you know my client?

A [SERRANO]: I refuse to answer that question.

  MR. MARINO [DEFENSE COUNSEL]: Do you know if
    [Mercado was] involved in this particular case?

A. I refuse to answer that question.

  THE COURT: . . . I direct you to answer all of the
    questions that Mr. ...

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