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.
REPORT AND RECOMMENDATION
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 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
THE WITNESS: Yes, I do, your Honor.
Q. And do you still refuse to answer the question.
(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. ...