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March 10, 1999


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


Following a jury trial in New York Supreme Court, Kings County, petitioner pro se Daniel Morales was convicted of Manslaughter in the First Degree. Morales now petitions this Court, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. In support of his petition, Morales argues that he was denied due process when: (1) in response to a jury request for a supplemental definition of intent, the trial court refused to include an additional instruction on intoxication as well; (2) the prosecutor impeached defense witness Eric Mendez by referring to prior conversations between Assistant District Attorneys and Mendez, thereby making the prosecutor an unsworn witness; (3) the prosecutor impeached Mendez with his failure to come forward promptly after petitioner's arrest; (4) the prosecutor referred on summation to the prosecutors' prior conversations with Mendez and Mendez's failure to come forward promptly, and stated and/or suggested that Mendez was a liar; (5) at sentencing, the trial court imposed the maximum term of incarceration based on its view that the jury had already shown mercy by acquitting Morales of Murder in the Second Degree.*fn1

For the reasons set forth below, the petition is denied.


A. The Killing of Gilberto Martinez

Shortly before 8:00 p.m. on April 10, 1993, New York City Police Officers Kurt Trotman and Anthony Cantazaro received a radio call regarding an unconscious male lying on the floor of a bodega at 2233 Pitkin Avenue in Brooklyn, New York. (Supp.Tr.16.)*fn2 Upon arriving at the scene, Trotman and Cantazaro discovered a male Hispanic named Gilberto Martinez lying face up on the bodega's floor. (Id. at 16, 30.) The officers did not immediately notice any injury to Martinez, other than that he was unconscious. (Id. at 16-17.)

According to Officer Cantazaro, petitioner Daniel Morales then approached him in the bodega, identified himself, and stated that he had a licensed handgun with him in the store. (Id. at 30-31, 34.) Cantazaro asked Morales to show him the paperwork for the gun, and told Officer Trotman about Morales' statement. (Id. at 31.) Trotman responded by telling Cantazaro not to pay attention to Morales, who appeared to both officers as if he had been drinking that night and was still under the influence of alcohol.*fn3 (Id. at 31.) At that point, paramedics entered the bodega, pulled up Martinez's shirt, and discovered that he had been shot in the stomach. (Id.)

After paramedics removed Martinez from the store and placed him in an ambulance, Cantazaro went back over to Morales, who had remained in the bodega, and asked him about the paperwork for the gun. (Id. at 31.) Morales said he didn't know what Cantazaro was talking about. (Id. at 32.) In the meantime, Trotman had gone outside the bodega to assist in placing Martinez in the ambulance. (Id. at 18.) While outside the bodega, Trotman was approached by an unidentified Hispanic male who had apparently seen Cantazaro speaking with Morales. (Id. at 18.) This unidentified male told Trotman that, earlier that evening, Morales had been waving a gun at people and firing it outside the bodega. (Id. at 18-19, 24.) Trotman then went back in the bodega and told Cantazaro that they should arrest Morales. (Id. at 19, 32.) After Cantazaro arrested and handcuffed Morales, another witness, Renaldo Weir, informed Trotman that, after the shooting, Morales had thrown an object under a staircase in the back of the bodega. (Id. at 20, 32.) Weir took Trotman to the staircase, where Trotman found a black revolver. (Id. at 20.)

Shortly after being removed from the bodega and transported to Brookdale Hospital, Gilberto Martinez died as a result of the gunshot wound to his stomach. (Id. at 47.) Following Martinez's death, Morales was charged with Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees. (Affidavit of Victor Barall, dated January 28, 1997 ("Barall Aff.") ¶ 5.)

B. Petitioner's Trial

1. The People's Case

At trial before Justice Michael Gary of State Supreme Court, Kings County, the People's case consisted of testimony from six witnesses. Martin Tineo, the owner of the bodega, testified that on April 10, 1994, Morales was drinking beer in the store and holding a revolver. (Tr. 221, 230.)*fn4 Believing that the gun was a toy, Tineo nonetheless told Morales to put it away, and Morales placed the gun in his jacket pocket. (Id. at 221, 226-27) Shortly thereafter Martinez entered the store, according to Tineo, and Morales and Martinez began arguing. (Id. at 221, 223-24.) Tineo then heard one or two shots and saw Martinez grab his stomach and walk to the front of store, where he collapsed. (Id. 228-30.)

Adolfo Ruiz, a friend of Martinez who went with him to the bodega that evening, testified that he was paying for certain items when he heard Martinez and Morales "mumbling" to each other in the back of the store. (Id. at 352-53, 356-58.) After hearing three or four shots that sounded as if they had come from a cap gun, Ruiz turned around and saw Martinez staggering toward the front of the store, where he collapsed. (Id. at 356-59, 375-76.) According to Ruiz, he went to the back of the store to confront Morales, who had a beer in his hand and was drinking. (Id. at 357, 382.) Morales responding by threatening to shoot Ruiz as well. (Id. at 357, 376-77.)

Renaldo Weir testified that he went to the bodega to check on that night's gambling numbers, saw a crowd of people, and noticed Martinez lying on the ground. (Id. at 310-11.) After checking Martinez for a pulse and finding that he was still alive, Weir went to the back room of the bodega where the gambling numbers were posted. (Id. at 310-12.) As he turned to exit the back room, Weir testified that he saw Morales bend down near a staircase, make a throwing or tossing motion, and then leave the room. (Id. at 312, 314, 335-37.)

Officer Trotman testified that upon arriving at the bodega, Weir directed him to the back room where, under a staircase, Trotman recovered a black .22 caliber handgun. (Id. at 282-83, 285.) Trotman further testified that he found three spent shell casings and one live shell in the store. (Id. at 285.) Dr. Frede Frederic, a medical examiner, testified based on an autopsy report that a single gunshot wound to Martinez's abdomen had perforated the aorta and caused him to die of internal bleeding (id. at 395), and Bridgette Garcia, Martinez's niece, stated that she identified Martinez's body at the medical examiner's office on the night of the shooting. (Id. at 346.) Finally, Detective Charles Hopkins of the New York City Police Department's Ballistics Unit testified that the three spent shell casings and the bullet taken from Martinez's abdomen all came from the gun that Trotman had recovered in the bodega. (Id. at 414, 416.)

2. The Defense Case and the Impeachment of Eric Mendez

The defense case relied on the testimony of two character witnesses and one alibi witness.*fn5 Carmen Ponce testified that she had known Morales for approximately seventeen years, and that his reputation in the community was that of a "an honest hard working fellow." (Id. at 431-32.) Peter McCann also testified that he knew Morales and worked with him intermittently for a period of approximately fifteen years. (Id. at 443.) According to McCann, Morales was known as an agreeable, honest, punctual and hard-working person, and was "loved" by everyone in the work community. (Id. at 444.)

Eric Mendez testified last, stating that he knew Morales from the neighborhood and that both he and Mendez were in the bodega on the evening of April 10, 1993. (Id. at 450-51.) According to Mendez's testimony, Morales and another man were playing the slot machines that were in the back of the bodega, and Mendez was waiting to take his turn. (Id. at 453.) Mendez stated that at approximately 7:45 p.m. he heard three shots. (Id.) A few seconds later Mendez and some other people in the bodega looked out from the back room and saw a Hispanic man leaning over with one knee on the ground while a tall, long-haired Hispanic man ran out of the store. (Id. at 454.) According to Mendez, during the entire time, Morales remained in the back room playing the slot machines. (Id. at 455-56.) Mendez further testified that he did not see a handgun in Morales' possession, did not see Morales argue with anyone prior to the shooting, and did not see Morales stoop in the back room or make a throwing motion. (Id.)

During the cross-examination of Mendez, Assistant District Attorney ("ADA") John Bugliosi first established that he had and another ADA, Carl Reeves, had separately called Mendez the previous evening to discuss the case. Specifically, the following exchange took place:


Q: Good morning, Mr. Mendez?

A: Good morning.

Q: You recognize my voice from last night?

A: Yes, I do.

Q: I asked you about the case?

A: Yes.

  Q: Did you also receive, before I called you, a call
    from another District Attorney from my office?

A: Yes, he told me he was your associate.

Q: You had a brief conversation with him too?

A: Yes.

  Q: Did I identify myself as a District Attorney and
    did I say that I wanted to ask you some questions
    about the case?

A: Yes.

(Id. at 457.)

Thereafter, at two points during the cross-examination, Bugliosi attempted to impeach Mendez with the substance of his prior conversations with the ADAs. Mendez testified that approximately three weeks before the trial, he spoke to Morales' mother and informed her that he was "having second thoughts" about testifying on Morales' behalf, because he didn't "really like to get involved in cases like this." (Id. at 467.) Bugliosi probed further into the conversation between Mendez and Morales' mother:

Q: She asked you to testify?

  A: She told me if I would and I told her, I'd think
    about it.

Q: Didn't she beg you to go to court?

A: Beg me?

Q: Yes?

A: No.

  Q: Do you remember having that conversation with me
    last night?

A: Yes.

Q: Didn't you use that word?

  MR. STUTMAN [Defense Counsel]: Objection, may we
    approach, Judge.

(Tr. 467.) Thereupon, the court gave the jury the following instruction: "Once again, ladies and gentlemen, I remind you that it's the question coupled with the answer that ...

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