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.)
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.
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?
Q: You recognize my voice from last night?
Q: I asked you about the case?
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?
Q: Did I identify myself as a District Attorney and
did I say that I wanted to ask you some questions
about the case?
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
Q: She asked you to testify?
A: She told me if I would and I told her, I'd think
Q: Didn't she beg you to go to court?
Q: Do you remember having that conversation with me
Q: Didn't you use that word?
MR. STUTMAN [Defense Counsel]: Objection, may we
(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 ...