Their efforts proved futile. Shots continued to be fired, one of
which struck Tondalayo Alfred in the arm, the other of which
entered her chest, piercing her heart and lungs and ultimately
Considerable ballistics evidence was recovered at the crime
scene, but no gun was ever found. Police experts would testify
that the four spent shells and various deformed bullets found at
the McDonald's, as well as the bullet that killed Tondalaylo
Alfred, were all fired from the same 9 mm weapon. There was no
ballistics evidence to suggest that any other gun had been fired.
b. The Defense Case
The crux of the defense case was the testimony of petitioner
Rodney Evans. He admitted that on January 13, 1989, he carried a
loaded 9 mm gun into the Nostrand Avenue McDonald's and fired it
repeatedly at Freddy. He insisted that he acted in self defense
after Freddy drew a gun and pointed it at him. Evans explained
that he greatly feared Freddy, who was reputed to have killed one
of petitioner's friends the previous month. In the intervening
weeks, various friends told Evans that Freddy was looking to kill
him too. Evans stated that he had never quarreled with Freddy and
knew of no reason why the man would wish to harm him.
Nevertheless, Evans began to carry a loaded firearm whenever he
thought he might encounter Freddy.
Evans testified that he had purchased his 9 mm gun the previous
summer in Virginia. He claimed to have been the victim of various
unreported robberies and thought a gun would afford him
protection. In fact, Evans never carried the weapon until he
heard of Freddy's threats against him.
Evans insisted that the last person with whom he discussed
these threats was Tasha George in the McDonald's restaurant on
January 13, 1989. He claimed that Ms. George asked Evans why
Freddy was looking to kill him.*fn2 Soon after, Freddy entered
the restaurant, saw petitioner, and pulled a gun from his rear
waistband. Evans testified that he could not recall if Freddy
ever fired the gun; nevertheless, he insisted that he feared for
his life and for that reason started to discharge his own
weapon.*fn3 He stated that he had never operated a gun before,
but relied on what he had seen on television in pulling back the
slide and firing a number of rounds. Evans asserted that his
intent had not been to kill Freddy but only to frighten him. He
acknowledged that after he began shooting, Freddy threw a chair
at him, but he could not recall exactly how he did this.*fn4
Evans fled from the rear of the restaurant to avoid any further
encounter with Freddy.
3. Procedural Background
The jury found Evans guilty of intentional Murder in the Second
Degree and Criminal Possession of a Weapon in the Second Degree.
On March 27, 1990, he was sentenced to concurrent terms of
twenty years to life for murder and five to fifteen years for
On direct appeal to the New York Supreme Court, Appellate
Division, Second Department, Evans filed briefs both through
counsel and pro se. He challenged (1) the trial judge's charge on
justification, interested witnesses, and intent; (2) the
sufficiency of the evidence; (3) the prosecutor's summation; (4)
the trial court's treatment of defense counsel; (5) limitations
on defense cross-examination; and (6) his exclusion from parts of
the jury selection process.
While this appeal was pending, Evans filed a pro se motion with
the trial court to vacate his conviction pursuant to N.Y.Crim.
Proc. Law § 440.10 for the prosecution's alleged failure to
disclose an autopsy tape as required by People v. Rosario,
9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied,
368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961) and N.Y.Crim. Proc.
Law § 240.45(1)(a). On March 7, 1994, the Supreme Court denied
the motion finding (1) that Evans had failed to establish the
existence of the tape at issue; and (2) that, even if the Medical
Examiner's office had prepared such a tape, the prosecution could
not be found in violation of state law for failing to produce
material in the possession of a non-investigatory department.
See People v. Evans, No. 763/89 (N.Y. Sup.Ct. Kings Co. Mar. 7,
1994). On May 20, 1994, the Appellate Division, Second
Department, summarily denied leave to appeal. See People v.
Evans, No. 94-02786 (N.Y.App. Div.2d Dep't May 20, 1994).
A few months later, on August 22, 1994, the Appellate Division
affirmed petitioner's judgment of conviction. See People v.
Evans, 207 A.D.2d 500, 615 N.Y.S.2d 914 (2d Dep't 1994). It
ruled that the evidence was sufficient to support the jury's
verdict of guilty See id. at 500, 615 N.Y.S.2d at 915. The
court also rejected petitioner's claim that he had been denied
his right to be present during material stages of his trial. It
found that part of the claim was factually unsupported. See id.
("While the defendant was not present when the challenges were
discussed, he was present during the entire voir dire and was
present when the challenges were given effect, because the
challenged jurors were excused and others were sworn in open
court"). The remainder depended on a state court ruling that did
not apply retroactively to jury selections occurring before April
7, 1992. See id. at 500, 615 N.Y.S.2d at 914 (discussing
People v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176,
592 N.E.2d 784 (1992), which held that defendant has a right to be present
when potential jurors questioned about "attitudes and feelings
concerning some of the events and witnesses involved in the very
case to be heard"). All other claims were rejected because they
"are either unpreserved for appellate review or do not warrant
reversal." Id. at 500, 615 N.Y.S.2d at 915.
On or about April 21, 1997, Evans filed his petition for a writ
of habeas corpus with the United States District Court for the
Southern District of New York. On May 21, 1997, the case was
transferred to this district.
I. Standard of Review
This court's review of Evans's petition is governed by the
standards articulated in the AEDPA, which significantly amended
the federal habeas statute, 28 U.S.C. § 2254. Subsection (d) of §
2254 now provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence in the State court proceeding.
Although the Second Circuit has yet to discuss how these
standards should be applied, a number of other appellate courts
have endeavored to provide guidance. See Long v. Humphrey,
184 F.3d 758, 760 (8th Cir. 1999); Matteo v. Superintendent,
171 F.3d 877, 891 (3d Cir. 1999), cert. denied, ___ U.S. ___, 120
S.Ct. 73, ___ L.Ed.2d ___ (1999); Davis v. Kramer,
167 F.3d 494, 500 (9th Cir. 1999), petition for cert. filed, 67 U.S.L.W.
3570 (U.S. Mar. 8, 1999) (No. 98-1427); Nevers v. Killinger,
169 F.3d 352, 361-62 (6th Cir.), cert. denied, ___ U.S. ___,
119 S.Ct. 2340, 144 L.Ed.2d 237 (1999); O'Brien v. Dubois,
145 F.3d 16, 24 (1st Cir. 1998); Green v. French, 143 F.3d 865, 870
(4th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 844, 142
L.Ed.2d 698 (1999); Neelley v. Nagle, 138 F.3d 917, 924 (11th
Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 811, 142
L.Ed.2d 671 (1999); Drinkard v. Johnson, 97 F.3d 751, 767-68
(5th Cir. 1996); Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.
1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997); see also Patterson v. Headley,
58 F. Supp.2d 274, 280-81 (S.D.N.Y. 1999) (discussing different
approaches endorsed by various circuits). Particular effort has
been made to explain what constitutes an "unreasonable
application of" Supreme Court precedent by a state court. In
Matteo v. Superintendent, 171 F.3d at 891, the Third Circuit
stated that a habeas court should ask "whether the state court
decision, evaluated objectively and on the merits, resulted in an
outcome that cannot reasonably be justified." The Ninth Circuit,
in Davis v. Kramer, 167 F.3d at 500, ruled that "a state court
decision amounts to an unreasonable application of clearly
established federal law where the state court fails to apply a
legal principle, enunciated in one or more Supreme Court
decisions, to a situation where such application is required by
the force and logic of the court's decision." The First Circuit,
in O'Brien v. Dubois, 145 F.3d at 24, held that "for the writ
to issue, the state court decision must be so offensive to
existing precedent, so devoid of record support, or so arbitrary,
as to indicate that it is outside the universe of plausible
credible outcomes." Meanwhile, the Fifth Circuit has ruled that a
state court's application of law to facts is unreasonable only if
the "state court decision is so clearly incorrect that it would
not be debatable among reasonable jurists." Drinkard v.
Johnson, 97 F.3d at 769.
Evans is not entitled to a writ of habeas corpus because he
cannot show that the state courts' rejection of his claims was an
unreasonable application of Supreme Court precedent under any of
these articulations of the § 2254(d) standard of review.
II. Right to Be Present for Jury Voir Dire
Evans submits that he was denied due process of law when (1)
the trial court arranged for the attorneys to identify their jury
challenges in the robing room outside his presence, and (2) two
jurors who indicated they had heard about Evans's case were
questioned under similar circumstances. The court finds that
petitioner's exclusion from robing room conferences did not
infringe his due process rights. In any event, it finds that
Evans waived any right to be present by failing to object to the
The Supreme Court has interpreted the Due Process Clause to
ensure a defendant's "right to be present at all stages of the
trial where his absence might frustrate the fairness of the
proceedings." Faretta v. California, 422 U.S. 806, 819-20 n.
15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); accord Kentucky v.
Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631
(1987); Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir.
1998). This is generally understood to include the impaneling of
the jury. See Fed. R.Crim. Pro. 43(a); Tankleff v.
Senkowski, 135 F.3d at 246. The right is not, however,
absolute. In United States v. Gagnon, 470 U.S. 522, 105 S.Ct.
1482, 84 L.Ed.2d 486 (1985), the Supreme Court expressly held
that due process does not require a defendant to be present for
every brief discussion involving the court, a juror, and counsel.
At issue in that case was the trial court's in camera questioning
of a sitting juror who had expressed concern about the fact that
defendant appeared to be sketching members of the jury. The
Supreme Court ruled that
the conference was not the sort of event which every
defendant had a right personally to attend under the
Fifth Amendment. Respondents could have done nothing
had they been at the conference, nor would they have
gained anything by attending. Indeed, the presence of
Gagnon and the other respondents, their four counsel,
and the prosecutor could have been counterproductive.
Id. at 527, 105 S.Ct. 1482 (internal citation omitted); see
also Kentucky v. Stincer, 482 U.S. at 745-47, 107 S.Ct. 2658
(holding that right to be present not infringed by defendant's
exclusion from hearing to determine competency of child