The opinion of the court was delivered by: Raggi, District Judge.
Rodney Evans, proceeding pro se, petitions this court for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Evans was
convicted in 1990 after a jury trial of Murder in the Second
Degree, N.Y. Penal Law § 125.25 (McKinney 1998), and Criminal
Possession of a Weapon in the Second Degree, N.Y. Penal Law §
265.03 (McKinney 1998). He is presently incarcerated, serving
concurrent prison terms of twenty years to life for murder and
five to fifteen years for weapon possession. He now challenges
his conviction on the grounds (1) that he was denied his right to
be present at a material stage of his trial, specifically,
portions of jury selection; (2) that the trial court denied him a
fair trial by failing accurately to charge the jury on
the law; and (3) that prosecutorial misconduct in summation
further denied him a fair trial.
Respondent initially moved to dismiss the petition as
time-barred. This court granted the motion, relying on the
"reasonable" time standard endorsed by the Court of Appeals in
Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997). See Evans v.
Artuz, 68 F. Supp.2d 188 (E.D.N.Y. 1999). The Second Circuit
subsequently reconsidered Peterson in Ross v. Artuz,
150 F.3d 97 (2d Cir. 1998) (granting prisoners whose convictions became
final before the April 24, 1996 effective date of the
Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L.
No. 104-132, 100 Stat. 1214, 1220 (1996), a one-year grace period
to file for habeas relief). In light of Ross, the Circuit
vacated this court's dismissal of Evans's petition and remanded
the case for further proceedings. See Evans v. Artuz, No.
97-2764 (2d Cir. Sept. 25, 1998).
Both sides have now fully briefed the merits of Evans's claims.
The court has carefully considered the submissions of the parties
and the record of proceedings in the state courts. For the
reasons stated herein, it concludes that Evans's claims are
without merit and that his petition for a writ of habeas corpus
must be denied.
At approximately 5:30 p.m. on January 13, 1989, a number of
young people, most in their teens and early twenties, left
Midwood High School in Brooklyn where they had just attended a
basketball game and went to the nearby McDonald's restaurant at
2154 Nostrand Avenue. For the better part of an hour, these high
school and college students ate, talked, and generally enjoyed
themselves. Suddenly, gunshots were heard, and within moments,
18-year old Tondalayo Alfred was fatally wounded, the innocent
victim of an attempt by 18-year old petitioner Rodney Evans to
kill a neighborhood youth known simply as "Freddy."
Rodney Evans conceded that he fired the shot that killed
Tondalayo Alfred on January 13, 1989. The key point in dispute at
his trial was whether he had acted in a reasonable attempt to
defend himself against Freddy.
To support its theory that Evans was guilty of second degree
homicide committed without justification, the prosecution relied
on the testimony of three eyewitnesses, Tasha George, Joann Ross,
and the victim's younger sister, Tobia Alfred. Ms. George, the
only one of the three who knew both Evans and Freddy, testified
that she had a brief, inconsequential conversation with
petitioner in the McDonald's on January 13, 1989. Then, as she
was getting ready to leave the restaurant, she saw Freddy, whom
she also knew, standing by the Nostrand Avenue entrance. Ms.
George was about to greet Freddy when she heard a gunshot. She
turned and saw that petitioner was firing at Freddy. Ms. George
saw Freddy, who was unarmed, twist a restaurant chair out of its
base and then use it to shield himself from the gunfire. Ms.
Ross, who did not know Evans but who would later identify him in
a police lineup, testified that she also saw petitioner fire his
gun repeatedly toward the front of the restaurant. There were no
shots fired from the opposite direction. The third eyewitness,
Tobia Alfred, testified that she too heard gunfire in the
McDonald's. She turned in its direction and caught a glimpse of a
young man shooting a 9 mm semi-automatic pistol. She could not
identify the shooter since she and her older sister, Tondalayo,
quickly sought cover under their table.
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.
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.
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.
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
So in this case, Evans's absence from the formal exercise of
jury challenges in the robing room did not deny him due process
of law. He was able to view every potential juror as he or she
answered voir dire questions in open court. He had the chance to
consult with his attorney about challenges before the attorney
retired with the court to the robing room. He was present when
the court clerk excused certain jurors and seated others. In sum,
his absence from the robing room during the formal exercise of
challenges did not affect his ability to participate meaningfully
injury selection or otherwise frustrate the fairness of the
proceedings against him. Indeed, it was of no more significance
than a defendant's absence from a sidebar conference, at which
defense counsel routinely announce their jury challenges without
their clients. See generally Gaiter v. Lord, 917 F. Supp. 145,
152 (E.D.N.Y. 1996) ("the Federal Constitution does not require a
defendant's presence at sidebar conferences"); accord Brown v.
Edwards, No. 96 Civ. 3444, 1998 U.S. Dist. LEXIS 395, at * 17
(S.D.N.Y. Jan. 15, 1998).
Neither was Evans denied due process by the court's in camera
questioning of two jurors who said they had heard about his case.
This was a relatively brief interlude in the larger voir dire of
the jury panel, all of which did take place in Evans's presence.
As in United States v. Gagnon and Kentucky v. Stincer,
petitioner's interests were represented at the in camera
proceeding by his trial counsel. See also United States v.
Aiello, 771 F.2d 621, 629-30 (2d Cir. 1985) (recognizing trial
judge's broad discretion to conduct in camera interrogation of
sitting jurors, although preferable for counsel to be present at
inquiry). Certainly, Evans does not suggest that his presence
would have affected the court's decision to excuse for cause the
one juror who stated that she knew his brother. Cf. Kentucky v.
Stincer, 482 U.S. at 747, 107 S.Ct. 2658 ("no indication" that
defendant's "presence at the competency hearing . . . would have
been useful in ensuring a more reliable determination.") As to
the other juror, although Evans may not have personally observed
her discuss the news reports she had seen about the case or heard
her state that she could nevertheless serve fairly and
impartially, he had the opportunity to assess her demeanor during
other parts of the voir dire. This, coupled with his attorney's
participation in the robing room conference, sufficed to ensure
that any subsequent decision about peremptory challenges was made
in an informed and fair manner.
Assuming arguendo that due process did entitle Evans to attend
the robing room conferences in his case, he would still not be
entitled to habeas corpus relief since his failure to object to
these proceedings can be viewed as a waiver of his right
to be present.*fn5 In United States v. Gagnon, the Supreme
Court ruled that
The district court need not get an express "on the
record" waiver from the defendant for every trial
conference which a defendant may have a right to
attend . . . A defendant knowing of such a discussion