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September 30, 1999


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

  Memorandum and ORDER

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[1] (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.

Factual Background

1. Introduction

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."

2. Trial*fn1

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.

a. The Prosecution Case

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 killing her.

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 weapon possession.

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
  claim —
  (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 court's procedures.

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 witnesses).

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
  must ...

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