United States District Court, Southern District of New York
October 29, 1999
TIMOTHY GILLETTE, PETITIONER,
CHARLES GREINER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Stein, District Judge.
In a Report and Recommendation dated October 4, 1999,
Magistrate Judge Andrew J. Peck recommended that petitioner's
petition for a writ of habeas corpus be denied.
After a de novo review of Magistrate Judge Peck's Report and
Recommendation dated October 4, 1999, and petitioner's objections
dated October 23, 1999,
IT IS HEREBY ORDERED that that Report and Recommendation is
adopted by this Court, and petitioner's petition for a writ of
habeas corpus is denied on the merits.
As petitioner has not made a substantial showing of the denial
of a constitutional right, a certificate of appealability will
not issue. 28 U.S.C. § 2253, as amended by the AEDPA; see also
Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam)
(discussing issuance of a certificate of probable cause under
standard prior to amendment of 28 U.S.C. § 2253); Alexander v.
Harris, 595 F.2d 87, 90-91 (2d Cir. 1979).
Pursuant to 28 U.S.C. § 1915(a) the Court certifies that any
appeal from this Order would not be taken in good faith. See
Coppedge v. U.S., 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21
REPORT AND RECOMMENDATION
Petitioner Timothy Gillette seeks a writ of habeas corpus from
his June 1995 conviction of first degree assault, for which he
was sentenced to seven and a half to fifteen years imprisonment.
Gillette's petition alleges that: (1) the trial court's jury
instructions deprived him of a fair trial under the Sixth and
Fourteenth Amendments because of the order in which the trial
court gave the charge as to a lesser included offense (Pet. ¶
12(I); Gillette Br.
at 16-20), and (2) the trial court's refusal to permit the
defense to call a detective on surrebuttal to testify to a
witness's prior inconsistent statement deprived Gillette of his
right to due process by interfering with his justification
defense (Pet. ¶ 12(II); Gillette Br. at 20-25).*fn1
For the reasons discussed below, Gillette's petition should be
denied as without merit.
On October 21, 1994, at approximately 1:00 a.m., an altercation
took place between Gillette and two off-duty New York City police
officers, Christopher Coppola and Dennis Sheehan. Gillette was
charged with attempted second degree murder, three counts of
first degree assault, and third degree criminal possession of a
weapon. (Aff. of Asst. Atty. General Keith Brown, Ex. A:
Indictment No. 10841/94; see Gov't Br. at 2.)
Officers Sheehan's and Coppola's Testimony
Officers Sheehan and Coppola were assigned to the 19th
Precinct, located on East 67th Street between Lexington and Third
Avenues. (Tr. 240, 278, 392-93, 421.)*fn2 Sheehan was 6'3" and
weighed 250 pounds, while Coppola weighed the same but was 5'10".
(Tr. 276-77, 447-48.) Gillette was 5'9" and weighed approximately
170 pounds. (Tr. 304, 448.) On the night of the incident, October
20-21, 1994, Sheehan and Coppola were off-duty and went to a
benefit, where they had a couple of beers. (Tr. 240-41, 249-50,
318-21, 394-97.) After the benefit, Sheehan and Coppola went to
two other bars. (Tr. 251-54, 324-25, 397-99, 426-27.) Sheehan
testified that he had four beers over the course of the evening.
(Tr. 250-54, 321, 324-25.) Coppola testified to drinking five or
six beers. (Tr. 431-32.) Both testified that they were not drunk
and felt "fine." (Tr. 325, 431-33; see also Tr2. 26, 86.) At
around 1:00 a.m. on October 21, 1994, they took a taxicab to go
back to the 19th Precinct to pick up Sheehan's car to drive home
to Long Island. (Tr. 254, 399-400.)
At Second Avenue and 87th Street, the cab stopped for a red
light. (Tr. 241, 257, 289, 400, 405-06, 434, 436.) Gillette
walked in front of the cab and stayed there when the light turned
green. (Tr. 400, 406, 436.) The cab driver blew his horn,
Gillette got mad and banged on the cab's hood, and the driver and
Gillette began yelling at each other. (Tr. 241, 257-58, 287, 293,
400, 405, 436-38.)
Coppola got out of the cab and told Gillette to "`get the fuck
out of here'" so he could get home. (Tr. 241-42, 258, 294-95,
400, 407, 438.) Gillette started approaching Coppola and said
"`who the fuck are you?'" (Tr. 242, 296, 401, 408, 439, 442.)
Coppola responded "`I'm a police officer. Now get the hell out of
here.'" (Tr. 242, 259, 296-97, 401, 408, 439, 442.)
When Coppola identified himself as a police officer, Sheehan
got out of the cab because he "didn't want anything else to
happen." (Tr. 242, 258, 298-99, 302-03, 329.) Gillette walked
toward Coppola, still yelling, and Coppola saw him take a
"boxcutter-type blade" out of his pocket. (Tr. 300, 401, 408-09,
442-43.) Coppola had left his gun at the precinct because he was
going out drinking (Tr. 305, 380, 395-96, 445-46), so he tried to
grab Gillette to protect himself. (Tr. 243, 260-61, 306-07, 353,
401, 408-09, 442, 444, 449.) In an instant, Coppola "felt the
heat and saw the blood spurting out of [his] face" from a bad cut
that went straight through his cheek. (Tr. 402; see also Tr.
243, 261, 450.) Coppola heard a woman scream after he was cut.
Coppola hit Gillette twice and tried to hold him, but Gillette
wrestled free. (Tr. 243, 402, 409-10, 450.) Coppola and Sheehan
both tried to hold Gillette, but Gillette wrestled out of his
shirt and out of their hold, and started running away. (Tr.
243-44, 262-64, 358, 402-03, 410.) Coppola and Sheehan gave
chase, and caught Gillette at Second Avenue and 88th Street. (Tr.
244, 264, 360, 403, 411, 456.) "There was blood everywhere." (Tr.
245; see also Tr. 264-67, 361.) Sheehan called 911 for backup
and for an ambulance. (Tr. 244-45, 265, 403.) Gillette got free
again, but was captured on First Avenue between 87th and 88th
Streets by the backup officers. (Tr. 245-48, 266-67, 269, 403-04,
516-18, 520-21, 525, 546-47; Tr2. 39-40.) The police recovered
the boxcutter from the corner of Second Avenue and 87th Street.
(Tr2. 20, 56-58, 60-61, 66-67, 75-77.) The police took Coppola to
the hospital, where he had surgery. (Tr. 405, 411-12, 552,
556-57.) Coppola has a permanent scar on his face. (Tr2. 89-90.)
Testimony of Other Witnesses to the Incident
The prosecution called one civilian witness to the incident,
Peter Friedrich. (Tr. 463.) Friedrich was walking down Second
Avenue and noticed Gillette standing in front of a cab after the
light turned green. (Tr. 465, 470.) Friedrich saw Coppola get out
of the cab and tell Gillette to get out of the way. (Tr. 466,
474.) Gillette "became very angry, and there was some yelling
back and forth." (Tr. 466, 471, 497.) According to Friedrich,
Gillette was the aggressor. (Tr. 499, 511.) Friedrich saw
Gillette reach into his back pocket but could not see if he had
anything in his hand. (Tr. 466, 475, 480, 497, 501-03.) Then
Sheehan and a woman (Martha Cabrera) who earlier had been talking
to Gillette tried to separate Gillette and Coppola. (Tr. 466,
478.) There was a "wrestling match" and Friedrich saw Coppola
with blood on his face, looking shocked. (Tr. 467-68, 481-82,
509-10.) Gillette's shirt came off and he ran away; the woman was
screaming. (Tr. 468, 482.)
The defense called a different witness to the incident, Martha
Cabrera, who testified that she and a friend, Marcy Fingerhet,
met Gillette for the first time at a pool hall earlier that
evening. (Tr2. 113-14, 123, 133.) Cabrera consumed one twenty-two
ounce bottle of St. Ives Malt liquor, Gillette drank a forty
ounce bottle of Budweiser, and they shared another forty ounce
bottle of Budweiser. (Tr2. 134-36.) Cabrera testified that
Gillette was not drunk. (Tr2. 138.) Cabrera, Fingerhet and
Gillette left the pool hall, went to a local park, and decided to
go to a restaurant on 90th Street and First Avenue. (Tr2. 115-16,
136-37.) They crossed Second Avenue at 87th Street, with the
light. (Tr2. 116.)
Cabrera testified that Gillette neither said nor did anything
to the occupants of the taxicab before Coppola got out. (Tr2.
139-40, 142.) Cabrera never heard Coppola or Sheehan identify
themselves as police officers. (Tr2. 127.) Cabrera never saw
anything in Gillette's hands during the altercation. (Tr2.
122-23, 144.) According to Cabrera, Coppola got out of the cab,
grabbed Gillette by the collar and punched him two or three times
in the face. (Tr2. 118-19, 121-22, 139, 145, 148.) Coppola
dragged Gillette to the nearby curb and continued to hit him "too
many times to count." (Tr2. 123, 145, 148, 150-51.) Cabrera tried
to separate them and asked Sheehan to intervene. (Tr2. 123-25,
148-49.) Unable to stop the fight, Cabrera called 911. (Tr2.
126-27, 152.) While making the 911 call, Cabrera noticed that her
hands and clothing were stained with blood, but did not know
where the blood came from. (Tr2. 125-26.) Cabrera was screaming.
Tariq Asghar drove the taxicab that was behind the cab in which
Coppola and Sheehan were riding. Because Asghar was arrested on
unrelated charges during the trial, the parties stipulated as to
what he would have testified. (See Tr2. 11-19, 70-72,
79-80, 158.) The trial judge read the parties' stipulation
concerning Asghar's testimony to the jury:
The second stipulation is to the effect that if
Tariq Asghar were called to testify, he would testify
That at approximately 1:15 in the morning on
Thursday, October 21, 1994, [Asghar] was driving a
yellow cab that was stopped short of the northeast
corner of Second Avenue and East 87th Street in
Stopped at a traffic light directly in front of him
in the eastern most lane of traffic was another
yellow cab. A male white was standing in front of the
first taxicab. Two men seated in the passenger
compartment of the first taxicab started yelling at
the man standing in front of the taxicab. The man
standing in front of the taxicab started yelling to
two females standing on the northwest corner of 87th
Street and Second Avenue. The two males in the rear
passenger compartment of the first taxicab exited the
taxicab and proceeded towards the man standing in
front of the taxicab. The two men from the rear
passenger compartment of the taxicab were walking in
an unbalanced manner.
Mr. Asghar then moved his cab to the southeast
corner of 87th Street and Second Avenue. The slim
female made a phone call. Mr. Asghar then noticed the
man who was in front of the cab start running
northbound on Second Avenue towards 88th Street.
During the fight, the male who was standing in
front of the cab was screaming for help.
(Tr2. 160-62, emphasis added.)
The prosecution called Sergeant Edward Blair as a rebuttal
witness. (Tr2. 166.) Blair testified that when he interviewed
Cabrera, she said that "there was screaming back and forth,
people in the cab were screaming at Mr. Gillette [and] Mr.
Gillette was screaming at the people in the cab." (Tr2. 169.) The
prosecution's second rebuttal witness, Detective Gilbert Rivera,
testified that when he interviewed Cabrera on the night of the
incident, she appeared to be drunk, and she told him that she and
Gillette "had been drinking and were drunk." (Tr2. 173-74, 176,
The defense and prosecution's cases concluded on Tuesday May
23, 1995, and the jury was instructed to return on Thursday, May
25, 1995. (Tr2. 181.) On Thursday morning, May 25, the prosecutor
informed the court that Asghar had been released the day before
and was waiting in the witness room. (Tr2. 203.) The prosecutor
informed the court that according to Asghar, the last line of the
stipulation as to his testimony was incorrect: while Asghar heard
a scream, Asghar could not identify its source. (Tr2. 203.) The
prosecutor asked to have the stipulation amended. (Tr2. 203,
208.) The defense responded that the last line of the stipulation
came verbatim from the police report (the DD-5) of their
interview with Asghar and that it was unfair to call Asghar after
the close of the prosecution's rebuttal case. (Tr2. 206-07.) The
court gave the parties the choice of amending the stipulation or
withdrawing it and having Asghar testify. (Tr2. 210-13.) Defense
counsel chose not to stipulate. (Tr2. 213.) The court explained
to the jury that the stipulation was withdrawn because Asghar was
available to testify. (Tr2. 214.)
Asghar testified that he was driving his cab and stopped behind
another taxi at a red light at Second Avenue and 87th Street on
October 21, 1994 at 1:00 a.m. (Tr2. 215-16, 220.) He saw two
passengers get out of the other cab and one person standing in
front of it. (Tr2. 216, 220-21.) As Asghar moved his cab to the
left of the cab in front of him, he noticed that the man standing
in front of the cab was yelling and waving at two girls on the
corner. (Tr2. 216-17.) Coppola and Sheehan walked towards
Gillette and said something to him, arguing with him. (Tr2. 217,
222, 224.) Asghar saw Cabrera run from the corner towards
217.) Asghar moved his cab to the far corner where he saw the
three men "throwing punches at each other," but he did not see
who threw the first punch. (Tr2. 217-20, 227.) On
cross-examination by the defense, Asghar reiterated that he never
told the police who screamed "help," and that if Detective
Berkeley took down the statement wrong, it was the detective's
"misunderstanding." (Tr2. 229-34.)
The prosecution also called Marcy Fingerhet, Cabrera's friend,
as an additional rebuttal witness. (Tr2. 235-36.) Fingerhet
testified that she and Cabrera met Gillette in a pool hall on
October 20, 1994. (Tr2. 236-37.) As they were crossing Second
Avenue and 87th Street, Fingerhet waited when Gillette and
Cabrera crossed the street as the light was changing. (Tr2.
237-38.) Fingerhet heard one of the cab's passengers tell
Gillette to get out of the way. (Tr2. 237-38.) She "turned away a
couple of seconds" and saw Coppola struggling with and shaking
Gillette. (Tr2. 238.) She did not see Coppola hit Gillette. (Tr2.
Outside the jury's presence, defense counsel sought permission
to call Detective Berkeley, who wrote the DD-5 in which Asghar
stated that Gillette had screamed:
[DEFENSE COUNSEL]: Your Honor, given the fact that
Mr. Asghar has been allowed to testify without any
prior notice, I am requesting an opportunity to call
Det. Berkeley as a surrebuttal witness. I believe his
testimony is significant and I believe that, that the
fact that Mr. Asghar is now retreating from his
previous statement set forth in the DD-5 [that] it
was Mr. Gillette as opposed to one of the other
participants or bystanders involved in this matter,
is of the utmost significance in terms of Mr.
Gillette's defense. If it was somebody else screaming
for help, it has one meaning. If it was the defendant
who was screaming for help, it goes directly to a
claim of justification.
THE COURT: All right, I am satisfied that you have
made it clear to the jury, and even Mr. Asghar has
made it clear to the jury, he may have well have said
that to the detective, but that isn't what he meant,
and I see no purpose in delaying the proceeding for
the purpose of calling the detective.
Your application is denied. You have an exception. .
. . I am satisfied the record is clear, one, it is on
the DD-5; and two, what [Asghar's] explanation of the
reason why it's on the DD-5.
[DEFENSE COUNSEL]: Your Honor, the fact the witness,
that the prosecution's witness has had an opportunity
to try to explain a prior inconsistent statement
should not prevent me from calling a rebuttal, or in
this case surrebuttal witness as to a prior
inconsistent statement. The fact is that Mister —
THE COURT: You have made your record. . . . You have
an exception to my ruling.
The Jury Charge
The trial court informed counsel during the charge conference
that he would charge, in the alternative, second degree attempted
murder, first degree assault (with intent to cause serious
physical injury), and first degree assault (depraved
indifference). (Tr2. 184-86.) Defense counsel requested that the
court also submit a lesser-included charge of second degree
assault on the theory of recklessness. (Tr2. 192.) The court
acknowledged the defense's entitlement to that charge:
Yes, it seems to me that you would be entitled to
that [Penal Law] 120.05, Subdivision 4. So we would
amend the verdict sheet so that after the third count
it would read, if you find the defendant
guilty, cease your deliberations and report your
verdict. If you find the defendant not guilty,
proceed to consider whether he is guilty or not
guilty of the lesser-included charge of assault in
the second degree.
(Tr2. 192.) Defense counsel, however, urged the court to read the
lesser-included charge after first degree assault (with intent to
cause serious injury). (Tr2. 193.) Defense counsel argued that
"Assault in the second degree on the theory of recklessness is a
lesser-included charge of that charge of assault in the first
degree, intentional" and thus should be considered before the
first degree assault (depraved indifference) charge. (Tr2. 193.)
The court replied:
I am just putting it in a different order. What I am
doing is submitting the greater charges first and the
lesser charges last. So, it is both a lesser charge
of assault in the second degree under the second
count, and the lesser charge of assault in the second
degree under the third count, and I am telling the
jury to reach that last because I am submitting the
charges in the alternative.
(Tr2. 193, emphasis added.) Defense counsel excepted. (Tr2.
The court submitted four counts to the jury, in the
alternative: second degree attempted murder, two counts of first
degree assault, and one count of second degree assault. (Tr2.
326-27.) The court explained to the jury that "in the alternative
. . . means that you may find the defendant not guilty of all of
the counts, but if you find him guilty, you may only find him
guilty of one of those counts." (Tr2. 327.) The court ordered the
jury to first examine the attempted murder count, followed by
first degree assault (intentional), then first degree assault
(depraved indifference), and lastly, second degree assault
(reckless). (Tr2. 357-58; see also Tr2. 327-32, 333-34, 343-48,
348-53, 353-55.) The court also instructed the jury on the
defense of self-defense/justification. (Tr2. 335-43.)
Verdict and Sentence
On May 25, 1995, the jury found Gillette not guilty of
attempted murder and first degree assault (intentional), but
convicted Gillette on the third count of first degree assault
(depraved indifference). (Tr2. 405.) The court sentenced Gillette
as a predicate felon to seven and a half to fifteen years
imprisonment, the maximum sentence for the offense. (6/21/95
Sentence Tr. 2-3, 10, 15.)
Gillette's Direct Appeal
Gillette appealed his conviction to the First Department.
(Brown Aff. ¶ 3 & Ex. B: Gillette 1st Dep't Br.) The First
Department affirmed Gillette's conviction on October 15, 1998.
People v. Gillette, 254 A.D.2d 121, 680 N.Y.S.2d 207 (1st Dep't
Since defendant was convicted of assault in the
first degree on the theory of "depraved
indifference" but was acquitted of the crimes of
attempted murder in the second degree and assault
in the first degree on the theory of intent to
cause serious physical injury, the court's
erroneous submission to the jury of assault in the
second degree as a lesser included offense under
the count of assault in the first degree under the
"depraved indifference" count instead of the
"intent" count was harmless error. Contrary to
defendant's suggestion, he was not entitled to have
the counts submitted in an order that might lead
the jury "to convict defendant of a lesser crime
than his conduct actually warranted."
The court properly exercised its discretion in
denying defendant permission to call a detective in
sur-rebuttal. The circumstances of the witness's
purported prior inconsistent statement made to this
detective were exhaustively explored, and the
detective's testimony would have added nothing.
People v. Gillette, 254 A.D.2d at 122, 680 N.Y.S.2d
at 208 (citations omitted).
On March 2, 1999, the New York Court of Appeals denied leave to
appeal. People v. Gillette, 93 N.Y.2d 873, 689 N.Y.S.2d 435,
711 N.E.2d 649 (1999).
Gillette's Present Habeas Petition
Gillette's habeas petition, dated March 23, 1999 and received
by the Court's pro se office on April 5, 1999, raises the same
two claims that he presented to the First Department: (1) the
trial court's submission of second degree reckless assault as a
lesser included offense under the wrong count of the indictment
deprived Gillette of a fair trial (Pet. ¶ 12(I); Gillette Br. at
16-20); and (2) the court's refusal to permit the defense to call
a detective to testify to a witness's prior inconsistent
statement denied Gillette due process by interfering with his
justification defense (Pet. ¶ 12(II); Gillette Br. at 20-25).
Indeed, Gillette's petition merely attaches his counsel's brief
to the First Department, with no new or independent argument.
I. THE TRIAL COURT'S CHARGE TO THE JURY DID NOT VIOLATE
GILLETTE'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL
Gillette claims that the trial "court's erroneous refusal to
submit the lesser offense under the proper count in the
indictment deprived [Gillette] of a fair trial" under the Sixth
and Fourteenth Amendments. (Gillette Br. at 17.)
It is well-established that a federal habeas court "is limited
to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) ("We have
stated many times that `federal habeas corpus relief does not lie
for errors of state law.'") (quoting Lewis v. Jeffers,
497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)); see
also, e.g., Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079
at *4 (S.D.N.Y. Sept.17, 1998) (Cote, D.J. & Peck, M.J.); James
v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April
29, 1998) (Cote, D.J. & Peck, M.J.); Simmons v. Ross,
965 F. Supp. 473, 480 (S.D.N.Y. 1997).
As the Second Circuit has stated: "In order to obtain a writ of
habeas corpus in federal court on the ground of error in a state
court's instructions to the jury on matters of state law, the
petitioner must show not only that the instruction misstated
state law but also that the error violated a right guaranteed to
him by federal law." Blazic v. Henderson, 900 F.2d 534, 540 (2d
Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d
Cir. 1985)); see also, e.g., Cupp v. Naughten, 414 U.S. 141,
146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Ellison v. Hoke,
No. 93 CV 3048, 1995 WL 561344 at *3 (E.D.N.Y. Sept.15, 1995);
Godfrey v. Irvin, 871 F. Supp. 577, 580 (W.D.N.Y. 1994).
Failure to give a properly requested jury charge does not by
itself violate a petitioner's right to due process. See, e.g.,
Blazic v. Henderson, 900 F.2d at 541 ("A mere error of state law
does not deny a defendant his right to due process."); Schaefer
v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied,
404 U.S. 939, 92 S.Ct. 277, 30 L.Ed.2d 251 (1971). "For an erroneous state
jury charge to result in a federal constitutional deprivation,
`the ailing instruction by itself [must have] so infected the
entire trial that the resulting conviction violates due
process.'" Blazic v. Henderson, 900 F.2d at 541 (quoting Cupp
v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400); see also, e.g.,
Casillas v. Scully, 769 F.2d at 63 ("In order to obtain a writ
of habeas corpus in federal court on the ground of error in a
state court's instructions to the jury on matters of state law,
the petitioner must show not only that the instruction misstated
state law but also that the error violated a right guaranteed to
him by federal law."); Carmona v. Artuz, 96 Civ. 8045, 1997 WL
876737 at *11
(S.D.N.Y. Oct.7, 1997) ("Jury charges that contain errors, even
if they lead to the jury misapplying state law, do not ordinarily
give rise to federal habeas corpus relief in non-capital cases. .
. . Rather, an erroneous jury charge must have `infected the
entire trial' to be a cognizable claim in a habeas corpus
proceeding."), report & rec. adopted, 96 Civ. 8045, 1998 WL
213781 (S.D.N.Y. April 29, 1998); Ellison v. Hoke, 1995 WL
561344 at *3; Godfrey v. Irvin, 871 F. Supp. at 581. The
challenged instruction is not to be viewed in isolation, but "in
the context of the overall charge." Cupp v. Naughten, 414 U.S.
at 147, 94 S.Ct. at 400; see also, e.g., Vargas v. Keane,
86 F.3d 1273, 1277 (2d Cir.), cert. denied, 519 U.S. 895, 117
S.Ct. 240, 136 L.Ed.2d 169 (1996); Bramble v. Smith, 96 Civ.
5905, 1998 WL 395265 at *17 (S.D.N.Y. July 15, 1998); Carmona v.
Artuz, 96 Civ. 8045, 1997 WL 876737 at *11; Godfrey v. Irvin,
871 F. Supp. at 581. As the Supreme Court has observed, "[a]n
omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law," and thus the
petitioner's "burden is especially heavy." Henderson v. Kibbe,
431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977);
accord, e.g., Bramble v. Smith, 1998 WL 395265 at *17.
While Gillette's First Department brief claims that the trial
court's error in the order of the jury charge deprived him of a
fair trial in violation of due process (Gillette Br. at 17), he
does not cite a single federal case in which the order of a jury
charge was held to violate due process. Nor has this Court's
research found such a case. There is no due process violation
from the order in which jury instructions are given.
Even if there could be a case in which the order of jury
instructions caused a due process violation, this is not such a
cause. The trial court here instructed the jury to consider the
four counts in the alternative. (Tr2. 326-27.) They were
instructed first to determine whether Gillette was guilty of
second degree attempted murder; if not guilty, to consider first
degree assault (intentional); if not guilty, to consider first
degree assault (depraved indifference); and if not guilty, to
consider second degree assault (reckless). (E.g., Tr2. 357-58;
see page 11 above.) Gillette contends that because second
degree assault is a lesser included offense of first degree
assault (intentional), it should have been charged and considered
before first degree assault (depraved indifference). (Gillette
Br. at 20.)*fn4
Viewed in the context of the entire charge, as this Court must,
the trial court's placement of the lesser included offense charge
as the last charge for the jury to consider was not
constitutional error. The ordering of the charge did not infect
the entire trial. The trial court placed the charges so that the
jury first considered the more serious counts (attempted murder
and two counts of first degree assault),
and then the lesser charge of second degree assault. (Tr2. 193,
quoted at page 10 above.) Ordering the charges from greater to
lesser here made perfect sense, and was easy for the jury to
follow. See United States v. Woodson, No. 87-5087, 838 F.2d 468
(table), 1988 WL 4584 at *2 (4th Cir. 1988) ("the better practice
would have been to instruct the jury to consider the charges in
order of their severity").
Gillette does not claim that if the jury found him guilty of
second degree assault as a lesser included offense of first
degree assault (intentional), it could not have considered the
first degree assault (depraved indifference) count. (See
Gillette Br. at 20.) The most Gillette can say is that:
Had the court properly submitted the lesser offense
under intentional assault, count two of the
indictment, the jury would have considered, and
undoubtedly convicted appellant of, reckless assault
prior to turning to the final count, depraved
indifference assault. With a guilty verdict in hand,
the outcome of deliberations on the final count might
well have been different, with jurors either
acquitting appellant outright of depraved
indifference assault or, at a minimum, unable to
agree on a verdict.
(Gillette Br. at 20.) Thus, Gillette's approach would have
required the jury to consider second degree assault and even if
it found Gillette guilty of that lesser charge, then to consider
first degree depraved indifference assault. That is less
efficient than the trial court's approach. Gillette does not
claim that the evidence was not sufficient to find him guilty of
first degree depraved indifference assault. His hope for a
compromise verdict or hung jury if the jurors first found him
guilty of the lesser charge is speculative, and insulting to the
jury. It does not state a due process claim.
In any event, before there can be constitutional error in the
jury charge, Gillette must show that the charge was erroneous as
a matter of state law. (See cases cited on pages 370-71 above.)
The New York Court of Appeals has upheld ordering jury
instructions in such a way that the jury considers the greater
counts before the lesser counts.
In People v. Johnson, 87 N.Y.2d 357, 639 N.Y.S.2d 776,
662 N.E.2d 1066 (1996), the trial court instructed the jury to first
consider, in the alternative, intentional murder and then
depraved mind murder. See People v. Johnson, 87 N.Y.2d at 359,
639 N.Y.S.2d at 776, 662 N.E.2d 1066. If the jury found the
defendant not guilty on these two counts, they were then
instructed to consider first-degree manslaughter (lesser included
offense of intentional murder) followed by second-degree
manslaughter (lesser included offense of depraved mind murder).
Id. In upholding the trial court's instructions, the court
noted that "[n]othing contained in article 300 of the Criminal
Procedure Law . . . directs the order in which the jury should
consider the various offenses submitted to it. Its provisions
neither authorize nor proscribe the manner in which the jury . .
. [is] to consider the inconsistent greater and lesser included
offenses. . . ." People v. Johnson, 87 N.Y.2d at 360, 639
N YS.2d at 777, 662 N.E.2d 1066.
The challenged jury charge in this case is equivalent to the
charge in Johnson. Both juries were instructed to consider, in
the alternative, the greater offenses before considering the
lesser included offenses. As the New York Court of Appeals
explained, "the jury's consideration of first the greater and
then the lesser offenses properly allows the jury to consider the
offenses in decreasing levels of culpability," and allows the
jury "to render a verdict that fully reflects defendant's
culpability." People v. Johnson, 87 N.Y.2d at 360-61, 639
N YS.2d at 777, 662 N.E.2d 1066. The trial court's charge here,
which directed the jury to consider, in the alternative, the
counts of greater culpability before considering the lesser
included offense, was proper under New York law. Therefore, no
constitutional violation occurred.
Gillette was not deprived of his due process right to a fair
trial under the Sixth and Fourteenth Amendments by the trial
court's ordering of the jury charge.
II. GILLETTE'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE
EXCLUSION OF THE SURREBUTTAL TESTIMONY OF DETECTIVE BERKELEY
"Few rights are more fundamental than that of an accused to
present witnesses in his own defense." Chambers v. Mississippi,
410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).
"Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment, or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants `a meaningful opportunity to
present a complete defense.' . . . [A]n essential component of
procedural fairness is an opportunity to be heard." Crane v.
Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d
636 (1986) (citations omitted).*fn5
Nevertheless, the Supreme Court has "acknowledge[d] also our
traditional reluctance to impose constitutional constraints on
ordinary evidentiary rulings by state trial courts. In any given
criminal case the trial judge is called upon to make dozens,
sometimes hundreds, of decisions concerning the admissibility of
evidence. . . . [T]he Constitution leaves to the judges who must
make these decisions `wide latitude' to exclude evidence that is
`repetitive . . ., only marginally relevant' or poses an undue
risk of `harassment, prejudice [or] confusion of the issues.'"
Crane v. Kentucky, 476 U.S. at 689-90, 106 S.Ct. at 2146.*fn6
"Moreover, we have never questioned the power of States to
exclude evidence through the application of evidentiary rules
that themselves serve the interests of fairness and reliability —
even if the defendant would prefer to see that evidence
admitted." Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. at
2146. Whether the exclusion of evidence violates a defendant's
"right to present a defense depends upon whether the omitted
evidence [evaluated in the context of the entire record] creates
a reasonable doubt that did not otherwise exist. Thus, where `the
verdict is already of questionable validity, additional evidence
of relatively minor importance might be sufficient to create a
reasonable doubt.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir.
1996) (citations omitted, brackets in original); see also, e.g.,
McLean v. McGinnis, 189 F.3d 461, 1999 WL 642925 at *2 (2d Cir.
1999); Williams v. McCoy, 7 F. Supp.2d 214, 222 (E.D.N.Y. 1998);
Deutsch v. Jacobson, 97 Civ. 2387, 1997 WL 381930 at *3
(S.D.N.Y. July 8, 1997).
The Court cannot say that the trial court's refusal to allow
Gillette to call Detective Berkeley, evaluated in the context of
the entire record, created a reasonable doubt that did not
otherwise exist or deprived Gillette of a meaningful opportunity
to present a complete defense.
The jury heard the original stipulation concerning Asghar's
testimony, including this sentence: "During the fight, the male
who was standing in front of the cab was screaming for help."
(Tr2. 161-62, emphasis added.) When Asghar testified, however, he
said he could not tell who had screamed "help." (Tr2. 229-34.)
Asghar also testified that Detective Berkeley misunderstood
Asghar when Berkeley wrote that Asghar said Gillette screamed for
help. (Tr2. 229-34.) Gillette argues that the "subject matter of
the prior statement — whether Tariq Asghar knew that the screams
for help were coming from [Gillette] — was crucial to the defense
case. Clearly, if Asghar heard [Gillette] screaming for help, it
tended to support the testimony of Martha Cabrera that Officer
Coppola was pummeling [Gillette] for no reason before [Gillette]
raised a hand to Coppola." (Gillette Br. at 23.)
Detective Berkeley's evidence, however, would not have
materially aided Gillette's self-defense/justification defense.
Detective Berkeley's testimony would have been that contrary to
Asghar's trial testimony, Asghar said, as reflected on the DD-5
report, that "[d]uring the fight, [Gillette] was screaming for
help." (Tr2. 161-62 (stipulation), 206-07 (defense representation
that the last line of the stipulation came verbatim from the DD-5
report), 242-43.) Gillette correctly concedes that even if
Detective Berkeley so testified, Asghar's "prior inconsistent
statement itself could not be used to establish the truth that it
was [Gillette] doing the screaming." (Gillette Br. at 25.)
Gillette claims, however, that "other evidence in the case,
particularly Martha Cabrera's testimony, would have made that a
likely inference for the jurors." (Gillette Br. at 25.)
Even if the jury were to infer, as Gillette suggests, that
Gillette screamed for help, that would not materially aid
Gillette's justification defense. The DD-5 merely reflected that
according to Asghar, Gillette screamed for help "[d]uring the
fight." (Tr2. 161.) The justification defense, however, turned in
part on who started the fight, and Detective Berkeley's testimony
as to Asghar's statement would not have addressed that question.
In any event, however, the jury heard the stipulation, and the
issue of what Asghar said to Detective Berkeley and Asghar's
explanation for what Detective Berkeley wrote down were explored
at length before the jury during Asghar's cross-examination.
(Tr2. 229-34.) In addition, the jury was told it would hear
summations and be charged that day, and there was no indication
as to how soon Detective Berkeley could be summoned to court. In
light of all these factors, the trial court did not commit
constitutional error in rejecting Gillette's request to call
Detective Berkeley on surrebuttal.
Even if the Court were to assume, arguendo, that the trial
court erred in excluding Detective Berkeley's testimony, any such
error was harmless. In Brecht v. Abrahamson, the Supreme Court
held that the appropriate harmless error standard to apply on
habeas corpus review of trial errors, such as the exclusion of
evidence, is whether the error "`had substantial and injurious
effect or influence in determining the jury's verdict.'"
507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239,
1253, 90 L.Ed. 1557 (1946)); see also, e.g., O'Neal v.
McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995);
Agard v. Portuondo, 117 F.3d 696, 714 (2d Cir. 1997); Peck v.
United States, 106 F.3d 450, 454 (2d Cir. 1997); Peck v. United
States, 102 F.3d 1319, 1321 (2d Cir. 1996) (en banc) (Newman,
C.J., concurring); Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir.
1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d
317 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529-30 (10th
Cir. 1995), cert. denied, 516 U.S. 1123, 116 S.Ct. 936, 133
L.Ed.2d 862 (1996); Mercado v. Stinson, 37 F. Supp.2d 267,
276-77 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); Tyson v.
Keane, 991 F. Supp. 314, 316 (S.D.N.Y. 1998) (Scheindlin, D.J. &
Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903
at *9 (S.D.N.Y. April 29, 1998) (Cote, D.J. & Peck, M.J.); Boyd
v. Hawk, 965 F. Supp. 443, 445 (S.D.N.Y. 1997) (Batts, D.J. &
Peck, M.J.) (under the Brecht standard "a Petitioner is not
entitled to habeas relief based on trial error unless he or she
can establish that the error resulted in actual prejudice").
The exclusion of Detective Berkeley's testimony did not have a
substantial and injurious effect or influence in determining the
jury's verdict against Gillette. The witnesses to the incident,
except Cabrera, testified that Gillette was the aggressor. (See
pages 3-5 above.) Detective Berkeley's testimony that Asghar said
that Gillette screamed for help during the fight would not have
been admissible for the truth of that assertion; even if the jury
inferred that Gillette screamed for help "during the fight," that
would not shed light on who started the fight, whether Gillette's
scream for help was before or after he slashed Coppola's face
with the boxcutter, or whether Gillette could have with safety
retreated before he took out, and used, the boxcutter. Detective
Berkeley's testimony, in light of all the evidence, would not
have advanced Gillette's justification defense. Any error in its
exclusion was harmless.
For the reasons set forth above, Gillette's habeas corpus
petition should be denied on the merits.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report and Recommendation to file written
objections. See also Fed.R.Civ.P. 6. Such objections (and any
responses to objections) shall be filed with the Clerk of the
Court, with courtesy copies delivered to the chambers of the
Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to Judge
Stein. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied,
506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72, 6(a), 6(e).
October 4, 1999.