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DURANT v. STRACK
June 19, 2001
THURMAN DURANT, PETITIONER,
WAYNE STRACK, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Block, District Judge.
Petitioner Thurman Durant ("Durant") filed this petition
pursuant to 28 U.S.C. § 2254 challenging his January 1996
judgment of conviction in New York Supreme Court, Queens County,
for criminal possession of a controlled substance in the third
degree and in the seventh degree. The petition asserts that the
trial court (1) permitted the prosecutor to violate Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
and (2) violated Durant's Sixth Amendment right to a public
trial. On May 19, 2000, the Court referred the petition to
Magistrate Judge Roanne L. Mann ("Judge Mann"). Judge Mann
submitted a Report and Recommendation ("R & R") on April 3, 2001
recommending that the petition be granted on the first ground
only. The Court is in receipt of Durant's objections to Judge
Mann's recommendation concerning the second ground for the
petition. Respondent has not filed any objection to the R &
"If either party objects to the magistrate judge's
recommendations, a judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." United States v. Tortora, 30 F.3d 334, 337 (2d Cir.
1994) (internal quotations omitted). "[A] party generally waives
judicial review of an issue when he or she fails to make timely
objection to a magistrate judge's report, as long as all parties
receive clear notice of the consequences of their failure to
object." DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000)
(citing Small v. Secretary of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). "This rule, however,
is a nonjurisdictional waiver provision, and its violation may
be excused in the interests of justice." Id. (citing Roldan
v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)). Further, the Court
will excuse the failure to object and conduct a de novo review
if it appears after reading the R & R that the magistrate judge
may have committed plain error in ruling against the defaulting
party. See Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 174 (2d Cir. 2000).
The Court has reviewed the R & R de novo in respect to
Durant's objections, and concurs with Judge Mann. It is
sufficiently apparent in the record that the decision of the
trial judge to close the courtroom during the testimony of the
two undercover police officers took into consideration the
alternative suggested by trial counsel for Durant. See Bowden
v. Keane, 237 F.3d 125, 132 (2d Cir. 2001). Competent evidence
existed to justify this limited closure. See id. (quoting
United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994))
("specific findings by the [trial] court are not necessary if we
can glean sufficient support for a partial temporary closing
from the record"). Because respondent has not filed objections,
the Court has not conducted a de novo review in respect to the
Batson issue; however, the Court has read the R & R and
finding no plain error adopts the recommendation to grant the
In this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, petitioner Thurman Durant ("petitioner" or
"Durant") seeks relief from a state drug conviction. Durant
claims that (1) the prosecution excluded a prospective juror on
the basis of her race, in violation of the Equal Protection
Clause of the Fourteenth Amendment; and (2) the trial court
closed the courtroom, in violation of the Public Trial Clause of
the Sixth Amendment.
The Honorable Frederic Block referred the petition to the
undersigned for a report and recommendation. For the reasons
that follow, this Court recommends that the petition be granted
on the first ground only.
The Evidence at Trial and Durant's Conviction
Late in the evening of January 28, 1995, Durant was arrested
in a Queens County "buy-and-bust" operation. An undercover
police officer ("UC 26210") approached a man, later identified
as Jerome Robinson, and told Robinson that he was looking for
three five-dollar packages of crack cocaine. Trial Transcript
("Tr.") at 366-68. Robinson told him to wait at that location
and he would get him something. Id. at 369. Shortly
thereafter, a "back-up" or "ghost" undercover officer ("UC
12328") observed Robinson entering a Chinese restaurant and
handing money to Durant in exchange for a clear plastic bag
containing something orange. Id. at 430-35. When Robinson
returned to UC 26210, he sold the officer three vials of crack
with orange caps, in exchange for $15 in pre-recorded bills.
Id. at 373-74. Detective Kathleen Kragel then arrested
Robinson and recovered the pre-recorded buy money from his
person. Id. at 502-05. Detective Joseph Savine arrested Durant
and found in his possession 57 filled vials with orange caps, as
well as a baggie containing 59 filled vials with green caps.
Id. at 473-77. Subsequent laboratory analyses of the vials
revealed that the three vials Robinson sold UC 26210 contained
cocaine, as did the 116 vials seized from Durant. Id. at
A Queens County grand jury charged Durant with criminal sale
of a controlled substance in the third degree (N.Y. Penal Law §
220.39) and criminal possession of a controlled substance in the
third and seventh degrees (N.Y. Penal Law §§ 220.16 and
220.03). Following a jury trial in late 1995, Durant was found
guilty of possessing the 116 vials of crack cocaine, but not
guilty of the sale of the three vials to the undercover officer.
Tr. at 704-05. On January 5, 1996, Durant was sentenced to a
prison term of nine to eighteen years.
After opening statements to the jury, the trial court held an
evidentiary hearing on the prosecution's motion to close the
courtroom during the testimony of the two undercover police
officers, UC 26210 and his back-up, UC 12328. Both men testified
that they were still actively working as undercover officers in
the vicinity of Durant's arrest. Tr. at 292, 305, 324-25. In
addition, they both had several cases pending in the Kew Gardens
courthouse in which Durant's case was pending. Id. at
293, 320-21. In fact, UC 26210 stated that he had seen some of
the subjects of those cases around the courthouse as recently as
two weeks earlier. Id. at 294, 303. Both officers testified
that in the past they had been threatened by people who believed
that they were police officers. Id. at 309, 323, 328. For the
above reasons, the officers feared for their safety if the
courtroom remained open, because their involvement in law
enforcement would be revealed. Id. at 294-95, 323-24.
Following the above testimony, and in the course of argument
by counsel, Durant's attorney asked that he be heard on
alternatives to closure of the courtroom. Id. at 329. Defense
counsel proposed that a court officer be stationed outside the
courtroom to prevent entry by anyone with a pending drug case in
the upstairs trial part that heard solely drug cases. Id. at
330. In response, the prosecutor argued that defense counsel's
alternative was "entirely unrealistic" because the court officer
would have to question those attempting to enter the courtroom
and rely on the truthfulness of their answers. Id. at 332.
Having considered the testimony and the arguments of counsel,
the judge thereupon granted the motion to close the courtroom
during the testimony of the two undercover officers, concluding
that the prosecution had established compelling reasons to
justify such partial closure. Id. at 334.*fn1 The judge did
not expressly address defense counsel's proposed alternative or
the prosecution's challenge to the adequacy of that proposal.
During jury selection, at the end of the second round of voir
dire, the prosecutor exercised three peremptory challenges
against three jurors, two of whom were black. Id. at 195, 197.
In response, defense counsel made a motion pursuant to Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
noting that the prosecutor had challenged two of the three
blacks on the panel, Prospective Juror Number 3, Rudy Porter,
and Prospective Juror Number 4, Shaliya Brooks.*fn2 Tr. at
197-98. After hearing argument on whether the defense had made a
prima facie showing of intentional discrimination, and over the
prosecutor's continued objection that no such showing had been
made, the judge directed the prosecutor to provide race-neutral
reasons for striking the two jurors. Id. at 199. Turning first
to Mr. Porter, the prosecutor claimed that she had challenged
him "due to his job in [New York City's Department of] Human
Resources and the fact that he deals with Human Resources
cases. . . ." Id. With respect to Ms. Brooks, the prosecutor
explained that she was challenging her because of "her demeanor
with me, the way she was looking at me, the interaction I had
with her." Id. at 200. When the judge pressed the prosecutor
to be more specific in explaining her challenge to Ms. Brooks,
the following colloquy ensued:
[THE PROSECUTOR]: She was making faces at me
while I was questioning her.
[THE PROSECUTOR]: Yes, Judge. And her questions —
I find that the tone of her responses were [sic]
very hostile. Based on that.
THE COURT: We must not have been listening and
watching the same person because I didn't see any
faces or hear any hostile answers.
[THE PROSECUTOR]: Well, Judge, I was the one that
was questioning her, standing right before me.
THE COURT: Well, I'm looking right at her, also.
[THE PROSECUTOR]: Well, Judge, that's my answer.
THE COURT: Okay. As to juror number 3 [Mr.
Porter,] I accept your reason and that will
stand. If that's your reason for number 4 [Ms.
Brooks], it's denied ...