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BULLARD v. FISCHER

May 8, 2003

JOSEPH BULLARD, PETITIONER, AGAINST BRIAN S. FISCHER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

OPINION

Petitioner pro se Joseph Bullard ("Bullard" or "Petitioner"), currently incarcerated at Sing Sing Correctional Facility, Ossining, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for Attempted Aggravated Assault Upon a Police Officer (New York Penal Law § 110/120.11), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03[2]), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02[4]). The respondent Brian S. Fischer, Superintendent (the "State") has opposed the Petitioner's application which is denied for the reasons set forth below.

Prior Proceedings

Bullard, pro se, filed his petition for a writ of habeas corpus on November 21, 2002, alleging that his appellate counsel was ineffective for failing to raise an issue as to the absence of Bullard at a sidebar conference during his trial and that the evidence at his trial was insufficient.

The State filed its opposition on January 15, 2003, and no further submission has been made by Bullard. The matter was marked fully submitted on January 15, 2003.

State Court Proceedings

On June 4, 1996, prior to the commencement of the trial, the court conducted voir dire of prospective jurors. During voir dire, the court asked the Petitioner:

THE COURT: What I would like to suggest to defense counsel and his client that he and his client keep in mind what appears to be a rare incident for a juror asking for some reason or another some additional measure of privacy, if your client would be willing to in effect waive his presence or not hear what is said by the juror. What I would do is hear the juror at the bench over there, sidebar with the lawyers on the record and it would appear that would be something that would not embarrass anyone. We could then go back and tell the defendant such and such occurred, and if there is any reason to excuse the juror we will read back the statement of what the juror said to us. Obviously the law allows you to consent to that. But in any event, it's up to you gentlemen, you and your client.
(Whereupon defense counsel confers with Petitioner)
DEFENSE COUNSEL: Judge, I have spoken with Mr. Bullard and for those rare incidents where it is clear that a juror would be more comfortable at the sidebar he has agreed to waive his right to be present for that purpose. With the conditions as set forth by the court that would be read back he has consented.
(T1. 101-103).*fn1

On June 11, 1996, during voir dire, in the presence of the defense attorney, the prosecutor, and the court, a prospective juror was questioned regarding prior arrests (T1.522). The discussion was as follows:

PROSECUTOR: Do you have any type of experience with police officers?
JUROR: Yes. They thought that I was like selling drugs or something like that outside the laundromat.
PROSECUTOR: Were you arrested for that?

JUROR: No.

PROSECUTOR: They just let you go?

JUROR: They just thought I was suspicious, selling drugs like that.
PROSECUTOR: They came over and spoke with you?

JUROR: Yes.

PROSECUTOR: Now, that wasn't a pleasant experience?

JUROR: No.

PROSECUTOR: Was there anything, sir, about that experience that would make you feel you have a predisposition toward police officers?
JUROR: No. They were just doing their job.
PROSECUTOR: When they come here you are not going to be thinking about that?
JUROR: No, totally separate.

PROSECUTOR: You can assure me of that, sir?

JUROR: Of course.

(T1. 522-24).

Then, the attorneys, the court, and the juror returned to open court (T1. 527). The juror was not dismissed (T1.524). Later, the court excused the rest of the prospective jurors from the courtroom, and in Petitioner's presence (T1.417), further questioned the prospective juror:

THE COURT: [Juror], you said during the questioning that you had been arrested, we did not want to embarrass you by asking additional questions about that in the presence of the other jurors. So we thought that we would wait until they left to ask you just kindly explain what that was about.
JUROR: Well, this was about twelve years ago, the charge was possession of ...

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