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August 4, 2003


The opinion of the court was delivered by: David Larimer, Chief Judge, District



Petitioner Darrick Sides ("Sides") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on murder and attempted robbery charges. For the reasons set forth below, Sides's § 2254 petition is dismissed.


This case arises from the botched attempted robbery of Elvis Martinez as he was opening his grocery store on the morning of September 27, 1995. Ten year-old Jacquan Moore, who witnessed the crime as he was walking to school, implicated three individuals in the fatal shooting of Martinez: Sides and Johnny Brown, whom Moore knew from the neighborhood, and a third person whom he did not know. Brown fled via train and was apprehended later that day in Manhattan. Sides was arrested at his home in Rochester on September 28, 1995. Freddie Stokes, the third participant, was arrested on October 17, 1995; he subsequently admitted his involvement in the crime to the police and implicated Sides as the gunman.

By indictment filed December 5, 1995, the Monroe County Grand Jury charged Sides with one court of intentional murder in the second degree, one count of felony murder, and two counts [ Page 2]

of attempted robbery. After a jury trial in Monroe County Court (Connell, J.), Sides was convicted on all counts in the indictment and sentenced to concurrent terms of imprisonment, the longest of which was 25 years to life.

The Appellate Division, Fourth Department unanimously affirmed his conviction in a memorandum decision entered October 1, 1999. People v. Sides, 265 A.D.2d 907 (4th Dept. 1999). The New York Court of Appeals denied leave to appeal on December 1, 1999. This federal habeas corpus petition followed.*fn1


The Review Standard

Because the petition, which was filed on February 27, 2001, postdates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402 (2000). When Congress enacted AEDPA, it significantly curtailed the role of federal courts in reviewing petitions filed by state prisoners. Id. In order to obtain habeas relief under the amended § 2254, Sides must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was "contrary to" or involved an "unreasonable application of" clearly established Supreme Court precedent, or resulted in a decision that was based on an "unreasonable determination of facts" in light of the evidence presented in State court. 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. at 375-276. On habeas review, the federal court must presume that the [ Page 3]

state courts' factual findings are correct and may be rebutted only upon a showing of clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Merits of the Petition

1. Admission of Threats Made to Testifying Witness by Petitioner

Sides contends that the trial court improperly allowed prosecution witness Cedric Wright ("Wright") to testify that, while Wright was waiting in the holding area with Sides, Sides uttered a statement to the effect of,"[i]f I'm blessed with this crime, we're going to visit you." Trial Tr. at 513; 532. The trial court ruled that the statement was probative in that it "sound[ed] of a threatening nature and would reasonably believed to be a threatening statement." Id. at 514.

As a general rule, state evidentiary rulings do not implicate federal law and are therefore not appropriate for review by federal courts unless the ruling renders the trial fundamentally unfair implicating a due process violation. See Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998). An erroneous evidentiary ruling renders a trial fundamentally unfair only if the ruling was "material," that is, in light of the entire record, a contrary ruling would have created a reasonable doubt where none otherwise existed. Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). Instead, such rulings are generally left to the discretion of the trial court. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In the present case, however, Sides does not even make a threshold showing that the trial court's ruling was erroneous under state law. Courts will allow introduction of evidence of a defendant's conduct that reveals a guilty mind, including evidence of coercion and harassment of a witness. See, e.g., People v. Sherman, 156 A.D.2d 889 (3d Dept. 1989), lv. denied 75 N.Y.2d 970 (1990) ("Evidence that a defendant threatened a witness to change his testimony is highly probative and properly admitted as indicative of consciousness of guilt."); People v. Bennett, 79 N.Y.2d 464 [ Page 4]

(1992); United States v. Mickens, 926 F.2d 1323 (2d Cir. 1991) (holding that evidence that the defendant held his hand in the shape of a gun as the witness entered the courtroom was admissible); accord United States v. Stewart, 112 F.3d 507 (2d Cir. 1996).

Here, it was clearly within the trial court's discretion to permit prosecution witness Wright to testify that Sides asked him not to testify and threatened him in the hallway outside the courtroom before he gave testimony since this evidence is probative of Sides's state of mind. Numerous courts have held, as the trial court did here, that evidence of a defendant's threatening behavior toward a witness was relevant and admissible. See, e.g., People v. Bennett, 79 N.Y.2d 464; United States v. Mickens, 926 F.2d 1323. In light of these decisions, the trial court was well within its discretion to determine that this evidence was relevant, and petitioner's claim must be denied. See Herrera v. Artuz, 171 F. Supp.2d 146, 149-50 (S.D.N.Y. 2001) (denying habeas claim based on trial court's admission of evidence of an alleged threatening gesture petitioner made to one of the witnesses). This claim affords no basis for habeas relief.

2. Identification Testimony

In his petition, Sides asserts that the "[c]ourt erred in allowing an in court id. (sic) after people (sic) failed to move at suppression hearing." Pet'n at 5. This claim arises out of the prosecution's failure to proceed with a pre-trial Wade*fn2 hearing with regard to witness Cedric Wright's photo array identification of Sides. Sides argues that this precluded the trial court from admitting Wright's in-court identification of Sides absent a showing of good cause.

On direct appeal, the Appellate Division held that [ Page 5]

[t]he record supports the court's determination that the . . . witness [who made the identification] was familiar with defendant. Thus, there was no risk that police suggestion could lead to a misidentification, and the identification of defendant through a photo array was confirmatory and the notice and hearing ...

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