The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge
On December 15, 1998 petitioner Alfred Roberts was sentenced in Kings
County Supreme Court to a sentence of twenty-five years to life in prison
after his conviction by a jury on multiple charges, including second
degree murder. Roberts' timely petition for habeas corpus under
28 U.S.C. § 2254 followed and is now before the court, together with the
state's papers in opposition. For the reasons stated below, the petition
Derrick McKnight was murdered at the Williamsburg Housing Projects in
Brooklyn on the night of September 30, 1997, with two gunshots to the
head, one to the chest, and five to the back. See Affidavit of
Jane Meyers at ¶ 4. The jury found, based upon the testimony of five
eyewitnesses who had known Roberts for at least seven years, that Roberts
committed the crime with a gun passed to him moments before the victim
was shot. The man who passed the gun to Roberts was Antoine Felton, a
currently unapprehended accomplice. Id. After the murder
Roberts fled the area and was found by police in Schcncctady.
Id. at ¶ 12. After Roberts' arrest, eyewitness Kevin Sands
asked Roberts why he had shot McKnight, and Roberts responded that he was
"sorry" and that he had just "blanked out." Id.
Before testimony in Roberts' trial on murder and related weapons
charges began, prosecutors notified the court that Roberts' former
counsel had obtained a statement, typed under the letterhead of the
defense's investigation firm, from fugitive Antoine Felton. In the
statement Felton claimed that he and not Roberts had in fact committed
McKnight's murder. Id. at ¶ 7. Felton had purportedly
signed the statement about six months after the murder took place.
Id. The trial court granted the prosecution's motion to exclude
the statement from evidence, on the ground that the statement failed to
meet the requirements under New York State law for an admission against
penal interest that qualifies as an exception to the rule against
hearsay. Id. at ¶ 8.
During the trial, five eyewitnesses identified Roberts as the person
who pulled the trigger on the first two shots, the ones that struck
McKnight in the chest and head. One of these eyewitnesses left the scene
at that point, but four of them remained to see Roberts shoot McKnight
repeatedly in the back as McKnight tried to run away Id at
¶ 9 The circumstances of McKnight's death, as reported by the five
eyewitnesses, were corroborated by the medical examiner's testimony.
Id. at ¶ 11. One of these eyewitnesses, Jeffrey Jones,
also identified the gun used in McKnight's shooting as the same gun, or
a similar gun, to one that Roberts had shown to a group of people a year
earlier. Id. at ¶ 10.
Testifying in his own behalf at trial, Roberts asserted that he had
gotten into a fistfight with McKnight, and that after the fight ended
Felton had returned to the scene and shot
McKnight. Id. at ¶ 13. Defendant admitted on the
stand that he knew all of the eyewitnesses who testified against him, and
that he had no "beefs" with any of them. Id. Roberts did claim
that two of the five eyewitnesses had never been at the scene of the
crime that night, and the other three witnesses had left the scene before
McKnight was murdered by Felton. Id. Roberts also denied
telling Sands he was sorry for McKnight's death and threatening Sands.
After Roberts was convicted and sentenced, he appealed his conviction
to the Appellate Division. Among the arguments he made there were that
the state court was wrong to exclude the written statement allegedly
signed by Felton and that the state court was wrong to permit Jones to
testify about having previously seen the murder weapon, or one like it,
in Roberts' possession. Id. at ¶ 16. The Appellate Division
unanimously affirmed Roberts' conviction. See People v.
Roberts. 288 A.D.2d 403. Specifically, it found that under New York
law Roberts had the burden of establishing that the statement against
penal interest exception to the hearsay rule properly applied. Roberts
failed to meet that burden because he had submitted no evidence that
Felton was unavailable, nor had he presented evidence extrinsic to the
statement itself attesting to its "trustworthiness and reliability." The
Court of Appeals denied Roberts' leave to appeal. See People v.
Roberts, 97 N.Y.2d 760.
In his habeas corpus petition, Roberts asserts two grounds for relief:
(1) he was denied due process by the trial court's refusal to allow
Felton's written statement into evidence, and more particularly by the
court's refusal to hold a hearing to determine whether or not Felton was
unavailable; and (2) he was denied due process by the admission of Jones'
testimony that Roberts
had the same gun, or one like it, a year earlier. Roberts' claims,
however, must be examined against a number of background legal principles
he must overcome in order to obtain habeas relief. First and most
importantly, under 28 U.S.C. § 2254(d), which governs this
proceeding, the petition may not be granted if this court disagrees with
the state court's ruling, rather, the court may grant the petition only
if the state court's decision was "contrary to or involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States." Second, a state
court's rulings on evidence normally do not justify federal habeas
relief. See Delaware v. Van Arsdall, 475 U.S. 673 (1986)
(granting state judges "wide latitude" to rule on evidentiary issues).
As Roberts and the government have identified, the leading Supreme
Court case on the exclusion of statements against penal interest is
Chambers v. Mississippi, 410 U.S. 284 (1973). In that case, one
of the Court's reasons for overturning a guilty verdict was that the
trial court refused to admit certain evidence concerning another person's
out of court statements that he, not Chambers, had committed the crime.
There are a number of significant differences between the circumstances
in Chambers and in this case, however. Among those differences
are; (1) rather than "mechanistically" applying Mississippi evidence law,
which allowed no exception to hearsay for statements against penal
interest, the New York trial court weighed all the circumstances of the
hearsay statement and applied New York's reasonable legal standard
concerning hearsay exceptions of this kind, as laid out in People v.
Settles, 46 N.Y.2d 154 (1978) and People v. Brensic,
70 N.Y.2d 9 (1987); (2) unlike Chambers, where three different
impartial witnesses said they heard the hearsay confession at different
times, and other circumstantial evidence indicated that the declarant had
in fact committed the crime, in this case the indicia of
reliability of the hearsay statement were much weaker, if not
nonexistent Felton's statement, if ever actually made by him, was
made in the form of a written statement, probably typed by someone other
than Felton, six months after the crime and to an investigator for
Roberts; and (3) unlike Chambers, where only one eyewitness (a
police officer colleague of the victim) at trial identified the defendant
as the actual perpetrator, in this case five different eyewitnesses did
so, one of whom was Roberts' cousin and another was Roberts' friend of
fifteen years standing. With these differences between the facts of
Chambers and the instant case, I cannot conclude that the stale courts'
rulings were "contrary to" or an "unreasonable application of the Supreme
Court's decision in Chambers v. Mississippi.
Roberts' argument that the trial court erred by failing to hold a
hearing on whether Felton was in fact unavailable is procedurally
defaulted, because Roberts failed to make this argument during his appeal
to the Appellate Division, Sec Wainwright v. Sykes,
433 U.S. 72, 87 (1977). Roberts has not established that cause and prejudice
for this procedural default, nor has he established a fundamental
miscarriage of justice. Therefore, habeas relief is not available to Roberts
on the ground that the trial court failed to hold a hearing on Felton's
unavailability. In any event, Roberts would not have been harmed if
Felton had been determined unavailable, because Felton's statement could
still have been properly excluded by the trial court as lacking
sufficient indicia of reliability.
As to the question of whether the admission of Jeffrey Jones' testimony
that he had in the past seen Roberts with the murder weapon or with a
similar gun violated Roberts' due process right to a fair trial, it is
clear that the admission of prior bad act evidence is perfectly
appropriate, as long as the evidence is admitted for some proper purpose,
other than to show criminal
propensity. Federal Rule of Evidence 404(b) explicitly endorses
this principle, and Jones' testimony had the proper purpose of linking
the defendant to the murder weapon. In any event, in Estelle v.
McGuire, 502 U.S. 62, 75 n.5 (1991) the Supreme Court specifically
declined to reach the question of whether the use of "prior crimes or bad
acts" to show criminal propensity actually violates Due Process. Thus,
since the Supreme Court has taken no position on the issue, it ...