United States District Court, S.D. New York
March 10, 2004.
HOWARD PELLINGTON, Petitioner against CHARLES GREINER, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Petitioner Howard Pellington ("Pellington") was convicted of murder
in the second degree after trial in the Supreme Court of the State of New
York, Bronx County (the "State Court") in 1998, and is now serving an
indeterminate term of imprisonment of between twenty years to life.
During jury deliberations at the conclusion of the trial, the judge met
privately with the jury forewoman, at the juror's request, to discuss the
behavior of another juror. A court reporter and the attorneys for both
sides were present at the meeting, but Pellington was not. In this
petition for a writ of habeas corpus, Pellington argues that the judge's
discussion with the juror in Pellington's absence deprived Pellington of
his constitutional right to be present at all material states of
proceedings against him. For the reasons set forth below, the Court
denies Pellington's petition.
Pellington was convicted for the murder of Michael Cruz on the night of
January 3, 1995 in the Bronx. His conviction
was based primarily on the testimony of the single witness to the
incident, Eddie Aviles ("Aviles"). Aviles testified that he observed an
argument between three men on a street corner and saw one of the men
shoot the victim and then begin running in his direction. According to
Aviles, when the shooter was approximately 20 feet away, Aviles
recognized him as Pellington. Aviles stated that he knew Pellington
because Pellington worked for a drug dealer from whom Aviles regularly
purchased cocaine, and Aviles had seen Pellington almost daily in the
month before the shooting. Much of the trial focused on Aviles's
credibility due to his history of drug abuse, the possibly poor lighting
at the scene, and Aviles's nine-month delay in coming forward to identify
Pellington as the shooter.
At the conclusion of the first afternoon of jury deliberations, after
the jury had been dismissed from the courtroom, the judge informed the
parties in open court that the jury foreperson had told a court officer
that she wanted to speak with the judge "about something that she didn't
want to put into a note." (Trial transcript (Tr.), People v.
Pellington, Ind. # 7708/95, N.Y. Sup. Ct., Bronx Cty, Crim. Term
Part 27, April 1, 1998, at 630.) The court then stated, "[s]o what we
have agreed, Mr. Katz,*fn1 am I correct, that we will talk to her in
private with just the court reporter,
court officer obviously and the attorneys, is that correct?" (Tr.
630.) Pellington's counsel replied "[f]ine." (Id.)
The court then held a private, on-the-record conference with the jury
forewoman and the above-named individuals. Pellington did not attend the
conference. At the meeting, the forewoman informed the court:
Eleven of us [have] all come to a conclusion,
there is one upstairs that he's taking it
personally. He's not following the law that you
gave us to go by. He's not listening to that. He's
dismissing all this stuff you told us and a lot of
facts that's there he's dismissing, everything. So
a lot of jurors upstairs [are] getting upset
because all 11 of us [are] agreeing except for
him. I felt I needed to tell you that he's not
really listening to what you said.
In response, the court asked the forewoman not to reveal the results of
the deliberations and then stated:
My thought is that I would take you all, send you
to the hotel for the night that would give
everybody an opportunity to step back from the
case. Maybe I will try to address it in some
fashion tomorrow, but it should be through a note,
The court gave both attorneys an opportunity to weigh in on the
appropriate response to the forewoman's statement. Pellington's counsel
said that "the best thing is since they are planning on going to the
hotel at this moment anyway that we allow the jury to go to the hotel.
There's nothing to be
accomplished at this point anyway[.]" (Id.) Before the
meeting concluded, the forewoman repeated:
One more thing. . . .it's personal with [the
juror in question], he's not going by the law you
gave us to go by, that is not what he's going by.
It makes it very hard for us to come to a
conclusion because everybody is there, we have it
all, it's just him, it's personal.
The court replied " [w]e will work on that tomorrow." (Id.)
The next morning, on the record and with Pellington present but outside
the presence of the jury, the court referred to the meeting with the
forewoman the previous evening:
We had a conference with one of the jurors in the
robing room, and I'm not going to repeat the
substance of that conversation, but the lawyers
and I have discussed that just a few minutes ago
and decided that at this point we're not going to
respond to the things that she told us, and we'll
wait and see how things develop; is that correct
Both attorneys confirmed this plan.
The jury deliberated over the next three days. The deliberations
included several readbacks of testimony, requests for clarification of
charges, two reports of deadlock, and two Allen charges*fn2
from the court. The jury ultimately convicted Pellington of murder in the
Pellington appealed his conviction to the Supreme Court of New York,
Appellate Division, First Department (the "Appellate Division"). He
argued that the government had failed to prove his guilt beyond a
reasonable doubt; that the government's use of peremptory challenges was
pretextual and violated his right to equal protection; and that the
meeting between the court, the jury forewoman, and counsel for both sides
outside of Pellington's presence denied Pellington his right to be
present at all stages of the proceedings against him. The Appellate
Division affirmed the judgment. See People v.
Pellington, 741 N.Y.S.2d 694 (App. Div. 1st Dept. 2002). The New
York Court of Appeals denied Pellington leave to appeal. See
People v. Pellington, 98 N.Y.2d 771 (2002). Pellington then
filed this petition for a writ of habeas corpus, in which he raises only
the third of the arguments he submitted to the Appellate Division
the court's meeting with the jury foreperson.
A. STANDARD OF REVIEW FOR HABEAS PETITIONS
A federal district court may issue a writ of habeas corpus to a person
who is in custody as a result of a state court conviction only if that
custody violates the United
States Constitution or federal laws or treaties. See
28 U.S.C. § 2254(a). If a state prisoner's claims were decided on the
merits by a state court, § 2254(d)(1) permits this Court to grant
habeas relief 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." See
Williams v. Taylor, 529 U.S. 362, 409 (2000); Eze v.
Senkowski, 321 F.3d 110, 121 (2d Cir. 2003).
B. THE JUROR MEETING
Pellington argues that the state court's meeting with the jury
forewoman in the presence of the prosecutor, Pellington's counsel, and
the court reporter deprived Pellington of his right to be present for all
stages of the proceedings against him under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution. The State argues
that Pellington waived his right to be present; that even if Pellington
did not waive his right to be present, his absence did not deprive him of
his right to be present for all material proceedings; and finally, that
any error by the state court in holding the meeting without Pellington
The due process clause of the Fourteenth Amendment to the Constitution
guarantees a criminal defendant "the right to be
present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of the
procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). The
defendant may waive his right to be present, provided that waiver is made
knowingly and voluntarily. See Clark v. Stinson,
214 F.3d 315, 323 (2d Cir. 2000). Such a waiver may be implied by a
defendant's conduct. See Cohen v. Senkowski,
290 F.3d 485, 491 (2d Cir. 2002); Clark, 214 F.3d at 323.
Although a waiver must be knowing and voluntary, "only minimal
knowledge on the part of the accused is required when waiver is implied
from conduct." Cohen, 290 F.3d at 491 (quoting United
States v. Nichols, 56 F.3d 403, 416 (2d Cir. 1995)). The Second
Circuit has stated that the proper inquiry to determine whether an
implied waiver was made knowingly "is whether the trial court's actions
in open court gave [the defendant] sufficient `minimal' knowledge of the
nature and purpose of the [proceeding] to conclude that he waived his
right to be present when he did not attend." Id.
In the case at bar, the court informed the parties and counsel in open
court, outside the presence of the jury, that the foreperson wanted to
speak to the court. The court then stated that the attorneys, the court
reporter, and the court security officer would meet privately with the
Pellington's counsel consented to this arrangement. Although
Pellington did not expressly or personally waive his right to attend the
juror conference, neither Pellington nor his counsel objected to
Pellington's absence from the conference with the court. The Supreme
Court addressed a similar situation in United States v. Gagnon,
470 U.S. 522 (1985), in which the trial court met privately, on the
record, with a juror and defense counsel. The Gagnon Court
ruled that the defendant waived his right to attend the meeting because:
The district court need not get an express "on the
record" waiver from the defendant for every trial
conference which a defendant may have a right to
attend. As we have noted previously, "[t]here is
scarcely a lengthy trial in which one or more
jurors does not have occasion to speak to the
trial judge about something, whether it relates to
a matter of personal comfort or to some aspect of
the trial." [Rushen v. Spain,
464 U.S. 114, 118 (1983)]. A defendant knowing of such a
discussion must assert whatever right he may have
under [Fed.R. Crim. P.] 43 to be present.
Gagnon, 470 U.S. at 528.
Although the Appellate Division did not expressly rely on
Gagnon, it ruled that Pellington, through his counsel, waived
his right to be present at the juror meeting. See
Pellington, 741 N.Y.S.2d at 694. Pellington's argument that his
waiver was not made knowingly because he was unaware of the topic of the
forewoman's statements is not persuasive. Pellington knew that the court
intended to meet with the forewoman and the attorneys. Neither he nor his
attorney objected to that
arrangement, and his attorney expressly consented to it. On that
basis, the Appellate Division's ruling that Pellington waived his right
to be present was entirely reasonable.
2. Harmless error
Even if Pellington's waiver was not made knowingly and voluntarily, and
even if Pellington had a constitutional right to be present at the
meeting,*fn3 the Court has determined that any error the state court may
have committed in holding the discussion without Pellington was harmless
given the presence of Pellington's counsel at the conference.
There are two competing standards for determining whether an error at
trial may be considered harmless. See Brown v. Keane,
355 F.3d 82, 91 (2d Cir. 2004). Under Chapman v. California,
386 U.S. 18, 24 (1967), on direct review of a criminal conviction a
constitutional error at trial must be harmless beyond a reasonable doubt
to avoid the reversal of a conviction. But under Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), on collateral review of a
state criminal conviction in federal court, an error is harmless if it
had no "substantial and injurious effect or influence in determining the
jury's verdict." The Second Circuit has expressly declined to decide
which standard to apply to a habeas review of a state conviction, because
in the cases that have raised the issue
the Circuit Court determined that the result would be the same
under either test. See Brown, 355 F.3d at 91. For the
same reason, the Court here declines to decide the applicable standard.
The Supreme Court has emphasized that "[a]ny ex
parte meeting or communication between the judge and the
foreman of a deliberating jury is pregnant with possibilities for error."
United States v. U.S. Gypsum Co., 438 U.S. 422, 460 (1978). But
the reference to and understanding of "ex parte"
generally entails direct communications or meetings of which neither the
defendant nor his counsel was informed or had an opportunity to
participate or waive defendant's appearance. Accordingly, courts have
repeatedly indicated that in most instances, the presence of defense
counsel at a conference between a judge and juror adequately protects the
In United States v. Smith, 230 F.3d 300 (7th Cir. 2000), the
Seventh Circuit held that the defendant's due process rights were not
violated when the trial court held an in-chambers conference relating to
a juror (absent the juror) with counsel for both sides but without the
defendant. The circuit court stated that the defendant's "absence from
the conference did not detract from his defense or in any way affect the
fundamental fairness of the trial. The record shows that counsel
adequately expressed [the defendant's]
viewpoint in chambers, and does not suggest that the decision would
have been any different had [the defendant] been present." Id.
at 310. Similarly, in United States v. Rhodes, 32 F.3d 867 (4th
Cir. 1994), the Fourth Circuit determined that the trial court erred in
conducting an in-chambers discussion with counsel for both sides about
how to respond to a juror's substantive question, but that such error was
harmless because the trial court gave the proper answer as suggested by
defense counsel. See id. at 874; see
also, United States v. Harris, 814 F.2d 155 (4th Cir.
In a recent decision, the Second Circuit ruled that a trial court erred
in responding ex parte to a note from a deliberating
jury without first informing counsel of the existence of the note.
See United States v. Mejia, 356 F.3d 470 (2d Cir.
2004). The court stressed the importance of allowing counsel to help
shape a court's response to a note from a jury. See
id. at 477. Similarly, in United States v. Ronder,
639 F.2d 931 (2d Cir. 1981), the Second Circuit emphasized the need for a
judge to consult with counsel before responding to a
communication from a jury. Furthermore, in Ronder the court
noted that "[o]n occasion the personal nature of a note or the risk of
exacerbating tensions among jurors may make it appropriate to forgo
reading the text of the note to the entire jury; in that event it may be
disclose the note to counsel in camera or even to make
some redaction." Id. at 934 (emphasis added). There is no
indication that if the court informs counsel of the communication from a
juror and consults with counsel about the appropriate response, the court
has nonetheless materially violated the defendant's constitutional rights
by failing to also include him personally in the discussion, particularly
when the defendant is aware of the conference and knows that his attorney
is participating in the colloquy.
In the present case, Pellington argues that his absence from the
meeting denied him the opportunity to resolve the problem of the lone
juror who was the subject of the forewoman's complaint. He argues that
because he did not attend the meeting, he "had no opportunity apparent on
the record to suggest to his counsel or the court that this particular
problem . . . be addressed directly." (Petitioner's Memorandum of Law in
Support of Petition for a Writ of Habeas Corpus (Pet. Mem.) at 24.)
Pellington's argument is unpersuasive for several reasons. Pellington's
counsel and the court agreed that the most effective means of dealing
with the issue was to take a wait-and-see approach to the juror's
behavior. The Court has no compelling ground to conclude that
Pellington's presence at the meeting would have led to the adoption of a
Pellington's argument that his absence prevented him from asking his
attorney or the court to address the problem is meritless. Nothing
prevented Pellington from speaking with his attorney or with the court
following the meeting or the next morning before deliberations resumed.
Indeed, the court held a private conference with the attorneys the
morning after the meeting with the forewoman to discuss again the best
means of addressing the situation. There is no indication that Pellington
was prevented from speaking to his counsel on this topic before this
morning meeting, or that he was prevented from addressing the court
directly. The Court therefore concludes that any error the state court
may have committed in this case was harmless.
For the reasons discussed above, it is hereby
ORDERED that the petition of Howard Pellington for a writ of
habeas corpus is denied.
The Clerk of Court is directed to close this case.