United States District Court, S.D. New York
May 4, 2004.
JOSE LLACA, Petitioner, -against- GEORGE B. DUNCAN, Respondent; DANIEL GONZALEZ, Petitioner, -against- MICHAEL McGINNIS, Respondent; LINDWOOD COLLINS, Petitioner, -against- FLOYD G. BENNETT, Respondent
The opinion of the court was delivered by: DENNY CHIN, District Judge
Pro se petitioners Jose Llaca, Daniel Gonzalez, and
Lindwood Collins bring petitions for writs of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioners were convicted in 1995, after a jury
trial, in the Supreme Court of the State of New York, New York County, of
crimes stemming from their participation in a large narcotics organization. Petitioners
challenge their convictions on a variety of grounds. The Court has
reviewed the submissions of the parties as well as the record of the
proceedings in the state court. For the reasons discussed herein, the
petitions are denied.
The following is a brief summary of the facts adduced at petitioners'
Petitioners were high-ranking members of a large drug-selling
organization founded by brothers Nelson and Lenin Sepulveda (the
"organization"). (Trial Tr. at 13574-75, 13581-82, 13588, 13592,
13608-09, 13675, 13667, 13705, 13892). From 1986 until 1993, the
organization sold crack cocaine in the Mott Haven area of the Bronx and
the Brighton Beach area of Brooklyn. (Id. at 957, 1542, 1545,
12266-67, 12309, 13574-75, 13581-82, 13667, 13705, 13892). In certain
locations, the drugs sold were packaged in containers with red tops (or
caps); in other locations the drugs were packaged with orange tops.
(Id. at 957-58, 1455, 1475-76, 1597, 1718-19, 1724, 1772,
Llaca was, inter alia, one of the bosses of two of the drug
selling spots in Mott Haven (Id. at 8823, 8992-94, 8995, 9047-48); Gonzalez worked as a "pitcher," or hand-to-hand seller,
and a shift manager at all four of the organization's Mott Haven drug
spots (Id. at 4147-48, 5603, 6930, 6932, 8885-86, 8997, 9822,
13595); and Collins began as a lookout for the drug sellers at one of the
Bronx locations, and later became a manager at two of the Mott Haven
spots. (Id. at 4168, 5602-03, 5608, 6291, 6360, 6366, 6369-70,
Petitioners committed several murders in furtherance of the drug
conspiracy for which they were ultimately convicted. On September 3,
1989, Llaca and two other members of the operation ambushed and shot to
death a rival heroin dealer and one of his companions. (Id. at
5589-91, 6405, 6412-13, 7917-18, 7920, 8387-88, 8389, 8392-96, 8399,
8425, 9886-87, 9889-90, 9895, 9898, 12973, 12978). On December 16, 1991,
Gonzalez and several other members of the conspiracy ambushed a competing
crack spot and killed four people. (Id. at 4201-02, 4204,
4237-38, 4987-90, 4995-96, 4998, 5734-36, 5738-39). Also, on June 20,
1993, Llaca shot and killed the leader of a rival drug-selling
organization. (Id. at 1613, 15229-30, 15460-61, 15463-64,
On November 3, 1993, petitioners and thirty-eight co-defendants were
charged in one indictment with conspiracy and related crimes for their
involvement in the organization. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. A). The
indictment charged that the forty-one defendants committed numerous
crimes in furtherance of the operations of the organization.
(Id.). Thirty-two of the defendants pled guilty prior to trial.
Petitioners and six co-defendants proceeded jointly to trial in September
1994. On May 15, 1995, following a seven-month trial, the jury convicted
petitioners of the crimes detailed below.
2. Pre-Trial Proceedings
Prior to trial, Collins moved to sever his case from those of his
co-defendants arguing, inter alia, that courts have found
severance appropriate for trials involving more than ten defendants, and
that his defense was antagonistic to that of his co-defendants because he
would argue that "if any one was involved, it was one or another" of the
co-defendants. (2/1/94 Mot.). The trial court (Leslie Crocker Snyder, J.)
denied Collins's motion, stating that the trial would likely involve nine
defendants, not forty-one, and that all nine were of similar importance
within the conspiracy. The court also noted that Collins had failed to
make a sufficient showing of antagonistic defenses. (7/19/94 Order).
Thereafter, throughout the course of the trial, petitioner made or joined
in a number of oral renewals of severance motions, all of which were
denied. (Trial Tr. at 1488, 1500-04, 1518G, 3690-91, 3706, 7948-49,
9212-13, 9347-53, 9600-07, 17874-77, 18615-16, 19491-94). b. Co-Conspirator Statements
Also prior to trial, the court held a hearing pursuant to People
v. Evangelista, 88 A.D.2d 804, 450 N.Y.S.2d 817 (1st Dep't 1982), to
determine the admissibility of Llaca's co-conspirators' statements.*fn3
(See 10/6/94 Proceedings; 10/11/94 Proceedings). At the hearing, the
prosecutor described the evidence relevant to Llaca's participation in
the conspiracy. (10/6/94 Proceedings at 1750-64, 1772-73; 10/11/94
Proceedings at 9-28). Llaca argued that the statements should not be
admitted into evidence because the evidence was insufficient to establish
his participation in the conspiracy. (10/6/94 Proceedings at 1772-75).
The prosecution responded, inter alia, that it would offer
testimony at trial from individuals who had worked for Llaca that he was
one of the bosses at the 138th and 141st Street spots. (Id. at
1772-73). Additionally, the prosecution noted that Llaca and one of his
co-conspirators had committed a double murder on September 3, 1989.
(10/11/94 Proceedings at 24).
At the close of the hearing, the court ruled that the State had
presented "ample evidence" in support of a prima facie case of
conspiracy, "without resort to the statements [the State] seek[s] to
introduce," and therefore, the State would be permitted to introduce the co-conspirators' statements in
furtherance of the conspiracy. (Id. at 28-30).
3. Jury Selection
a. Statements by the Trial Judge
During voir dire, counsel for Stanley Tukes, one of
petitioners' co-defendants, likened the prosecution's case to a collage
and argued that the prosecution was "going to put together little
pictures and tell you that this forms one big picture but we are not
going to have a physical picture to see. It's going to an idea that they
are perpetrating." Tukes's attorney asked the prospective jurors to
"understand that that's all it is[,] an idea[,] and that it's not
necessarily a physical reality." (Id. at 123).
In response to a prosecution objection, the judge stated that she was
"tired of the concept and the idea of brain washing jury selection as
opposed to getting information." (Id. at 124). Tukes's attorney
then denied that he was trying to brainwash anybody, and the judge
responded that she would take his word "at face value." (Id.).
b. Batson Challenge
During the first round of jury selection, held on October 4, 6, and 11,
1994, the prosecutor exercised peremptory challenges against thirteen of
the forty-four prospective jurors, (Id. at 205-20). In the
second round, held on October 13, 1994, the prosecutor exercised a
peremptory challenge against another juror. (10/13/94 Proceedings at 549-50). Tukes's counsel then made
a Batson application, arguing that the prosecutor had used
thirteen of his fourteen peremptory challenges to strike black jurors,
and that the prosecutor had struck only one white juror. (Id.).
The other defendants, including petitioners, later joined in that
In response, the trial court observed that "almost every prospective
juror was either black or Hispanic," and that there was an "incredibly
small" number of "Caucasians." (Id. at 550). Additionally, the
prosecutor noted that seven of the thirteen seated jurors (twelve jurors
and one alternate) were black. (Id.). The court concluded that
(1) the defense had not shown a prima facie case of discrimination, and
(2) the Batson challenge should have been made prior to the
dismissal of the first jury panel "so that the Court could have acted
appropriately at the appropriate time." (Id.).
Nonetheless, the court then asked the prosecutor to explain the reasons
for his peremptory challenges to "make a record." (Id.). The
prosecutor did so, stating that he excused venireperson eight because she
was a Jehovah's Witness and every Jehovah's Witness he had questioned in
his ten years of experience had stated that Jehovah's Witnesses could not
"sit in judgment." (Id. at 552).
The prosecutor believed that venireperson twelve did not seem to be
taking the proceedings seriously, that she "relied an awful lot on
horoscopes," and that she had read the Enquirer whenever the parties were not questioning her. (Id. at
553). Consequently, he did not think that she would be an appropriate
juror for a case of this "complexity." (Id. at 559-60).
The prosecutor stated that venireperson seventeen was "too young" and
would be unable to "evaluate evidence" and "make a decision" in a
"serious" case like this because she was only twenty-one years old and
unemployed. (Id. at 554).
The prosecutor noted that venireperson thirty-four was employed by the
Transit Authority. The prosecutor stated that it was his experience,
based on past criminal investigation interviews, that Transit Authority
workers did not have a "very good opinion" of police officers and were
not "usually fair and impartial when it comes to evaluating them."
(Id. at 554-55). The same explanation was offered for
venireperson forty-one. (Id. at 556).
The prosecutor stated that venireperson thirty-seven had appeared
"stone faced" throughout the proceedings and he could not "read her."
(Id. at 555-56). Further, he did not think she had been
"particularly up front" with the parties. (Id. at 556).
As to venirepersons forty-three and forty-four, the prosecutor
explained that he thought they might be "too sympathetic" because
venireperson forty-three worked in a day care facility and venireperson
forty-four was involved to "a very large extent with church activities."
(Id. at 556-57). Lastly, as to venireperson two of the second round of jury selection,
the prosecutor explained that he had "a problem" with the fact that she
wore sunglasses despite the lack of brightness in the courtroom.
(Id. at 559). The prosecutor opined that she did not appear to
be paying attention and that her wearing sunglasses indoors could
indicate "a substance abuse problem." (Id.).
None of the defendants, including petitioners, challenged any of the
prosecutor's explanations as inadequate or pretextual. Thereafter, the
court reiterated that the Batson application was untimely, but
stated that it would make a ruling on the merits "because of the record."
(Id. at 557). The court then found that the defendants had
failed to make a prima facie showing of racial discrimination.
(Id.). Specifically, the court found that "clear reason"
existed for the prosecutor's peremptory challenges, that there was "no
pretext," and that "the challenges were not exercised to discriminate on
the basis of race." (Id. at 558).
4. The Trial
a. Stipulation Regarding Collins's
In his opening statement at trial, Collins's attorney argued that
Collins had not been caught on videotape or in photographs and that he
was not directly implicated by anything recovered pursuant to search
warrants. (Trial Tr. at 817-19).
Detective Mark Tebbens testified on direct examination that on January
5, 1992, he watched one of the Bronx drug selling spots from 12:30 a.m. until 5:00 a.m. and observed Collins and one
"of his co-defendants, Russel Harris, in the location for several hours
while lookouts rode bicycles nearby, whistling or yelling when the police
came onto the block. (Id. at 1069-74, 1101-17, 1124, 1156-57).
During that time, another co-defendant, Wilfredo De Los Angeles, arrived
and spoke to Collins, Harris, and the lookouts. (Id.).
Detective Tebbens also stated that Collins's address was near the
location of the surveillance. (Id. at 1126-27).
On cross-examination, Collins's attorney inquired whether "the only
thing" Detective Tebbens could say with respect to Collins's activities
was that he saw Collins once "in his own neighborhood talking to his
neighbors." (Id. at 1441-43). Detective Tebbens responded that
Collins had appeared to be talking to lookouts and directing people to
the drug purchasing location. (Id. at 1442). Collins's attorney
then elicited that, while from late 1989 to mid-1993 Detective Tebbens
saw various people around 354 Cypress Avenue, the location where bosses
and upper-level workers of the drug spots often gathered, he never saw
Collins in the area during that period. (Id. at 1443-45).
Next, Detective Edwin Benitez testified that he began his investigation
into the Mott Haven narcotics trafficking activities in June 1992.
(Id. at 1542-45). Collins's attorney then elicited that
Detective Benitez had never seen Collins around the Bronx drug selling
spot Detective Tebbens had testified about earlier. (Id. at
2143). At a sidebar conference, the prosecutor informed the court that Collins
had been in jail since February 1992, a period that encompassed the tail
end of Detective Tebbens' sinvestigation and the entirety of Detective
Benitez's investigation. (Id. at 2144). The prosecutor stated
his intention to introduce records to that effect, and the court ruled
that Collins's attorney had opened the door to an explanation.
(Id.). The prosecutor then asked Collins's attorney for a
stipulation, but he declined, stating that it would be "[e]asy enough"
for the prosecution to prove its point. (Id. at 2147-48).
Cross-examination resumed and Collins's attorney elicited from
Detective Benitez that during the period of his investigation he never
saw Collins participate in and was unaware of Collins's involvement in
investigation-related activities of which Detective Benitez had
knowledge. (Id. at 2150-55).
A subsequent colloquy occurred following the examination of Detective
Kevin Bryant, whose investigation began after Collins was incarcerated.
The judge reiterated that counsel had opened the door to an explanation
about Collins's absence and noted a preference that the parties stipulate
that Collins was not in the vicinity rather than that he was
incarcerated. (Id. at 10718-19). The court opined that evidence
of incarceration was "prejudicial," (Id.). The prosecutors
replied that such a stipulation would inaccurately imply that Collins
voluntarily chose to remove himself from the area. After more discussion, the court directed the parties to "start thinking
of an appropriate stipulation." (Id. at 10723).
At the close of the prosecution's case, the prosecutors read a series
of stipulations to the jurors, one of which was that Collins had been
incarcerated since February 1992. (Id. at 17912). At a sidebar
conference Collins's attorney informed the judge that he had not agreed
to the stipulation. (Id. at 17913). He also moved for a
mistrial, asserting he had not opened the door to evidence of Collins's
incarceration. (Id. at 17913-18).
The court rejected the claim that the door had not been opened, stating
that Collins's attorney's inquiry of the prosecution's witnesses had
"raised an unfair inference." (Id. at 17917-18). With respect
to the stipulation, the court offered to inform the jury that Collins had
not agreed to the stipulation. (Id. at 17918). Collins's
attorney declined, stating that he did not want to "highlight" the
information. (Id.). The court also offered to instruct the jury
"not to draw any inference" from the dates any of the defendants were
incarcerated. (Id.). None of the attorneys accepted that offer.
(Id. at 17919).
During deliberations, the jury sent a note requesting the "stipulation
of in jail dates of all defendants." (Id. at 20972). The
prosecutor argued that the court should read the stipulations addressing
the incarceration of Collins and several of his co-defendants.
(Id. at 20975-76). Collins's attorney argued that he had not
opened the door to that evidence and had not stipulated to its admission, and reminded the court that he
objected after the prosecutor read the stipulation to the jury.
(Id. at 20976, 20982, 20986, 21150-52). Noting that Collins had
declined the court's offer to have the stipulation withdrawn, the court
held that the evidence of Collins's incarceration had come in by
stipulation and would be reported to the jury that way. (Id. at
21157-58). The record does not reflect whether and when the stipulation
was in fact re-read to the jury.
b. Statements by Trial Judge
i. Statements Regarding Scope of Witness
During his cross-examination of cooperating witness George Santiago,
Collins's attorney elicited that Santiago had been incarcerated at Rikers
Island and that during his stay there he had been "called into security"
with respect to his involvement with a gang, the "Latin Kings."
(Id. at 10114). When the judge sustained a prosecution
objection to Collins's attorney's request for a description of the Latin
Kings, Collins's attorney requested a sidebar. (Id.).
At the sidebar, Collins's attorney alleged that Santiago (1) had shot
or been involved in the shooting of the individual for whose death
Collins was presently on trial, (2) was an upper-level member of the
Latin Kings, and (3) was able to exert control over prosecution witnesses
because of his status. (Id. at 10116-17, 10133). Thus,
Collins's attorney wanted to inquire into Santiago's gang membership. The judge told Collins's attorney that he had an "absolute right" to
elicit Santiago's Latin Kings membership, but that "how far [counsel was]
going to be able to go from there from an evidentiary point of view is
a totally different issue." (Id. at 10118-19, 10134). While the
judge was. explaining her ruling, Collions's attorney interrupted and set
forth the information he intended to elicit upon the resumption of his
cross-examination. (Id. at 10119). The following exchange then
The Court: No. If your next question will be "are
you a member" sten to me first.
[Collins's attorney]: I will listen to you first
and then I will be heard.
The Court: You will be heard because I will hear
you. But if you do something I tell you not to
do[,] I warn you right now you will sit down and
your [cross-examination] will end.
[Collins's attorney]: If you want to run that
The Court: Because I am putting you on notice now.
I want you to know in every trial I have with you,
you try to push me to the limit. And I'm warning
[Collins's attorney]: I am representing my client.
The Court: And you do a good job but you will ask
the questions that I permit.
[Collins's attorney]: I will go into the areas
that you permit but I will ask my questions. I'm
doing the cross-examination here.
The Court: When I sustain an objection you will
follow my ruling. [Collins's attorney]: I will follow your ruling in
terms of areas, but I will not follow your script.
The Court: Don't yell at me. Don't put your face
in my face. And change your tone of voice.
[Collins's attorney]: I won't follow the Court's
The Court: You can say anything you want, if you
don't follow the ruling
[Collins's attorney]: I will follow your ruling to
The Court: Be quiet and listen to me. Remember
there's no jury here. I tell you right now if you
don't do what I say you will have an exception and
you will have your objection noted. If you don't
listen to me, I'll direct you to sit down. And I'm
telling the jury exactly what you're doing and
what you've done, before in other trials.
[Collins's attorney]: What will you do that for?
You wouldn't do something like that what I've done
in other trials?
The Court: In front of the jury, I will tell the
jury this is the standard procedure you follow in
the hope of building a record for appeal if there
should be a conviction. I will say everything that
I have to say and it will make you look bad.
(Id. at 10119-22).
The judge then ruled that Collins's attorney could ask Santiago whether
he belonged to the Latin Kings and whether he knew what the Latin Kings
were, (Id. at 10122). The judge later commented that Collins's
attorney should "listen rather than pick a fight," that she agreed that
he had a good faith basis for his inquiry, and that he could elicit if
possible that Santiago could coerce witnesses to testify as he wanted.
(Id. at 10123). The judge specified, however, that Collins's attorney had to pursue his
line of inquiry "in the proper way." (Id. at 10124). The
following exchange then occurred:
[Collins's attorney]: . . . I'm sure the Court is
aware of the fact why you can set out what areas
and the extent of the questioning and alike, you
cannot give me my cross-examination for my client.
You've not prepared this case from my point of
view. Let me finish
The Court: No. You're not going to finish. I
didn't say I would ask your questions, what I said
was this[:] If you ask a question and there's an
objection and I sustain it you will follow my
[Collins's attorney]: Oh yes. Most certainly. Of
The Court: Otherwise you will have to go to
another area. If you don't follow the ruling you
will have to sit down.
[Collins's attorney]: I'm going to ask my
The Court: Let's cu[t] the B.S. I'm warning you.
Make your questions consistent with the rules of
[Collins's attorney]: Yes.
The Court: If you don't I'll give [a] speech to
the jury and you'll end up sitting down, but I
will give it in such a loving manner you won't
find as distasteful as you hope.
(Id. at 10124-25).
The judge later ruled that Collins's attorney could not inquire about
the Latin Kings unless he first established that Santiago was a member.
(Id. at 10129-32). When Collins's attorney stated that he
sought to ask Santiago whether the Latin Kings was a Puerto Rican
organization and whether members owe allegiance to each other, the judge agreed that counsel could
pursue that inquiry if Santiago admitted to membership in the group.
(Id. at 10134).
ii. Sidebar Regarding Method of Cross-Examining
Another sidebar was called while De Los Angeles's attorney was
cross-examining another cooperating witness. At the sidebar, the
prosecution stated, in essence, that De Los Angeles's attorning was
confusing the witness by his method of questioning. The following
exchange then took place:
The Court: That's his job, to obfuscate the truth,
confuse everything. Just laughing when I said
[De Los Angeles's attorney]: It's not my job
The Court: Have a sense of humor.
(Id. at 11033).
c. Jury Instructions
i. Conspiracy Charge
(1) Age Element
At the charge conference, the court informed the parties that it would
deliver a charge regarding the age element of conspiracy in the first
degree.*fn4 The court planned to instruct the jury that the prosecution was required to prove that
at the time of the agreement, the defendant, "referring to each
defendant," "was over [eighteen] years of age and at least one of his
co-conspirators was under [sixteen] years of age." (Id. at
18538). The court added that it was "not a defense" that "a defendant did
not know that the person under [sixteen] years of age was under age or
that he believed that person to be [sixteen] years or older."
(Id. at 18538-39).
Collins's attorney then asked whether the court would charge the jury
that it must find that, "even though the defendant did not have to be
aware" that the other individual was under the age of sixteen, that the
prosecution proved "an agreement between that defendant and the party
under the age of [sixteen]." (Id. at 18539-40). The court
replied that the prosecution was required to prove only that the
"defendant was over [eighteen] years of age and at least one of
his co[-]conspirators whom the defendant knew was a member of the
conspiracy was under [sixteen] years of age." (Id. at 18540).
Collins's attorney responded, "Fine." (Id.).
After the court charged the jury as such, Collins's attorney stated
that he "disagree[d] with the court that s[cie]nter is not required" for
first-degree conspiracy. (Id. at 20950-51). The court replied
that "the law does not support that position," and Collins's attorney
said nothing further on the matter. (Id.). (2) Multiple Conspiracies
Also in its conspiracy charge to the jury, the court noted that "the
defendants contend that as to the conspiracy count the [prosecution's]
proof fails to show the existence of one overall conspiracy" and instead
"may show several separate conspiracies with various groups or members."
(Id. at 20841). The court instructed the jury that whether
there existed "a single unlawful agreement or many such agreements or
indeed no agreement at all" was "a question of fact that you the jury
determine in accordance with the instructions I'm about to give you."
The court further stated:
If you find that [the] conspiracy charge[d] in the
indictment did not exist you cannot find the
defendant guilty of a conspiracy that is not
charged in the indictment. . . . [I]n other words,
if you find that the conspiracy charged in the
indictment did not exist you cannot find the
defendant guilty of that conspiracy charge. This
is so, even if you find that a defendant was a
member of some conspiracy other then the one
charged in the indictment.
(Id. at 20, 842). Following the charge, counsel for
petitioners' co-defendant argued that the court had not informed the jury
that it "must acquit" if it found multiple conspiracies. (Id.
at 20936-37). The court responded, "I think I did say that. I will rest
on the record." (Id. at 20937). The attorneys for Gonzalez and
several other co-defendants joined in the argument. (Id. at
20937-39, 20955-56). During deliberations, the jury sent a note to the court asking whether
it could find any defendant guilty of conspiracy if it found that the
organization that sold the cocaine with red tops was "independent of" the
orange top organization, or, alternatively, if it found that "Red and
Orange Top operated together for only a portion of the time charged."
(Id. at 21281-82). After conferring with the other defense
attorneys, counsel for Rafael Perez, petitioners' co-defendant, stated
that the defendants requested a charge "directing an acquittal in the
event the jury concludes something other than a single conspiracy was
proved." (Id. at 21286). The court ruled that it would
"basically" repeat its previous charge. (Id. at 21288,
The court then instructed the jury that it would be "inaccurate" and
"misleading" to answer its questions in the negative, but instead would
give a "short recharge on various aspects of conspiracy." (Id.
at 21299). The court reminded the jurors that whether there existed a
single conspiracy, multiple conspiracies, or no conspiracy at all was a
question of fact for the jury to decide. (Id.). In addition,
the court reiterated that if the jurors found that "the conspiracy
charge[d] in the indictment did not exist, . . . or that a conspiracy
with separate and distinct purposes existed, then you cannot find the
defendant guilty of the conspiracy charged." (Id. at 21301-02).
The court further added that if "you find that the conspiracy charged
in the indictment existed between any of the defendants you must then decide as to each defendant on an
individual basis whether that defendant joined the conspiracy with
knowledge of any of its unlawful purposes or some of its unlawful
purposes. . . . [E]ach defendant is entitled to individual consideration
of the proof." (Id. at 21301-02). The court also gave general
instructions concerning the definition of a conspiracy and, specifically,
the definitions of single versus multiple conspiracies. (Id. at
The defense attorneys objected to the supplemental charge as
"unbalanced." The court overruled the objection, stating that it would
"rest on the record." (Id. at 21304-06).
ii. Charge on the Nature of Deliberations
Before sending the jurors into the jury room, the court reminded each
that he or she had "given your oath that you will consult with each other
and deliberate with the view  towards reaching an agreement in this
case." (Id. at 20963). The court noted that the purpose of the
trial was "to have the jury reach a verdict as to each defendant if
humanly possible as consistent with your principles." (Id. at
20964). The court instructed the jurors to be "calm," "open-minded," and
"rational," and to "talk to each other and share your views for as long
or as short as may be necessary." (Id. at 20965).
On May 10, 1995, eight days after commencing deliberations, the jury
sent a note to the court asking for "very `specific' instructions as to
what deliberations among jurors consist of." (Id. at 21350).
The note continued, "for example, is saying, `I did not believe the testimony of one witness and I
have nothing more to say' sufficient for deliberation?" (Id.).
In a colloquy outside the presence of the jury, the court proposed that
it would give the jurors a "similar instruction [to] that I have given
before about the duty to deliberate." (Id. at 21352). Counsel
for Collins then asked that the court include language noting that the
deliberations had already lasted "several days," and stating that if a
juror was "still of a certain mind that you do not accept the credibility
of a witness, . . . [the] juror does have a right after exchanging their
views to hold firm to what it is they concluded based upon their
deliberation and all the evidence they heard." (Id. at
21353-54). After the court responded that it was "not giving a full
Alien charge yet," all of the defendants joined in Collins's
arguments. (Id. at 21354).
The court then charged the jury as follows:
That is not deliberation. That is a refusal to
participate in deliberation. We have discussed
this on a number of occasions. You each took an
oath, you took an oath to follow the law, to
evaluate the testimony, you took an oath to confer
with each other and review all of the testimony
and apply the law to it fairly to both sides. You
took an oath that you would apply the standard of
reasonable doubtthat's doubt based on
reasonand not arbitrarily reject the
testimony of any witness or refuse to consider it.
Your duty as jurors is to discuss among yourselves
using reason, logic and common sense. You have
taken an oath to do that and it is your sworn duty
to do so.
This has been a long case as we have discussed on
many occasions. Everyone has put a lot of effort into this case and probably
most of all[,] all of you. You have given your
oath that you would consult with one another,
deliberate with a view towards reaching an
agreement that could be fair to both sides, that
you would never resort to sympathy or prejudice or
be arbitrary or resort to speculation and that you
would follow the law and all principles. The
purpose of this trial is to have you, the jury,
reach a verdict for each defendant if humanly
possible, consistent with your principles. No jury
will ever be better equipped than you to reach
Obviously each of you should not hesitate to
re-examine your views and if you feel that in
reason you cannot accept something, then you may
say so and give a reason for it. However, you
cannot arbitrarily reject any testimony and you
must apply the law as it has been given to you, so
when you go back to the jury room now, remember
your oath as jurors. Remember that you have a duty
to deliberate, remember that you should be fair
and calm and rational. Use reason, logic, and
common sense. If you are stuck on one count, go
on. Do what you can fairly.
This has been long, you are tired. We all
understand that, but we have as much time as we
need and we will take it. Please retire, remember
your oath as jurors and continue your
deliberations. Thank you.
(Id. at 21355-50).
In addition to objections made by petitioners' co-defendants,
Collins's counsel objected to the charge as "unbalanced." (Id.
at 21358). The other defendants joined in Collins's objection.
(Id.). The court rejected the defendants's challenges to the
charge. (Id.). The jury continued to deliberate and returned a
verdict five days later, on May 15, 1995. 5. Petitioners' Convictions and Sentences
Llaca was convicted of three counts of murder in the second degree, two
counts each of attempted murder in the second degree and assault in the
second degree, one count of conspiracy in the first degree, and four
counts of criminal possession of a weapon in the second degree. He was
sentenced to an aggregate indeterminate prison sentence of 116 1/3 years
to life. The jury failed to reach a verdict with respect to the following
charges against Llaca: one count of attempted murder in the second
degree, one count of assault in the first degree, and two counts of
possession of a weapon in the second degree.
Gonzalez was convicted of four counts of murder in the second degree,
one count each of attempted murder in the second degree, conspiracy in
the first degree, assault in the second degree, and criminal sale of a
controlled substance in the third degree, and five counts of criminal
possession of a weapon in the second degree. He was sentenced to an
aggregate indeterminate prison term of 141 2/3 years to life.
Collins was convicted of conspiracy in the first degree and sentenced
to an indeterminate prison term of 20 years to life. The jury failed to
reach a verdict on second-degree murder and weapons possession charges.
On May 8, 1997, however, following a retrial, Collins was convicted of
those charges and later sentenced to concurrent prison terms of 25 years
to life and seven and one half to fifteen years, respectively, to run consecutively to his sentence for the conspiracy conviction.
See Collins, 306 A.D.2d 180.
As to the remaining six defendants tried with petitioners, the jury
returned guilty verdicts on sixty-three of sixty-four counts charged
against them, and was unable to reach a verdict on one count of
third-degree criminal possession of a weapon. (Trial Tr. at 21453-89).
C. Appellate Review
1. Appellate Division
Petitioners and their five co-defendants appealed jointly to the New
York Appellate Division, First Department, raising a number of claims.
Llaca argued that (1) the prosecutor exercised peremptory challenges to
remove blacks from the jury panel, (2) his co-conspirators' out-of-court
statements should not have been admitted into evidence, and (3) the trial
court's supplemental charge was an improper, unbalanced Allen
charge. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. I, Ex. B).
Gonzalez argued that the trial court (1) erred by failing to instruct
the jury that it "must acquit" if it found multiple conspiracies rather
than the single over-arching conspiracy charged in the indictment, and
(2) improperly charged the jury on the nature of deliberations.
(Id., Ex. C). Gonzalez also "join[ed] in the points of all his
Collins argued that (1) the trial court erred by admitting the
stipulation into evidence that Collins had been incarcerated, (2) the trial court erred by denying Collins's motion
to sever his trial from that of his co-defendants, and (3) the trial
judge improperly charged the jury as to conspiracy in the first degree.
(Resp't Opp. to Collins Pet., App. Vol I, Ex. A).
In a memorandum dated March 30, 2000, the Appellate Division affirmed
the convictions of all three petitioners. Justice Rosenberger dissented,
opining that the trial court erred in admitting into evidence the
stipulation that Collins had been incarcerated. See People v. De Los
Angeles, 270 A.D.2d 196, 707 N.Y.S.2d 16 (1st Dept. 2000). Justice
Rosenberger granted Collins leave to appeal to the New York Court of
Appeals. See People v. Collins, 95 N.Y.2d 840 (2000). The
relevant portions of the Appellate Division decision are discussed below.
With respect to Collins's and certain of his co-defendants' claims
that the trial court had improperly denied their severance motions, the
Appellate Division held:
The court properly exercised its discretion in
denying defendants' motions for severance since
most of the People's evidence was introduced to
establish the joint enterprise, which evidence
applied to all defendants. The trial lasted eight
months, with the People presenting some 70
witnesses, and to have conducted multiple trials
would have violated the strong public policy
favoring joinder and would have turned an already
extended trial into several such trials, with
security problems associated with disclosure of
the identity of witnesses through repetitive
appearances. Furthermore, the record reveals that
there was no irreconcilable conflict between the defenses
presented nor was there a significant danger that
any alleged conflict led the jury to infer any
defendant's guilt. Incidents during the trial
wherein some defendants elicited evidence that
other defendants found objectionable did not
require a severance, since no defendant took an
aggressive adversarial stance against another, and
since the evidence so elicited was cumulative to
evidence elicited by the People or was
People v. De Los Angeles, 270 A.D.2d at 197-98 (internal
b. Batson Challenge
With respect to Llaca's and certain of his co-defendants' arguments on
appeal that (1) the Batson claim was timely, (2) a prima facie
case of discrimination had been demonstrated, and (3) the prosecutor's
reasons for his challenges to the above-mentioned jurors had been
pretextual, the Appellate Division held:
Defendants failed to preserve for appellate review
their current contentions that the court did not
follow the proper three-step procedure and that
the prosecutor's explanations for his peremptory
challenges of certain prospective jurors were
pretextual, and we decline to review them in the
interest of justice. Were we to review these
claims, we would find that the record, read as a
whole, establishes that the court followed the
proper protocols and made a distinct finding that
the reasons proffered by the prosecutor were not
pretextual, and we would further find that this
factual determination, which largely turned on the
credibility of the prosecutor, was supported by
Id. at 198. c. Co-Conspirator Statements
With respect to his challenge to the trial court's admission of
co-conspirator statements, Llaca argued that the prosecution was required
to (1) establish a prima facie case of conspiracy at a pretrial
evidentiary hearing, and (2) demonstrate that the statements were
reliable and that the declarants were unavailable to testify. The
Appellate Division held that:
Defendants' various challenges to the
admissibility of co[-]conspirators'  statements
are unpreserved and we decline to review them in
the interest of justice. Were we to review these
claims, we would find that the statements were
Id. at 199.
d. Stipulation Regarding Collins's
As to Collins's argument that the stipulation regarding his
incarceration had improperly been read to the jury, the Appellate
Division held, with Justice Rosenberger dissenting, that Collins's
attorney had opened the door to evidence of Collins's incarceration by
questioning the detectives about whether they had seen Collins during
their surveillance even though counsel was "keenly aware that the
detectives could not have seen [Collins] at the locations specified
because [Collins] resided elsewhere, at the New York Correctional
facility on Rikers Island." Id. at 200. The Appellate
Division also stated that Collins's attorney's questions "tended to
mislead the jury," and the prosecutor was permitted to "clarify" the
issue because Collins had "opened the door." Id. at 200-01. The Appellate Division noted that Collins's counsel had not "agreed to
the "stipulation," but found the issue unpreserved, because "counsel
rejected the court's offer to inform the jury that he did not agree to
the stipulation." Id. at 200. Further, the Appellate Division
held that Collins suffered no prejudice from the "one passing reference"
to his incarceration. Id.
e. Jury Instructions
The Appellate Division also rejected (1) Collins's argument that the
trial court improperly instructed the jury on the age requirement of the
conspiracy count, and (2) Gonzalez's argument that the trial court's
multiple conspiracy charge had been improper, stating that "[v]iewed as a
whole, the court's charge and supplemental instructions with respect to
conspiracy in the first degree and multiple conspiracies conveyed the
appropriate legal principles." Id. at 199.
Further, with respect to Llaca and Gonzalez's argument that the trial
court improperly instructed the jury on the nature of deliberations, the
Appellate Division held that "[t]he court's response cautioning the jury
against arbitrarily disbelieving a witness was proper, in context, since
the court defined arbitrariness in terms of lack of reason."
Id. at 199.
2. Court of Appeals
On September 12, 2000, the Court of Appeals denied Llaca and Gonzalez
leave to appeal, "without prejudice to renew upon decision" in
People v. Collins. (Resp't Opp. to Llaca and Gonzalez Pets.,
App. Vol. III, Exs. K, L). On June 5, 2001, the Court of Appeals affirmed Collins's conviction. See People v.
Collins, 96 N.Y.2d 837 (2001).
As to Collins's severance claim, the Court of Appeals stated that
"[Collins's] arguments with respect to the denial of his motion for
severance . . . are without merit." Id. at 838. As to Collins's
argument with respect to the stipulation, the Court of Appeals stated:
On appeal, [Collins] argues that the trial court
erred in denying his motion for a mistrial after a
"stipulation" was read to the jury stating that
[Collins] was incarcerated from February 19, 1992
to the date of the trial about two and a half
years later. On this record we conclude that the
trial court did not abuse its discretion as a
matter of law by denying the motion for a
Collins. 96 N.Y.2d at 838.
As to Collins's claim that the trial judge made "hosfile" and
"demeaning" comments and had "denigrated" the defense, a claim that he
did not bring before the Appellate Division, the Court of Appeals denied
it as unpreserved.*fn5 Id. at 838. The Court of Appeals also
rejected Collins's challenge to the age instruction of the conspiracy
charge as unpreserved. Id. Finally, with respect to Collins's
argument regarding the court's instruction on the nature of
deliberations, the Court of Appeals rejected the claim as "without
merit." Id. Neither Llaca nor Gonzalez renewed their leave applications before
bringing petitions for writs of habeas corpus.
D. The Instant Petitions
Llaca filed a petition for a writ of habeas corpus on October 25, 2001,
arguing that (1) the trial court improperly denied his Batson
challenge, (2) his co-conspirators' out-of-court statements should not
have been admitted into evidence, and (3) the trial court incorrectly
instructed the jurors on the nature of deliberations. (Llaca Pet. at
Gonzalez also filed a petition for a writ of habeas corpus on October
25, 2001, arguing that the trial court (1) erred by failing to instruct
the jury that it "must acquit" if it found multiple conspiracies rather
than the single over-arching conspiracy charged in the indictment, and
(2) improperly charged the jury on the nature of deliberations. (Gonzalez
Pet. at ¶ 13).
By letters dated April 3, 2002, and April 24, 2002, Gonzalez asked the
Court to hold his petition in abeyance so that he could return to the New
York Appellate Division and exhaust the following two claims that were
not raised in his petition: (1) his Batson application was
improperly denied, and (2) his appellate attorney provided ineffective
assistance by not raising [EDITOR'S NOTE: THIS PAGE IS BLANK] his Batson claim on appeal. By orders dated May 1, 2002,
and May 9, 2002, the Court granted Gonzalez's request. On October 16,
2002, the New York Court of Appeals denied Gonzalez's request for leave
to appeal, stating that "there is no question of law which ought to be
reviewed by the Court of Appeals." (Resp't Aff. in Response to Gonzalez
Am. Pet., Ex. C).
On November 5, 2002, Gonzalez requested leave to amend his petition to
include three additional claims: (1) the prosecutor exercised peremptory
challenges to remove African-Americans from the jury, (2) Gonzalez's
trial counsel provided ineffective assistance by failing to make a timely
Batson application, and (3) his appellate counsel provided
ineffective assistance in his leave application to the Court of Appeals.
(Gonzalez Aff. dated 11/5/02 at ¶ 6 ("Gonzalez Am. Pet.")). On
November 19, 2002, the Court granted Gonzalez's motion to amend his
petition. Thereafter, Gonzalez requested that "his two claims regarding
ineffective assistance of trial and appellate counsel be dismissed."
(Gonzalez Mem. of Law dated 3/5/03 at 11, n.3).
Collins filed a petition for a writ of habeas corpus on June 21, 2002.
The form petition Collins used contained an instruction to include the
grounds being raised in the petition. Collins, however, left this entry
blank. (See Collins Pet. at ¶ 13). On September 13, 2002, Judge
Gorenstein ordered Collins to complete the relevant section of his
petition, stating that "Collins had otherwise carefully completed the petition and even
included a typed listing of the grounds raised in his state court
appeals" and "[r]ather than go through the exercise of returning the
petition thereby risking the possibility that an argument might
be made that the new petition should be deemed untimely the Court
finds that the more sensible course is to allow Collins to amend the
petition to state the grounds that he intends to raise." Collins v.
Bennett, 02 Civ. 4807 (RMB) (GWG) (S.D.N.Y. Sept. 13, 2002).
Thereafter, by letter dated September 23, 2002, Collins informed the
Court that he wanted to raise all five of the grounds that he raised
before the Court of Appeals, namely, that (1) the trial court erred by
admitting a stipulation into evidence that petitioner had been
incarcerated; (2) the trial court erred by denying petitioner's motion to
sever his trial from that of his co-defendants; (3) the trial judge
delivered an improper Alien charge to the jury; (4) the trial
judge improperly made comments denigrating defendants and defense
counsel; and (5) the trial judge improperly charged the jury as to
conspiracy in the first degree. (See Collins's Mem. Endorsed Letter to
Court dated Sept. 23, 2002 ("Collins Am. Pet.")).
For the reasons set forth below, petitioners' claims are rejected and
their petitions are dismissed. DISCUSSION
1. Standard of Review
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides
the applicable standard of review. See 28 U.S.C. § 2254. AEDPA
provides that a habeas petition may not be granted unless the state
court's adjudication of the claim on the merits "resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1); see also Williams v.
Taylor, 529 U.S. 362 (2000).
A state court adjudicates a petitioner's claims "on the merits" when it
disposes of the claim on the merits and reduces its disposition to
judgment. Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002)
(citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
In addition, the Second Circuit has held that the state court "need not
mention the argument raised or cite relevant case law in order for its
ruling to constitute an `adjudication on the merits.'" Brown,
283 F.3d at 498 (quoting Aparicio v. Artuz, 269 F.3d 78, 93-94
(2d Cir. 2001)).
A decision is contrary to clearly established federal law when a state
court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law, or the state court decides a case differently
than the Supreme Court had on a set of materially indistinguishable facts. See
Williams, 529 U.S. at 406. A state court's decision involves
an unreasonable application of clearly established federal law when the
state court identifies the governing legal principle from Supreme Court
decisions, but unreasonably, not merely incorrectly, applies that
principle to the facts of the prisoner's case. Id., 529 U.S. at
AEDPA also specifies the applicable standard for federal review of
state factual findings: a petitioner must demonstrate that a decision was
"based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(2). In habeas proceedings, a "determination
of a factual issue made by a State court shall be presumed to
be correct." 28 U.S.C. § 2254(e)(1). Additionally,
it is the petitioner's burden to rebut the presumption of correctness
"by clear and convincing evidence." Id.
2. Procedural Default
A federal court may consider a petition for habeas corpus only if the
petitioner has exhausted all state judicial remedies. See
28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275
(1971); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997);
Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Dave v.
Attorney Gen., 696 F.2d 186, 190 (2d Cir. 1982) (en banc).
The Second Circuit "has formulated a two prong test for determining
whether an applicant for federal habeas relief has exhausted his state remedies." Bacchi v. Senkowski,
884 F. Supp. 724, 730 (E.D.N.Y. 1995), aff'd, 101 F.3d 683 (2d Cir.
1996). First, the petitioner must have "fairly presented" his federal
claims to the state's highest court. Bossett v. Walker,
41 F.3d 825, 828 (2d Cir. 1994) (quoting Picard, 404 U.S. at 275);
see also Daye, 696 F.2d at 190-91 n.3. "Second, the petitioner
must have used all methods in the state appellate process, including
direct appeal to the highest state court, before filing a writ of habeas
corpus." Robertson v. Artuz, No. 97 Civ. 2561, 1999 U.S. Dist.
LEXIS 19994, at *8 (S.D.N.Y. Jan. 4, 2000); see also Klein v.
Harris. 667 F.2d 274, 282 (2d Cir. 1981); Bacchi,
884 F. Supp. at 730.
A petitioner may fairly present the constitutional nature of his claim
to the state courts "even without citing chapter and verse of the
Constitution," by demonstrating: (a) reliance on pertinent federal cases
employing constitutional analysis, (b) reliance on state cases employing
constitutional analysis in like fact situations, (c) assertion of the
claim in terms so particular as to call to mind a specific right
protected by the Constitution, or (d) allegation of a pattern of facts
that is well within the mainstream of constitutional litigation.
Priester v. Mantello, No. 99 Civ. 4473, 2001 U.S. Dist. LEXIS
10428, at *8 (S.D.N.Y. July 26, 2001) (citing Dave. 696 F.2d at 194);
see also Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir.
1984). If a petitioner has not exhausted his state remedies, he must return to
state court. See Engle v. Isaac. 456 U.S. 107, 125 n.28 (1982);
Cadilla v. Johnson, 119 F. Supp.2d 366, 374 n.7 (S.D.N.Y.
2000). If there is no available state forum to pursue a state remedy
because of a procedural bar, the claim may be deemed forfeited. See
Teague v. Lane, 489 U.S. 288, 297-99 (1989); see also Grey v.
Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("a federal claim [need not]
be presented to a state court if it is clear that the state court would
hold the claim procedurally barred") (quoting Harris v. Reed,
489 U.S. 255, 263 n.9 (1989)).
Under such circumstances, a petitioner cannot obtain federal habeas
review of a claim on the merits "unless [he] can show `cause' for the
default and `prejudice attributable thereto,' or demonstrate that failure
to consider the federal claim will result in a `fundamental miscarriage
of justice.'" Harris, 489 U.S. at 262 (internal citations
omitted); see also Murray v. Carrier, 477 U.S. 478, 493-94
(1986); Wainwright v. Sykes, 433 U.S. 72, 72 (1977);
Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Cause
exists if "the prisoner can show that some objective factor external to
the defense impeded counsel's effort to comply with the State's
procedural rule." Murray, 477 U.S. at 488. Prejudice exists if
"`there is a reasonable probability' that the result of the trial would
have been different" absent the complained of constitutional violation.
Stickler v. Greene, 527 U.S. 263, 289 (1999). B. The Claims
1. Collins; Severance
Collins contends that the trial court committed "reversible error" by
declining to sever his case from those of his co-defendants. (See Collins
Am. Pet., Ground Two). Specifically, Collins alleges that the State
presented evidence of "heinous crimes, violent acts, and homicides
attributable solely to his co-defendants," and such evidence "created a
danger of transference of guilt so great that he was denied a fair
trial." (Id.). For the reasons set forth below, Collins's
argument is without merit.
a. Applicable Law
New York law permits joinder where "all the offenses charged are based
on a common scheme or plan." New York Crim. Proc. Law § 200.40(1)(b)
(McKinney 2002). A strong public policy favors joinder "because it
expedites the judicial process, reduces court congestion, and avoids the
necessity of recalling witnesses." People v. Mahboubian,
74 N.Y.2d 174, 183 (1989); see also People v. Cardwell. 78 N.Y.2d 996
The decision whether to grant a defendant's motion for severance is
"committed to the sound discretion of the trial judge." See Opper v.
United States, 348 U.S. 84, 95 (1954); United States v.
Cardascia, 951 F.2d 474, 482 (2d Cir. 1991); United States v.
Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989). A trial court's
denial of a severance motion is considered "virtually unreviewable." United States v. Friedman,
864 F.2d 535, 563 (2d Cir. 1988); see also United States v.
Martinez, 922 F.2d 914, 922 (1st Cir. 1991) (at the trial level, a
separate trial will be ordered only upon "a strong showing of
At the appellate level, a denial of a severance motion will only be
reversed upon a showing that the trial court abused its discretion.
See Cardascia, 951 F.2d at 482; United States v.
Salameh, 152 F.3d 88, 115 (2d Cir. 1998). An appellant must
establish that he or she "was so severely prejudiced by the joinder as to
have been denied a fair trial, not that he [or she] might have had a
better chance for acquittal at a separate trial." Grant v.
Hoke. 921 F.2d 28, 31 (2d Cir. 1990) (citations omitted). Incidental
prejudice, which is almost always present when multiple defendants who
played different roles are tried together, will not be enough. See
Martinez, 922 F.2d at 922.
i. Procedural Default
The State contends that, although Collins's first habeas petition was
timely filed, because Collins left blank the pertinent section of the
petition regarding claims raised, and did not file an amended petition
until approximately twenty days past the expiration of AEDPA's one-year
statute of limitations, Collins's amended petition is untimely.
Consequently, the State argues, all of Collins's claims, including the
instant severance claim, are time-barred. For the reasons set forth in
Judge Gorenstein's order dated September 13, 2002, the State's argument is rejected and Collins's petition is deemed timely filed.
Accordingly, as Collins has also properly exhausted his state remedies
with respect to this claim, I address the merits below.
ii. The Merits
Collins has failed to establish prejudice of a magnitude such that he
was denied a fair trial. In Mahboubian, the Court of Appeals
set forth a two-prong test for deciding whether severance is required.
Mahboubian, 74 N.Y.2d at 184. The Court of Appeals held that
severance is compelled where the core of each
defense is in irreconcilable conflict with the
other and where there is a significant danger, as
both defenses are portrayed to the trial court,
that the conflict alone would lead the jury to
infer defendant's guilt.
Here, Collins has not shown that the trial court abused its discretion
by failing to grant his motion for severance. As the Court noted in
Mahboubian, while a trial court must decide a severance motion
"prospectively, based on its discretionary assessments of the strategies
and evidence as forecast by the parties," an appellate court has the
"full trial record by which [it] may, within the ambit of [its] review
powers, determine the existence of irreconcilable conflict and its
possible effect on the verdict." Id. at 184-185. The record
does not reveal an irreconcilable conflict between Collins's defense and
that of his eight co-defendants such that the conflict alone would have
led the jury to infer Collins's guilt. Id. at 183. Furthermore, the circumstances of this case supported a joint trial.
The charges against Collins and his eight co-defendants were based on a
"common scheme or plan." Thus, under the New York Criminal Procedure Law,
joinder was appropriate. See New York Crim. Proc. Law §
200.40(1)(b). Collins and his eight co-defendants were all direct
participants in the conspiracy and each played significant roles in the
managerial structure of the crack selling locations around which the
conspiracy revolved. The Court must also consider that the trial in this
case lasted seven months and required the testimony of numerous
witnesses. Multiple separate trials would have violated the strong public
policy favoring joinder.
This case is not one where "the risk that the jury will not, or cannot,
follow instructions is so great, and the consequences of failure so vital
to the defendant, that the practical and human limitations of the jury
system cannot be ignored." Bruton v. United States,
391 U.S. 123, 135 (1968). This was a typical multi-defendant
drug case; it was not so intricate as to require severance. See
Campbe11 v. Andrews, No. 97 Civ. 2534, 1999 U.S. Dist. LEXIS 16965,
*14 (E.D.N.Y. Oct. 19, 1999).
Moreover, the jury carefully weighed the evidence and fairly
distinguished among the separate defendants when reaching its verdict.
The jury requested numerous exhibits and clarifications of the charge.
The jury clearly evaluated the evidence against each defendant
separately, as demonstrated by the fact that the jury failed to reach a verdict on the second-degree
murder and second-degree weapons possession charges against Collins.
I find that Collins has failed to demonstrate an abuse of the trial
court's discretion in denying his motion for severance. Consequently,
this claim fails.
2. Llaca and Gonzalez: Batson Challenge
Llaca and Gonzalez contend that their constitutional rights were
violated by the prosecutor's use of peremptory challenges to excuse
several African-American jurors. (Llaca Pet. at 5A; Gonzalez Am. Pet.,
Ground Three). As demonstrated below, these claims are procedurally
barred and, in any event, without merit.
a. Applicable Law
In Batson v. Kentucky, the Supreme Court reaffirmed the
long-standing principle that the Equal Protection Clause is violated when
prosecutors "challenge potential jurors solely on account of their race,"
and set forth a three-step, burden shifting analysis to determine whether
a peremptory strike has been exercised in a racially discriminatory
manner. 476 U.S. 79 (1986). The trial court must (1) decide whether the
opponent of the peremptory challenge has made a prima facie showing that
the challenge was exercised on the basis of race; if so, (2) decide
whether the proponent of the strike has satisfied the burden of offering
a race neutral explanation for striking the potential juror; and, if so,
(3) make a determination whether the opponent of the strike has carried his burden of persuasion of proving
purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767
In the first step of the analysis, the opponent of the challenge must
show that the circumstances raise an inference of discrimination.
Purkett, 514 U.S. at 767 (citation omitted). The second step
does not require an explanation that is persuasive or even plausible; the
issue is whether the non-movant's explanation is facially valid.
Id. at 767-68. Further, unless a discriminatory intent is
inherent in the non-movant's explanation, the reason offered will be
deemed race neutral. Id. at 768 (citation omitted). The third
step of the Batson inquiry requires the judge to make "an
ultimate determination on the issue of discriminatory intent based on all
the facts and circumstances." United States v. Alvarado,
923 F.2d 253, 256 (2d Cir. 1991). Because it is largely an evaluation of
credibility, the trial judge's finding with respect to discriminatory
intent is afforded a high level of deference. Batson. 476 U.S.
at 98; see also Hernandez v. New York. 500 U.S. 352, 365 (1991)
(the decisive question will be whether counsel's race-neutral explanation
for a peremptory challenge should be believed).
Additionally, the Supreme Court has made clear that to claim the rights
specified in Batson, a defendant must object in a timely
fashion. 476 U.S. at 99. The Second Circuit has held that failure to
object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the
objection. McCrory v. Henderson, 82 F.3d 1243 (2d Cir. 1996).
i. Procedural Default
Llaca's habeas petition with respect to this claim was timely filed.
Additionally, Llaca submitted the claim on direct appeal to the Appellate
Division, and his leave to appeal to the New York Court of Appeals was
denied. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol. III, Exs. F,
G, K). Llaca has procedurally defaulted with respect to this claim,
however, because, as explained in further detail below, he failed to
preserve it at the trial level.
Gonzalez's Batson claim is barred by procedural default for a
number of reasons: it is untimely, unexhausted, and as with Llaca's
claim, unpreserved. Gonzalez had thirty days from June 5, 2001, the date
the Court of Appeals decided People v. Collins, to renew his
leave application to the Court of Appeals. Because Gonzalez did not file
a motion to renew by that date, his state court judgment became final on
July 5, 2001. Pursuant to AEDPA's one-year time limitation, Gonzalez then
had until July 5, 2002, to seek federal habeas review. Gonzalez did not
file his amended habeas petition until November 5, 2002, four months
beyond the expiration of AEDPA's one-year statute of limitations.
Consequently, the claim is time-barred.
Further, although this Court granted Gonzalez permission to return to
state court to exhaust the new claims raised in his amended habeas petition, and the Court of Appeals
granted Gonzalez's request for an extension of time to file his renewed
leave application, Gonzalez failed to raise the Batson claim in
his renewed leave application. (Resp't Aff. in Response to Gonzalez Am.
Pet., Ex. A). Consequently, the claim is unexhausted. Additionally, as
with Llaca, Gonzalez failed to preserve the claim at the trial level.
In any event, I address the merits, as well as the preservation issue,
ii. The Merits
The trial court indicated that the defense's Batson objection
was untimely because it was made during the second round of jury
selection, after the dismissal of the first jury panel. (See Trial Tr. at
551 (before addressing the merits, the trial judge noted that the
challenge should have been made "so that the Court could have acted
appropriately at the appropriate time")). Because the objection was
raised prior to the completion of jury selection, however, it was not
waived. Thus, although the trial court incorrectly stressed the
untimeliness of the objection, the court did not preclude petitioners
from raising their Batson claim. The court ultimately
adjudicated the claim based on its merits. Llaca and Gonzalez, therefore,
were not prejudiced by this error.
With respect to the first step of the Batson analysis, the
trial court found that petitioners had not established a prima facie
showing of discrimination. (10/13/94 Proceedings at 551, 559). Nonetheless, the trial court proceeded to step two by
asking the prosecutor to give an explanation for each of his strikes.
(Id.). After such explanations were offered, the trial court
proceeded to step three, making a finding that the prosecutor's reasons
for his challenges were race neutral and not pretextual. (Id.
at 558). Specifically, the judge determined that there was "clear reason
and no pretext" involved and the "challenges were not exercised to
discriminate on the basis of race." (Id.).
Llaca and Gonzalez failed to preserve their Batson claim for
appellate review because, although an objection was made prior to the
trial court's request for explanations, petitioners failed to thereafter
object to the prosecutor's explanations as pretextual. See People v.
Cruz, 200 A.D.2d 581, 606 N.Y.S.2d 291 (2d Dept. 1994)
(Batson issue not preserved for appellate review where, when
prosecutor provided an explanation for peremptory challenges, "defense
counsel did not indicate any dissatisfaction with the explanation . . .
at no time prior to the swearing-in of the jury did the defense counsel
object to the court's rulings, nor did he press the issue by requesting a
hearing or moving for a mistrial"). Consequently, as the appellate court
rejected petitioners' pretext claim based on an independent state
preservation bar, see De Los Angeles, 270 A.D.2d at 197-98
("[Llaca, Gonzalez, and their co-defendants] failed to preserve for
appellate review their current contentions that the court did not follow
the proper three-step procedure and that the prosecutor's explanations for his peremptory challenges of
certain prospective jurors were pretextual"), Llaca and Gonzalez have
procedurally defaulted their Batson claim.
Further, neither Llaca nor Gonzalez has attempted to show cause for the
default and resulting prejudice, nor would the Court's failure to
consider this claim result in a "fundamental miscarriage of justice."
See Coleman v. Thompson. 501 U.S. 722, 750 (1991) (when a
"state prisoner has defaulted his federal claims in state court pursuant
to an independent and adequate state procedural rule, federal habeas
review of the claim is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice"). Consequently, the claim
is procedurally barred.
In any event, the determination by the trial court that the
prosecutor's reasons for his challenges were race neutral and not
pretextual is entitled to deference. Although one or two of the
explanations were less than compelling, overall the prosecutor's
explanations were supported by the record. Notably, at the time the
Batson objection was made, seven African-American jurors had
already been selected for service. See, e.g., Jamison v.
Duncon, No. 01 Civ. 2909, 2001 U.S. Dist. LEXIS 18589, *27 (S.D.N.Y.
Nov. 2, 2001) (no prima facie case of discrimination where 60% of
selected jurors were African-American). Accordingly, I find the
Batson claim to be without merit. 3. Llaca: Co-Conspirator Statements
Llaca asserts that the trial court improperly admitted co-conspirator
hearsay statements into evidence because the State "made no effort to
establish the unavailability" of the non-testifying co-conspirators
whose statements were introduced into evidence. (Llaca Pet. at 6-6A).
This claim is procedurally barred and, in any event, is without merit.
a. Applicable Law
New York law provides that "[a] declaration by a co-conspirator during
the course of and in furtherance of the conspiracy is admissible against
another co-conspirator as an exception to the hearsay rule." People
v. Bac Tran, 589 N.Y.S.2d 845, 850 (Ct.App. 1992) (citations
omitted); see also People v. Salko, 417 N.Y.S.2d 894, 898 (Ct.
App. 1979). This evidence may be admitted only upon a showing that a
prima facie case of conspiracy has been established. Salko, 417
N.Y.S.2d at 898; see also People v. Fernandez, 670 N.Y.S.2d 840,
844 (1st Dep't 1998). Additionally, the determination whether a
prima facie case of conspiracy has been established must be made without
relying upon the declarations sought to be introduced.
Salko. 417 N.Y.S.2d at 898; Fernandez, 670
N.Y.S.2d at 844.
On habeas review, however, the relevant issue for Confrontation Clause
purposes is whether the admission of these hearsay statements violates
federal law governing co-conspirator statements, not state law. See
Glenn, 98 F.3d at 728. Specifically, "even if the admission of
co-conspirator statements violated New York law, which unlike federal law requires
independent indicia of reliability for a co-conspirator's statement, the
statement does not offend the federal Confrontation Clause if it falls
within [Federal Rule of Evidence] 801(d)(2)'s co-conspirator exception."
Under Rule 801(d)(2)(E), a statement is admissible hearsay if the court
finds that (1) there was a conspiracy; (2) its members included the
declarant and the party against whom the statement is offered; and (3)
the statement was made both (a) during the course of and (b) in
furtherance of the conspiracy. See Glenn, 98 F.3d at 728;
United States v. Rivera, 22 F.3d 430, 435-36 (2d Cir. 1994).
Additionally, a trial court "need only find by a preponderance of the
evidence that a conspiracy existed." Glenn, 98 F.3d at 728.
Once the court has found that a conspiracy exists, such a factual finding
may not be disturbed absent clear error. Id.
i. Procedural Default
At the pretrial Evangelista hearing, Llaca argued that the
evidence was insufficient to establish his participation in the
conspiracy. (10/6/94 Proceedings at 1772-75). On appeal to the Appellate
Division, however, Llaca argued, that the prosecutor was required to (1)
establish a prima facie case of conspiracy at a pretrial evidentiary
hearing, rather than by making an offer of proof (Resp't Opp. to Llaca
and Gonzalez Pets., App. Vol. I, Ex. B at 38-39), and (2) demonstrate
that the statements were reliable and that the declarants were unavailable
to testify (Id. at 39-41). Because Llaca did not raise these
arguments at the trial level, see De Los Angeles. 270 A.D.2d at
199 ("[Llaca and his co-defendants'] various challenges to the
admissibility of co[-]conspirators' statements are unpreserved"), he has
procedurally defaulted this claim. Additionally, Llaca has not attempted
to show cause for the default and resulting prejudice, nor would the
Court's failure to consider the claim result in a "fundamental
miscarriage of justice." See Coleman, 501 U.S. at 750.
Consequently, Llaca's claim is procedurally barred.
In any event, I review the claim below, and find it to be without
ii. The Merits
The trial court had sufficient evidence to conclude that a prima facie
case of conspiracy to possess and/or sell drugs had been established and
that Llaca was a member of that conspiracy without resorting to the
hearsay statements the prosecution sought to introduce. The evidence
consisted of testimony of individuals who had worked under Llaca on
different levels, who described Llaca as not only managing various
kitchens where the crack was made, but also managing certain locations
where the crack was sold. (10/6/94 Proceedings at 1750-64, 1772-73;
10/11/94 Proceedings at 9-28). Accordingly, the trial court properly
admitted into evidence Llaca's co-conspirators's hearsay statements.*fn6 Thus, Llaca's's claim as to this issue is without
4. Collins; Stipulation Regarding Collins's
With respect to the stipulation regarding Collins's incarceration,
Collins argues, inter alia, that (1) the trial court improperly
allowed the stipulation to stand, and (2) the evidence of his
incarceration was irrelevant. (Collins Am. Pet., Ground One). Although
Collins has procedurally defaulted with respect to the first argument, I
address both arguments below and find each to be without merit.
a. Applicable Law
i. Erroneous Evidentiary Rulings
Erroneous evidentiary rulings present a constitutional issue "only
where [a] petitioner can show that the error deprived [him] of a
fundamentally fair trial." Taylor v. Curry. 708 F.2d 886, 891
(2d Cir. 1983). Specifically, the erroneous admission of evidence
constitutes a denial of due process under the Fourteenth Amendment only
if the evidence was "sufficiently material to provide the basis for conviction or to remove a
reasonable doubt that would have existed on the record without it."
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (internal
quotations omitted); see also Johnson v. Ross, 955 F.2d 178,
181 (2d Cir. 1992); Collins v. Scully, 755 F.2d 16, 19 (2d Cir.
ii. Rebuttal Evidence
Under New York law, where the opposing party "opens the door on
cross-examination to matters not touched upon during the direct
examination," a party has the right "to explain, clarify and fully elicit
[the] question only partially examined on cross-examination."
People v. Melendez, 55 N.Y.2d 445, 451 (1982) (internal
quotations omitted). The same principle applies in the context of
Rule 403 of the Federal Rules of Evidence:
The weighing of relevance under Rule 403 may be
altered when a false impression is created by
earlier testimony. That is, evidence whose
probative value might not ordinarily outweigh its
prejudicial effect if offered on direct
examination is admissible to rebut testimony
elicited on cross examination that created a false
United States v. Bilzerian, 926 F.2d 1285
, 1296 (2d Cir.
The trial court has broad discretion to determine the admissibility of
rebuttal evidence, and its ruling will not be overturned unless
"arbitrary or irrational." Id. b. Application
i. Procedural Default
Collins's habeas petition with respect to this claim was timely filed.
Additionally, Collins submitted the claim on direct appeal to the
Appellate Division and the Court of Appeals. The Appellate Division,
however, found that, although Collins's attorney did not agree to the
stipulation, because he had "rejected the court's offer to inform the
jury that he did not agree to the stipulation," Collins's argument that
the stipulation had improperly been read to the jury was unpreserved.
De Los Angeles. 270 A.D.2d at 200. Consequently, Collins has
procedurally defaulted as to that argument. See id. (because
Collins procedurally defaulted with respect to the stipulation issue,
"the sole issue [before the Appellate Division] is whether the trial
court was correct in concluding that defense counsel had `opened the
door' regarding [Collins's] incarceration."). Additionally, Collins has
not attempted to show cause for the default and resulting prejudice, nor
would the Court's failure to consider the issue result in a "fundamental
miscarriage of justice." See Coleman, 501 U.S. at 750.
In any event, I address each of Collins's arguments with respect to the
stipulation below, and find them to be without merit. ii. The Merits
First, Collins's challenge to the trial court's ruling allowing the
stipulation to stand is a challenge to a state court evidentiary ruling.
Accordingly, unless the challenged stipulation provided the basis for
Collins's conviction, no federal constitutional issue is presented.
See Dunnigan, 137 F.3d 117, 125. I find that the stipulation
did not provide the basis for the conviction. On the contrary, Collins
was convicted based on the extensive evidence of his participation in the
conspiracy, including his managerial role within the organization.
Certainly, the absence of the stipulation would not have "remove [d] a
reasonable doubt" that otherwise existed. Id. Thus, Collins's
contention that the trial court erroneously allowed the stipulation to
stand is not a question of constitutional concern and this claim for
relief is denied.
Second, the trial court's evidentiary ruling that Collins's attorney
opened the door to evidence of Collins's incarceration was an appropriate
exercise of discretion. While cross-examining several detectives who
investigated the conspiracy, Collins's attorney elicited testimony from
the detectives that they had seen Collins only once at a particular drug
selling location, in January 1992, and never afterwards. The impression
created, that because the investigating detectives had only seen Collins
on the one occasion he was not involved in the conspiracy or had
withdrawn from the conspiracy, was misleading. Collins was incarcerated
from February 1992 until the time of the trial and, therefore, could not have been observed
at the location under surveillance during that time. As such, evidence of
Collins's incarceration was properly offered "to rebut an impression
created during cross-examination." United States v. Vasquez,
267 F.3d 79, 86 (2d Cir. 2001), Consequently, as the trial court's ruling
with respect to this issue does not rise to the level of "arbitrary or
irrational," Bilzerian, 926 F.2d at 1296, Collins's contention
that the evidence was irrelevant is rejected.
5. Collins: Statements by Trial Judge
Collins argues that he was denied a fair trial because the trial judge
made "numerous hosfile and demeaning comments" during the trial
proceedings. Specifically, Collins contends that the trial court (1)
accused his attorney of engaging in "brain washing" during jury
selection, (2) stated that a defense attorney's job was to "obfuscate the
truth," and (3) threatened his attorney. (Collins Am. Pet., Ground Four).
These arguments are procedurally barred and, in any event, without merit.
a. Applicable Law
The Due Process Clause of the Fourteenth Amendment requires "`a fair
trial in a fair tribunal' before a judge with no actual bias against the
defendant or interest in the outcome of his particular case." Bracy
v. Gramley, 520 U.S. 899, 904-05 (1997) (quoting Withrow
v. Larkin, 421 U.S. 35, 46 (1975)). Only rarely, however, does a judge's conduct rise to the level of a
[J]udicial remarks during the course of a trial
that are critical or disapproving of, or even
hosfile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality
challenge. They may do so if. they reveal an
opinion that derives from an extrajudicial source;
and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair
judgment impossible. . . . Not establishing bias
or partiality . . . are expressions of impatience,
dissatisfaction, annoyance, and even anger, that
are within the bounds of what imperfect men and
women, even after having been confirmed as federal
judges, sometimes display. A judge's ordinary
efforts at courtroom administration even a
stern and short-tempered judge's ordinary efforts
at courtroom administration remain immune.
Litekey v. United States, 510 U.S. 540
, 555-56 (1994).
Further, a federal court's power to review a state claim of judicial bias
is restricted to "the narrow one of due process and not the broad
exercise of supervisory power that [it] would possess in regard to [its]
own trial court." Garcia v. Warden Dannemora Correctional
Facility, 795 F.2d 5
, 7 (2d Cir. 1986) (citations omitted). Indeed,
"a petitioner claiming that a judge's bias deprived him of a fair trial
faces a difficult task." Gayle v. Scully, 779 F.2d 802, 813 (2d
i. Procedural Default
Collins's claim with respect to the alleged "numerous hosfile and
demeaning comments" made by the judge during the trial proceedings is
barred by procedural default. Collins (1) failed to object at trial to any of the judge's comments that
he now raises in his habeas petition and (2) failed to properly exhaust
this claim. In fact, Collins raised a judicial bias claim for the first
time on appeal to the Court of Appeals (see Resp't Opp. to Collins Am.
Pet., App. Vol. II, Ex. D at 48-51), where the claim was denied as
unpreserved. Collins. 96 N.Y.2d at 838. Further, Collins has
not attempted to show cause for the default and resulting prejudice, nor
would the Court's failure to consider the issue result in a "fundamental
miscarriage of justice." See Coleman, 501 U.S. at 750.
In any event, I address the judicial bias claim below, and find it to
be without merit.
ii. The Merits
First, the alleged accusation by the trial judge that defense counsel
was engaging in "brain washing" during jury selection was merely an
admonition directed at Tukes's attorney, who was inappropriately arguing
his client's case during voir dire. There is no judicial bias evidenced
by the judge's statement.
Second, the trial judge's comment that defense counsel's "job" is to
"obfuscate the truth" occurred at a sidebar colloquy and was directed at
De Los Angeles's attorney. It is clear that this comment, as the court
expressly noted, was made in jest. It was in response to the
prosecution's statement that, in essence, De Los Angeles's attorning was
confusing the witness on the stand by his method of questioning. Here also, there is no
evidence of judicial bias.
Third, the sidebar exchanges between the court and Collins's attorney
regarding the scope of cross-examination of witness Santiago, while
hosfile at times, also lacks any evidence of judicial bias. Upon review
of the transcript, it is evident that throughout the exchange the court's
sole concern was with ensuring Collins's attorney's compliance with the
court's evidentiary rulings. In fact, Collins's attorney eventually did
comply with the court's ruling and, in so doing, was able to ask Santiago
the questions that were the subject of the sidebar discussion.
Thus, as Collins has failed to demonstrate that he was denied a fair
trial, his claim with respect to judicial bias is rejected.
6. Jury Instructions
a. Applicable Law
Errors in state jury charges are questions of state law and therefore
are not reviewable on a petition for a writ of habeas corpus absent a
showing that a jury charge deprived the defendant of a federal
constitutional right. Blazic v. Henderson, 900 F.2d 534, 540
(2d Cir. 1990). The standard of review of state jury instructions in a
habeas petition is "not whether the instruction is undesirable, erroneous
or even universally condemned [but whether] the ailing instruction by
itself so infected the entire trial that the resulting conviction violates due process." Wright v. Smith. 569 F.2d 1188,
1191 (2d Cir. 1978) (quoting CUDD v. Naughten, 414 U.S. 141,
146-47 (1970)); see also Blazic, 900 F.2d at 541.
Additionally, federal habeas review of a state court jury charge
regarding a matter of state law is limited . . . See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a
federal habeas court to reexamine state court determinations on state-law
questions"). To obtain habeas relief, "the petitioner must show not only
that the instruction misstated state law but also that the error violated
a right guaranteed to him by federal law." Id.
i. Conspiracy Charge
(1) Collins: Age Element
Collins contends that the trial court should have charged the jury
that, to convict Collins of first-degree conspiracy, the jury must find
that Collins knew that another member of the conspiracy was less than
sixteen years old. (Collins Am. Pet., Ground Five). This claim is barred
by procedural default and, in any event, without merit.
(a) Procedural Default
Collins timely filed his habeas petition and raised his claim in the
Appellate Division and the Court of Appeals. (See Resp't Opp. to Collins
Am. Pet., Vol. I, Ex. A; Vol. II, Ex. D). Collins failed, however, to
preserve the issue at the trial level. Specifically, after the trial judge stated during the
charging conference that the prosecution was required to prove only that
the "defendant was over [eighteen] years of age and at least one of his
co[-]conspirators whom the defendant knew was a member of the conspiracy
was under [sixteen] years of age," Collins's attorney responded, "Fine."
(Trial Tr. at 18538-40). Additionally, the next day, the court asked the
attorneys whether they had any "further charge requests" and no attorney
did. (Id. at 18558-60). It was not until after the judge
charged the jury that Collins's attorney stated that he "disagree[d] with
the Court that-s[cie]nter is not required" for first-degree conspiracy.
Hence, the Court of Appeals found Collins's argument with respect to the
conspiracy charge unpreserved. See Collins, 96 N.Y.2d at 838
(the Court of Appeals denied on the merits Collins's claims regarding
severance, the stipulation, and the jury charge concerning deliberations,
and held that Collins's "remaining arguments are unpreserved"). As
Collins has not attempted to show cause for the default and resulting
prejudice, nor would the Court's failure to consider the issue result in
a "fundamental miscarriage of justice," Collins's claim with respect to
the conspiracy charge is barred by procedural default. See
Coleman, 501 U.S. at 750.
In any event, I address the claim below and find it to be without
merit. (b) The Merits
The trial court's instruction oil the age element of first-degree
conspiracy did not deprive Collins of any federally-protected due
Pursuant to New York Penal Law § 105.17, a defendant commits
first-degree conspiracy "when, with intent that conduct constituting a
class A felony be performed, he, being over eighteen years of age, agrees
with one or more persons under sixteen years of age to engage in or cause
the performance of such conduct." By its plain language, the statute does
not require that the defendant know that another member of the conspiracy
is less than sixteen years old. Rather, the statute requires only that
the defendant "agree" to commit a class A felony with a person under
sixteen years of age. Thus, as the trial court correctly charged the
jury, a defendants failure to know the co-conspirator's age, or his
erroneous belief that the co-conspirator was over sixteen, provides no
defense to the crime.
Section 15.20 of the New York Penal Law explicitly states that a
defendant's failure to know a child's age is not a defense under New York
Law to any age-specific crime. The statute provides:
Notwithstanding the use of the term "knowingly" in
any provision of this chapter defining an offense
in which the age of a child is an element thereof,
knowledge by the defendant of the age of such
child is not an element of any such offense and it
is not, unless expressly so provided, a defense to
a prosecution therefor that the defendant did
not know the age of the child of believed such age
to be the same as or greater than that specified
in the statute.
N.Y. Penal Law § 15.20(3) (McKinney 1998). Thus, Collins's
ignorance or erroneous belief about a juvenile co-conspirator's age does
not absolve him of criminal liability for first-degree conspiracy.
Accordingly, as Collins has not shown "that the instruction misstated
state law," much less that it "violated a right guaranteed to him by
federal law," Collins's claim with respect to the conspiracy charge is
rejected. Estelle v. McGuire, 502 U.S. at 67-68.
(2) Gonzalez; Multiple Conspiracies
Gonzalez argues that the trial court's jury instructions with respect
to multiple conspiracies, including a supplemental instruction, were
"fundamentally flawed," because the court did not instruct the jurors
that "if they found multiple conspiracies they must acquit." (Gonzalez
Pet. at 4). This claim is without merit.
(a) Procedural Default
Gonzalez's habeas petition with respect to this claim was timely filed.
Additionally, Gonzalez submitted the claim on direct appeal to the
Appellate Division, and his leave to appeal to the New York Court of
Appeals was denied. (Resp't Opp. to Llaca and Gonzalez Pets., App. Vol.
III, Exs. I, K).
Accordingly, I address the merits below. (b) The Merits
The trial court's instruction as to multiple conspiracies did not
deprive Gonzalez of any federally-protected due process right.
Under New York law, "when the facts are such that a jury might
reasonably find either a single conspiracy or multiple conspiracies," and
the relevant indictment charges a single integrated conspiracy, the court
must give a charge "explicitly recognizing the possibility of multiple
conspiracies and directing an acquittal in the event that the jury
concludes that something other than [the] single integrated conspiracy
[charged in the indictment] was proven." People v. Leisner,
73 N.Y.2d 140, 150, 538 N.Y.S.2d 517 (1989) (noting that "jury confusion may
arise when the prosecution's proof establishes several discrete
conspiracies, but not the single integrated conspiracy charged in the
indictment"). To that end, the trial judge charged the jury that it could
find a "single unlawful agreement or many such agreements or indeed no
agreement at all" (Trial Tr. at 20841), and if it found that the
"conspiracy charged in the indictment did not exist," the jury "cannot
find the defendant guilty of that conspiracy charge . . . even if [the
jury] find[s] that a defendant was a member of some conspiracy other than
the one charged in the indictment." (Id. at 20842).
Further, in its supplemental instructions in response to the jury's
questions, the court reiterated that if it found that "the conspiracy
charged in the indictment did not exist, . . . or that a conspiracy with separate and distinct purposes
existed, then [the jury] cannot find the defendant guilty of the
conspiracy charge[d] in the indictment." (Id. at 21301). Thus,
the court did, in fact, instruct the jury that it had to return a verdict
of not guilty if it found that the over-arching, conspiracy charged in
the indictment did not exist. See United States v. Berger,
224 F.3d 107 (2d Cir. 2000) ("[A] charge should not instruct that a jury must
acquit whenever it finds multiple conspiracies; acquittal is required
only if the jury finds that the charged conspiracy is not one of the
conspiracies that has been proved. . . . What the charge should stress is
`that there must be [a] finding of the single conspiracy charged and
individual knowing participation by each individual in it.'") (quoting
United States v. Aracris, 968 F.2d 1512, 1520 (2d Cir. 1992)).
Accordingly, as Gonzalez has not shown "that the instruction misstated
state law," or that it "violated a right guaranteed to him by federal
law," Gonzalez's claim with respect to the conspiracy charge is rejected.
Estelle v. McGuire, 502 U.S. at 67-68.
ii. Llaca, Gonzalez. and Collins; Charge on the
Nature of Deliberations
Llaca, Gonzalez, and Collins assert that the trial court's instruction
to the jury concerning deliberation was an unconstitutionally coercive
Alien charge. (Llaca Pet., Ground One; Gonzalez Pet., Ground
Two; Collins Am. Pet., Ground Three). Specifically, they contend that the trial court erred by not
instructing the jury that it should reach a verdict without forcing any
juror to yield a conscientious belief. (Id.). Petitioners'
contentions are without merit.
(1) Procedural Default
Llaca and Gonzalez submitted this claim on direct appeal to the
Appellate Division and subsequently raised the issue in their
applications for leave to appeal to the Court of Appeals. (Resp't Opp. to
Llaca and Gonzalez Pets., App. Vol. III, Exs. G, I). Accordingly, I
address the merits of the claim below.
Collins, however, did not raise any claim relating to the trial court's
charge regarding the nature of deliberations on appeal to the Appellate
Division. (See Resp't Opp. to Collins Pet., App. Vol I, Ex. A).
Consequently, he has procedurally defaulted this claim. Thus, as Collins
has not attempted to show cause and resulting prejudice for the default,
nor would the Court's failure to consider the claim result in a
"fundamental miscarriage of justice," he is not entitled to federal
habeas review. See Coleman, 501 U.S. at 750. In any event, as
discussed below, the claim is without merit.
(2) The Merits
The trial court's jury instruction was proper and did not deprive
petitioners of a fair trial. First, the challenged jury instruction was
not an Alien charge, and therefore the trial court was under no
obligation to caution the jurors not to surrender their own conscientiously held beliefs. See Alien v.
United States. 164 U.S. 492 (1896) (an Alien charge is
used when the court is given notice that there is a deadlock);
Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999) (a
necessary component of such a charge to a jury requires the trial judge
to "admonish the jurors not to surrender their own conscientiously held
beliefs"). Here, the trial court responded to a jury request for the
meaning of deliberation. The trial court was not, as petitioners allege,
instructing the jury to encourage a verdict in the face of deadlock.
"Second, the jury instruction was responsive to the jury's question. It
was non-coercive, as shown by the fact that the jury continued to
deliberate for an additional five days. The trial court's instructions
cautioning the jurors not to arbitrarily reject testimony and to
deliberate based on reason were proper. Consequently, I find there to be
no error with respect the jury instruction in question, much less one
of constitutional magnitude. Accordingly, petitioners' claim for habeas
relief as to this issue is denied.
Petitioners have demonstrated no basis for relief under
28 U.S.C. § 2254. Accordingly, the instant habeas
petitions are dismissed. Because petitioners have not made a substantial
showing of the denial of a constitutional right, I decline to issue
certificates of appealability. See 28 U.S.C. § 2253
(1996) (as amended by the AEDPA). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeals taken from this decision and order would not be taken
in good faith.
The Clerk of the Court shall enter judgment accordingly and close these