United States District Court, E.D. New York
DAVID POLICANO, Petitioner,
VICTOR HERBERT, Superintendent, Attica Correctional Facility, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner David Policano (also known as "Tippy," and who will
be referred to here as "Policano"), an inmate at the Shawangunk
Correctional Facility,*fn1 seeks habeas relief from a
judgment of conviction entered after a jury trial in state court.
I held oral argument on March 26, 2004 and again on July 2, 2004. The petition places in clear relief the need for extreme care
on the part of the prosecutor when a murder case goes to the jury
in a New York courtroom. It is typical in such cases for the
defendant to be charged with both intentional murder and
"depraved indifference" murder, i.e., reckless conduct creating a
grave risk of death, engaged in under circumstances evincing a
depraved indifference to human life, which results in death. The
New York Court of Appeals has made it clear that depraved
indifference murder is not a lesser offense included within the
offense of intentional murder. They are different, mutually
exclusive crimes. When both offenses are submitted to a jury,
they must be submitted in the alternative. A defendant may not be
found guilty of both based on the same murder.
Frequently, the facts of a case permit a rational jury to
convict a defendant of either crime. For example, if a defendant
fires a shot from his apartment window, killing a person in the
street, the evidence may well support both an inference that he
intended to kill the victim by shooting him and an inference that
he intended only to shoot in his direction, consciously
disregarding the known risk that the bullet would kill him, and
thus evincing a depraved indifference to human life. In such a
case, both offenses may properly be submitted to the jury, which
then has three choices: guilty of intentional murder, guilty of
depraved indifference murder, or not guilty.
However, the facts of some cases leave only two rational
choices for a jury: the defendant either intentionally killed the
victim or the defendant has not been proved guilty. Such cases do
not include evidence from which a jury can infer that the murder
was the result of reckless conduct. Accordingly, prosecutors must
be very careful not to allow both charges to be submitted to the
jury. If they are, a conviction for depraved indifference murder
must be set aside on insufficiency grounds. Since double jeopardy principles
preclude a retrial on the intentional murder charge, the killer
Unfortunately, that must be the outcome here. At Policano's
trial, the trial judge inquired of the prosecutor as to whether
the depraved indifference charge should be submitted to the jury.
The prosecutor should have agreed to dismiss it. Instead, she
argued, apparently off-the-cuff, that the evidence of intentional
murder numerous shots fired at point-blank range could be
construed as evidencing recklessness as well. That is not
indefensible logic, but the New York Court of Appeals has
explicitly rejected it in multiple cases. The disregard for human
life inherent in every intentional murder does not establish the
recklessness necessary for a depraved indifference conviction.
The trial court, persuaded by the prosecutor's incorrect
argument, submitted both charges to the jury, which convicted
Policano of depraved indifference murder. As a result, and as
explained more fully below, I am constrained to order the release
of Policano because he was convicted of recklessly causing a
murder that, according to the evidence, he intentionally
committed if he committed it at all.
At approximately 8:50 p.m. on January 27, 1997, at the corner
of Carlton and Myrtle Avenues in Brooklyn, New York, Policano
shot Terry Phillips three times in the back of the head from
three to five feet away. When Phillips fell, Policano shot him
again in the leg. Policano was charged with two counts of murder
in the second degree, and one count each of criminal possession
of a weapon in the second and third degrees. One of the murder
counts alleged intentional murder, in violation of New York Penal
Law § 125.25(1); the other alleged depraved indifference murder, in violation of New York Penal Law
§ 125.25(2). On March 16, 1998, after a jury trial, Policano was
acquitted of intentional murder but convicted of depraved
indifference murder, and was sentenced as a second felony
offender to a term of imprisonment of twenty-five years to life.
In his appeal to the Appellate Division, Second Department,
Policano claimed that (1) there was insufficient evidence to
prove his guilt of depraved indifference murder; (2) the verdict
was against the weight of the evidence; (3) the prosecutor
improperly impeached the credibility of a defense witness based
on that witness's failure to come forward with exculpatory
testimony; (4) the prosecutor's summation denied Policano a fair
trial; and (5) the trial court improperly allowed the prosecutor
to introduce a statement attributed to Policano without providing
notice of intent to offer the statement into evidence.
The Appellate Division unanimously affirmed Policano's judgment
of conviction on November 13, 2000, stating:
Viewing the evidence in the light most favorable to
the prosecution, we find that it was legally
sufficient to establish the defendant's guilt beyond
a reasonable doubt. Moreover, upon the exercise of
our factual review power, we are satisfied that the
verdict of guilt was not against the weight of the
The defendant's remaining contentions are without
People v. Policano, 715 N.Y.S.2d 880, 881 (2d Dep't 2000)
(citations omitted). Policano was denied leave to appeal on March
30, 2001. People v. Policano, 96 N.Y.2d 786 (2001) (Smith, J.).
In his instant petition for a writ of habeas corpus, filed
March 5, 2002, Policano claims that (1) there was insufficient
evidence to prove his guilt of depraved indifference murder; (2) the verdict was against the weight of the evidence; (3) the
prosecutor improperly impeached the credibility of a defense
witness based on that witness's failure to come forward with
exculpatory testimony; and (4) the prosecutor's summation denied
Policano a fair trial. By order dated February 7, 2003, the
Honorable Lois Bloom, United States Magistrate Judge, stayed the
petition to allow Policano to exhaust an ineffective assistance
of appellate counsel claim through an application in state court
for a writ of error coram nobis. Judge Bloom's order deemed the
instant habeas petition to include this additional claim.
On September 10, 2003, Policano filed a pro se application in
the Appellate Division seeking a writ of error coram nobis on
that ground. On December 2, 2002, the Appellate Division denied
Policano's application, holding, "The appellant has failed to
establish that he was denied the effective assistance of
appellate counsel." People v. Policano, 751 N.Y.S.2d 744 (2d
Dep't 2002). Leave to appeal to the Court of Appeals was denied.
People v. Policano, 99 N.Y.2d 618 (2003) (Smith, J.). Policano
subsequently submitted this claim in his amended petition.
After hearing argument on March 26, 2004, I appointed counsel
and asked the parties to brief a series of questions regarding
Policano's insufficiency claim and the recent New York Court of
Appeals decision, People v. Gonzalez, 1 N.Y.3d 464 (2004).
After receiving supplemental briefing, I heard further argument
on July 2, 2004.
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") has narrowed the scope of federal habeas review of
state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See
28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to
habeas petitions filed after AEDPA's enactment in 1996, the
reviewing court may grant habeas relief only if the state court's
decision "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States."*fn2
28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly
established Federal law" to mean "the holdings, as opposed to the
dicta, of [the Supreme Court's] decisions as of the time of the
relevant state-court decision." Williams v. Taylor,
529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87,
93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, if "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 413. A decision
is an "unreasonable application" of clearly established Supreme
Court law if a state court "identifies the correct governing
legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of [a]
prisoner's case." Id. "In other words, a federal court may
grant relief when a state court has misapplied a `governing legal
principle' to `a set of facts different from those of the case in
which the principle was announced.'" Wiggins v. Smith,
539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63,
123 S. Ct. 1166, 1175 (2003)). However, there is "force" to the argument "that if a habeas
court must extend a rationale before it can apply to the facts at
hand then the rationale cannot be clearly established at the time
of the state-court decision"; "[§] 2254(d)(1) would be undermined
if habeas courts introduced rules not clearly established under
the guise of extensions to existing law." Yarborough v.
Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has
concluded, however, that while "the difference between applying a
rule and extending it is not always clear," "[c]ertain principles
are fundamental enough that when new factual permutations arise,
the necessity to apply the earlier rule will be beyond doubt."
Id. at 2151.
Under the "unreasonable application" standard set forth in
Williams, "a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must
also be unreasonable." Gilchrist, 260 F.3d at 93 (citing
Williams, 529 U.S. at 411); see also Yarborough v. Gentry,
124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state
court's application of governing federal law is challenged, it
must be shown to be not only erroneous, but objectively
unreasonable."); Wiggins, 539 U.S. at 520-21 (same).
Interpreting Williams, the Second Circuit has added that
although "[s]ome increment of incorrectness beyond error is
required . . . the increment need not be great; otherwise, habeas
relief would be limited to state court decisions so far off the
mark as to suggest judicial incompetence." Gilchrist,
260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
The Supreme Court recently explained that the specificity with
which the rule of law at issue is defined may affect whether the
state court's determination was "unreasonable": [T]he range of reasonable judgment can depend in part
on the nature of the relevant rule. If a legal rule
is specific, the range may be narrow. Applications of
the rule may be plainly correct or incorrect. Other
rules are more general, and their meaning must emerge
in application over the course of time. Applying a
general standard to a specific case can demand a
substantial element of judgment. As a result,
evaluating whether a rule application was
unreasonable requires considering the rule's
specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case by
Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of
whether it has alluded to federal law in its decision. As the
Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
261 F.3d 303
, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue
is presumed to be correct, and is unreasonable only where the
petitioner meets the burden of "rebutting the presumption of
correctness by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas,
deference does not imply abandonment or abdication of
judicial review. . . . A federal court can disagree
with a state court's credibility determination and,
when guided by AEDPA, conclude the decision was
unreasonable or that the factual premise was
incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154
, 161 (2d Cir. 2003) (ellipsis in
original) (quoting Miller-El v. Cockrell, 537 U.S. 322
(2003)). B. Sufficiency of the Evidence: Depraved Indifference
Policano claims that the evidence adduced at trial could only
support a conviction for intentional murder, as the government's
sole contention at trial was that Policano intentionally shot
Phillips in the head three times at close range, and then once
more in the leg as Phillips lay on the ground. Policano argues
that the government introduced no evidence of recklessness, the
mens rea necessary to a finding of depraved indifference murder.
A petitioner "challenging the sufficiency of the evidence bears
a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836,
840 (2d Cir. 1997) (quotation marks omitted). A state criminal
conviction will be upheld if, "after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979). In making this assessment, a court may neither "disturb
the jury's findings with respect to the witnesses' credibility,"
United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor
"make credibility judgments about the testimony presented at
petitioner's trial or . . . weigh conflicting testimony." Fagon
v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United
States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under
this "rigorous standard," a "federal habeas court faced with a
record of historical facts that supports conflicting inferences
must presume even if it does not affirmatively appear in the
record that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to
that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.
1994) (quoting Jackson, 443 U.S. at 326).
In considering the sufficiency of the evidence of a state
conviction, I must "`look to state law to determine the elements
of the crime.'" Fama v. Comm'r of Corr. Servs., 235 F.3d 804,
811 (2d Cir. 2000) (quoting Quartararo v. Hanslmaier,
186 F.3d 91, 97 (2d Cir. 1999)). As in Fama, Policano's jury was
instructed on both intentional murder and depraved indifference
murder. Under § 125.25(2) of the New York Penal Law, "[a] person
is guilty of murder in the second degree when: . . . Under
circumstances evincing a depraved indifference to human life, he
recklessly engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of another
person." "Recklessly" is defined as follows:
A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an
offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that
such result will occur or that such circumstance
exists. The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation
from the standard of conduct that a reasonable person
would observe in the situation.
N.Y. Penal Law § 15.05(3).
"[U]nder New York law, intentional murder and depraved
indifference murder are mutually exclusive." Fama,
235 F.3d at 812. To be convicted of intentional murder under New York Penal
Law § 125.25(1), the government must prove beyond a reasonable
doubt that the defendant acted with the intent to murder. See
also Fama, 235 F.3d at 812. Depraved indifference murder under
§ 125.25(2), by contrast, requires a different mens rea:
recklessness. Id. The New York Court of Appeals has cast this
distinction in sharp relief: "One who acts intentionally in shooting a person to
death that is, with the conscious objective of
bringing about that result cannot at the same time
act recklessly that is, with conscious disregard of
a substantial and unjustifiable risk that such a
result will occur. The act is either intended or not
intended; it cannot simultaneously be both."
Id. (citations omitted) (quoting People v. Gallagher,
69 N.Y.2d 525, 529 (1987)). The New York Court of Appeals recently
reaffirmed this holding in People v. Gonzalez: "Depraved
indifference murder differs from intentional murder in that it
results not from a specific, conscious intent to cause death, but
from an indifference to or disregard of the risks attending
defendant's conduct." 1 N.Y.3d 464, 467 (2004); see also id.
at 468 ("`The act is either intended or not intended; it cannot
simultaneously be both.'" (quoting Gallagher,
69 N.Y.2d at 529)).
Depraved indifference may exist where "a defendant is
indifferent to whether death will likely result from his or her
conduct including with respect to a single victim." Id. at
476. However, "where . . . a defendant's conduct is specifically
designed to cause the death of the victim, it simply cannot be
said that the defendant is indifferent to the consequences of his
or her conduct." Id.
Depraved indifference murder is exemplified by a
defendant unconcerned with the consequences who
fires into a crowd; drives an automobile down a
crowded sidewalk at high speed; shoots a partially
loaded gun at a person's chest during a game of
Russian roulette; abandons a helplessly intoxicated
person on a snowy highway at night; or repeatedly
beats a young child over a period of several days.
Id. (citations omitted).
The Gonzalez court made clear that "[d]epraved indifference
murder does not mean an extremely, even heinously, intentional
killing. Rather, it involves a killing in which the defendant
does not have a conscious objective to cause death but instead is
recklessly indifferent, depravedly so, to whether death occurs." Id. at 468. "[T]he
wanton disregard for human life inherent in every intentional
homicide" cannot "convert such a killing into a reckless one."
Id. at 469.
The facts of Gonzalez were as follows: The defendant entered
a barber shop, pulled a gun from his belt, and shot the victim in
the chest from a distance of six to seven feet. Id. at 465. As
the victim fell to the floor, Gonzalez shot him again in the
head. Id. Finally, Gonzalez leaned over the victim's body and
fired eight more shots into the victim's back and head. Id.
Gonzalez made a statement to police officers that he had "blanked
out" as a result of fear and could not recall the shooting. Id.
at 466 (quotation marks omitted). Later, when asked by an officer
if he was having nightmares because he had shot the victim,
Gonzalez responded, "Of course I shot him." Id. (quotation
marks omitted). At trial, the jury acquitted Gonzalez of
intentional murder, but convicted him of, inter alia, depraved
In overturning the conviction, the Court of Appeals held that
"[f]rom this record there exists no valid line of reasoning that
could support a jury's conclusion that defendant possessed the
mental culpability required for depraved indifference murder."
Id. at 467-68 (quotation marks omitted). Gonzalez, the court
held, "was not recklessly creating a grave risk of death, but was
creating a virtual certainty of death born of an intent to kill."
Id. at 468. "[F]iring 10 times did not establish extremely
reckless homicide under Penal Law § 125.25(2). Rather, it
confirmed the intent to kill." Id. The court concluded that
Gonzalez's "was a quintessentially intentional attack directed
solely at the victim." Id. at 469.
People v. Sanchez, 98 N.Y.2d 373 (2002), upon which the
government relies, is not to the contrary. There, the defendant
reached "around [a] door, . . . pointed the gun in the direction of the victim who was standing behind the door," and
pulled the trigger. Id. at 386; see also Gonzalez,
1 N.Y.3d at 468 ("In Sanchez, depraved indifference murder was
established by `the sudden shooting of a victim by a defendant
who reached around from behind a door and fired into an area
where children were playing, presenting a heightened risk of
unintended injury.'" (quoting People v. Hafeez, 100 N.Y.2d 253,
259 (2003))). In distinguishing Sanchez on that basis, the
Gonzalez court wrote that Sanchez's "conduct in firing from
behind a partly closed door established his indifference to the
grave risk of death posed by his actions." Id. In contrast, the
only reasonable conclusion in Gonzalez "was that the defendant
shot to kill his intended victim." Id.
The government also relies on Fama. In that case, the
evidence at trial showed that the victim and his three friends,
all black and not from the neighborhood, were accosted by a mob
of white men in the Bensonhurst section of Brooklyn.
235 F.3d 804, 806 (2d Cir. 2000). As the mob was threatening the four
friends, Fama "begg[ed] another member of the crowd to give him a
gun so that he could `just . . . shoot one of them.'" Id. at
807 (ellipsis in original). In holding that the evidence was
sufficient to support a theory of depraved indifference murder,
the court emphasized the following facts:
The prosecution's evidence showed that Fama was part
of a mob intent on intimidating and harming the black
youths who had inadvertently entered their
predominantly white neighborhood. It showed also that
Fama requested a gun from a friend, stating, "Babe,
please, I just want to shoot one of them." Other
members of the mob discussed wanting to "club" and
"shoot" Hawkins [i.e., the victim] and his friends.
Witnesses described seeing Fama shoot Hawkins and
seeing Hawkins fall to the ground wounded.
Id. at 812 (quotation marks omitted). Based on this evidence,
the court concluded: This evidence demonstrates that Fama intended to
shoot Hawkins, but it does not necessarily show
that he intended to kill him. Unless it was
persuaded that Fama's intention was to take Hawkins'
life, a jury could have concluded that Fama intended
to cause bodily harm to Hawkins with a reckless
disregard of the ultimate result of the harm.
The evidence at Policano's trial established the following
facts. On January 21, 1997, six days prior to the shooting,
Policano and his victim, Phillips, had an argument that resulted
in Phillips striking Policano on the head with a pipe. (Tr. at
121, 127, 248.) While being treated at the hospital for this
injury which required fifteen stitches Policano told an
investigating detective that he would "take care of this" matter
himself. (Id. at 240, 248, 251.) On January 27, 1997, Phillips
and Lonny Stagg, who testified for the prosecution at trial,
arrived at a bus stop together around 8:45 p.m. (Id. at 71-73.)
Phillips stood on the street corner and Stagg stood underneath
the bus shelter, reading the schedule, about five to seven feet
away from Phillips. (Id. at 74, 87.) The street was "pretty
well lit," and there was neither automobile nor pedestrian
traffic.*fn4 (Id. at 73; see also id. at 80 (Stagg
testifying again that there were no pedestrians on the street).)
Shortly after arriving at the bus stop, Stagg saw Policano
approaching Phillips from about twenty feet away, coming up from
behind Phillips. (Id. at 75, 77, 88.) Stagg turned away to
continue reading the bus schedule and seconds later heard a
gunshot. (Id. at 77.) Stagg immediately ran about fifty feet,
turned, and saw Phillips trying to protect himself by holding his
arm in front of his face. (Id. at 77-78, 90.) After running a
few more feet, Stagg turned again and heard a second shot. (Id. at 78.) At that point, Phillips
was still on his feet "he looked like . . . he didn't know where
he was turning." (Id.; see also id. at 79 ("That was the
second shot, when I seen [Phillips] turning.").) Stagg ran
further, turned, heard a third shot, and at that point saw
Phillips on the ground. (Id.) Stagg testified that Policano was
three to five feet away from Phillips during the shooting. (Id.
The medical examiner testified that the autopsy revealed "one
gunshot wound near the top of the head in the back," a second "in
the left rear of the head," a third "on the right rear of the
neck," and finally, an "in and out" gunshot wound on the "back of
the right thigh." (Id. at 210.) The bullet shot into the back
of Phillips's neck "ended up in the face near . . . the right
eye." (Id. at 213.) As for the gunshot to the leg, the medical
examiner opined that Phillips had already fallen when the shot
was fired, and that Policano would have been standing near his
head, aiming towards his feet. (Id. at 215.)
This case is largely indistinguishable from Gonzalez. There,
as described in more detail above, the defendant initially shot
the victim in the chest from a distance of six to seven feet.
1 N.Y.3d 464, 465 (2004). As the victim fell to the floor, Gonzalez
shot him again in the head. Id. Finally, Gonzalez leaned over
the victim's body and fired eight more shots into the victim's
back and head. Id. Here, Policano's first three shots were to
the back of Phillips's head from a distance of only three to five
feet. Policano shot Phillips again in the leg after Phillips had
fallen to the ground. See also People v. Ochoa,
531 N.Y.S.2d 124, 125 (2d Dep't 1988) ("At bar, the defendant deliberately and
repeatedly fired a gun into the victim's upper body from close
range. Such conduct precluded a reasonable jury from finding that
the defendant had acted recklessly."). Respondent argues that multiple gunshots into the victim's head
from three to five feet away could cause "a rational trier of
fact to conclude [Policano] went to scare him as opposed to kill
him." (July 2, 2004 Oral Argument Tr. at 6.) That would not have
been a rational inference. Rather, "[w]hen defendant shot his
victim at close range, he was not recklessly creating a grave
risk of death, but was creating a virtual certainty of death born
of an intent to kill." Gonzalez, 1 N.Y.3d at 468.
This is not a case like Sanchez, in which the defendant
reached around a partly closed door and fired his gun at the
victim and towards a room where children were playing.
98 N.Y.2d 373, 386 (2002); see also Gonzalez, 1 N.Y.3d at 468. Nor is
it like Fama, where the facts permitted the jury to infer an
intent to shoot, but not kill, the victim, and a reckless
disregard of the consequences. 235 F.3d 804, 807, 812 (2d Cir.
2000). Rather, the only reasonable inference from the evidence at
Policano's trial i.e., his firing three shots at close range to
the back of Phillip's head (and a fourth into his prone body) one
week after telling a detective he would retaliate against
Phillips is that Policano intended to kill. For these reasons,
the Appellate Division's holding that the evidence at trial was
sufficient to establish Policano's guilt beyond a reasonable
doubt was an unreasonable application of the principle clearly
established by such Supreme Court caselaw as In re Winship,
397 U.S. 358 (1970), which holds that the government must prove all
elements of a crime beyond a reasonable doubt. Therefore, I must
grant Policano's petition for a writ of habeas corpus. See
28 U.S.C. § 2254(d)(1).
C. Policano's Other Claims
I briefly address Policano's other claims, all of which are
without merit. 1. Sufficiency of the Evidence: Identity
Policano makes much of the fact that various witnesses at the
scene described the perpetrator as a black, not white,
male.*fn5 At trial, Stagg testified that just before the
murder, he noticed Policano who was wearing a blue or navy
jacket with two white diagonal stripes on the sleeve extending
from shoulder to wrist about twenty feet away, walking across
Carlton Avenue. (Id. at 75, 77, 78-79, 103-04.) Stagg had known
Policano for five years and saw him often. (Id. at 76.) Without
acknowledging Policano, Stagg went back to reading the bus
schedule, facing away from Phillips. (Id. at 77.) A few seconds
later, Stagg heard a gunshot and ran about fifty feet away.
(Id. at 77, 79.) Stagg then turned around and saw Phillips
holding his arm in front of his face. (Id. at 78.) Stagg saw a
nine-millimeter gun in the hand of someone wearing a jacket with
white stripes on the sleeve,*fn6 and testified that "[i]t
had to be [Policano]." (Id. at 79.)
When Stagg spoke to a police officer after the shooting, he
said that Policano was white, but that Policano considered
himself to be black and was known in the neighborhood as being
black. (Id. at 106, 115.) Detective Gershwin Samuel testified
that "from the moment we got on the scene, we had people telling
us that `he's a black guy. But don't look for a black guy, look
for a white guy.'" (Id. at 165.) Samuel testified that others
told him that the perpetrator was white, but looked black. (Id.
at 166.) Sawn Harden, a defense witness and good friend of Policano
(id. at 330), testified that he witnessed the shooting. Harden
testified to seeing a black man shoot another black man at the
bus stop. (Id. at 293.) He further described the shooter as
being about six feet tall and 190 pounds, and twenty-one or
twenty-two years old.*fn7 (Id. at 295, 297.) John Nelson,
who lived across the street from the bus stop where the shooting
occurred, and did not know Policano, testified to seeing a tall,
thin, black man about twenty years old, wearing a black coat
extending halfway down his legs, running away from the bus stop
into the projects. (Id. at 589, 591, 596, 607, 609.)
All of this evidence was presented to the jury, which clearly
resolved the various discrepancies against Policano and credited
Stagg's testimony, as it was permitted to do. The state court's
implicit deference to the jury's findings was not an unreasonable
application of federal law. See, e.g., Maldonado v. Scully,
86 F.3d 32, 35 (2d Cir. 1996) ("[A]ssessments of the weight of
the evidence or the credibility of witnesses are for the jury and
not grounds for reversal on appeal; we defer to the jury's
assessments of both of these issues.") Accordingly, this claim
does not justify issuance of the writ.
2. Improper Impeachment of a Defense Witness
Policano claims that he was denied a fair trial because the
prosecutor improperly impeached Harden's exculpatory testimony.
Specifically, Policano complains that the prosecutor impeached
Harden based on Harden's failure to come forward sooner with his
version of the shooting. Harden testified at trial that he had witnessed the shooting
and that the shooter was a black man. (Tr. at 293-95.) After
Harden's direct testimony, the court held a hearing, outside the
presence of the jury, during which the prosecutor inquired into
when Harden became aware that Policano had been charged for the
crime and when Harden had come forward with the exculpatory
Q Mr. Harden, when did you become aware that Mr.
P[o]licano was the subject of this particular case?
. . . .
A When I got arrested and I seen him inside the jail
I was in.
Q And when was that?
A Around November.
Q Of what year?
Q Was that the first time you had spoken to Mr.
. . . .
Q Is that when you became aware that Mr. P[o]licano
faced murder charges with respect to the incident
that occurred on Carlton and Myrtle Avenue, on
January 27th, 1997?
Q Did you have a conversation with him with respect
to that incident?
Q Did you speak to him about the case?
A He told me what he was in for, and I, I told him
that I know he ain't do it because I seen it.
Q So, in November of 1997, you realized or you had
information that based on your own observations that
it was a tall thin black man who actually committed
the shooting, is that correct?
Q And you had a case pending during that time, is
Q And you had a defense attorney, is that right?
Q And, in fact, you made numerous appearances before
Judge Silverman [note: this is not the same judge who
presided over Policano's trial], is that correct?
A Yes. . . . .
Q And at no time during those repeated occasions
before the Court did you tell anyone with respect to
the information you had about the thin male black
shooter on January 27th, 1997, is that correct?
A No. It's correct, but I didn't tell no one.
Q You didn't tell anyone?
. . . .
Q [Y]ou realized that you could have conveyed that
information to the prosecutor in court, is that
. . . .
. . . .
Q You never contacted the police with respect from
January 27th, 1997, until . . . November when you
wrote those letters to [defense counsel] with respect
to what you observed, is that right?
A Yes, because I didn't want to get involved, but I
know what happened, and I seen my friend in jail for
something I seen and know he didn't done, so I told
him I would be a witness on his case.
Q But, you never came forward to either the
detectives in the 88 Precinct, or to the District
Attorney's office on those occasions when you
appeared in court, is that correct?
A No [sic: no, he did not come forward].
(Id. at 298-304.)
Based on this testimony, the court allowed the prosecutor to
cross-examine Harden, before the jury, on his failure to come
forward. (Id. at 306.) On cross-examination, Harden testified
as follows, in pertinent part:
Q Mr. Harden, on January 27th, 1997, when you made
those observations [i.e., witnessed the shooting],
you did not call the police that day, is that right?
Q You saw the police arrive at the scene, right after
the shooting, is that right?
. . . .
Q You didn't approach the police officers, did you?
A No. Q You didn't tell them what you observed, did you?
Q You didn't tell them that it was a thin six-foot
black male who you observed do the shooting, did you?
Q When did you become aware that Mr. P[o]licano was
the individual facing charges in this particular
A When I seen him.
Q When was that?
A In around November.
Q So, November of what year?
Q So, from January 27th until November of 1997, you
did not call the police with respect to this
information that you had, is that correct?
. . . .
Q But you realized that you had information that
could have possibly led to the capture of the
individual who did the shooting, is that right?
A A little.
Q That's not right?
(Id. at 307-10.) Policano claims that it was error to admit
this testimony because Harden was not aware that his friend
(Policano) had been charged with the murder until November 1997.
Erroneous evidentiary rulings by a state trial court generally
do not rise to the level of constitutional violations upon which
a federal court may issue a writ of habeas corpus. See Jenkins
v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski
v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously
admitted evidence must be "crucial, critical, [and] highly
significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir.
1985). In this regard, Policano bears a "heavy burden." Roberts
v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd,
71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However,
the Due Process Clause of the Fourteenth Amendment is violated
where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt
that would have existed on the record without it.'" Johnson v.
Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins,
755 F.2d at 19). This test applies post-AEDPA. See Wade v.
Mantello, 333 F.3d 51 (2d Cir. 2003).
Here, the fact that Harden waited approximately ten months
before coming forward with the exculpatory information was fair
ground for cross-examination even if Harden did not know Policano
had been charged. To be sure, the impeachment value of Harden's
silence would have been stronger if he had known Policano had
been charged, but whether Harden had information that would help
the police solve a murder and withheld it was still relevant to
his credibility and appropriately inquired into. See United
States v. Carr, 584 F.2d 612, 617-18 (2d Cir. 1978).
Furthermore, in its final jury charge, the court instructed the
jurors: "[Y]ou heard testimony that the witness . . . Sawn
Harden did not speak with law enforcement officials at any time
before testifying at trial. I charge you that no person has a
civic or moral obligation to voluntarily exculpate [sic]
information to law enforcement authorities." (Tr. at 556.) If
there was any unfairly prejudicial effect of the challenged
aspect of Harden's cross-examination and I perceive none this
instruction no doubt cured it. Therefore, this claim does not
justify issuance of the writ.*fn8 3. Prosecutorial Misconduct
Policano claims that the prosecutor's summation denied him a
fair trial in that it (1) "denigrated the defense" by arguing
that Policano lied on the stand and otherwise tailored his
testimony after hearing the government's case; and (2)
misrepresented the law by arguing that reasonable doubt does not
arise from a lack of evidence.
Habeas relief based on a claim of prosecutorial misconduct
during summation is unavailable unless the misconduct "so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974); see also Pimentel v. Walsh, No.
02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-20 (S.D.N.Y.
Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct
claim, a habeas petitioner must show that `the prosecutor engaged
in egregious misconduct . . . amounting to a denial of
constitutional due process.'" (ellipsis in original) (quoting
Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). Policano
"must demonstrate that he suffered actual prejudice because the
prosecutor's comments during summation had a substantial and
injurious effect or influence in determining the jury's verdict."
Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). In making
this determination, the habeas court should consider the severity
of the prosecutor's conduct, the measures, if any, that the trial
court took to remedy any prejudice, and the certainty of
conviction absent the prosecutor's remarks. See id.
a. The Prosecutor's Argument That Policano Had an Opportunity
to Hear the Witnesses and Tailor His Testimony
In her summation, the prosecutor argued, in pertinent part:
The defendant's testimony is not only riddled with
inconsistencies, but half truths and outright lies.
The recent fabrication has been tailored to the evidence he has heard throughout the course of
this trial, and he is the only witness who has had
the opportunity to hear all of the testimony before
The defendant is an interested witness. He has the
most to lose and the most to gain in the outcome of
this trial. The Judge will instruct you that as a
matter of law this defendant is an interested
(Tr. at 534-35.)
The Appellate Division's decision denying this claim was not
unreasonable in light of Portuondo v. Agard, 529 U.S. 61
(2000), where the Supreme Court held that a prosecutor's comments
that the defendant had had an opportunity to hear other witnesses
before testifying and to tailor his testimony accordingly did not
violate the defendant's constitutional rights. Therefore, this
claim does not justify issuance of the writ.
b. The Prosecutor's Argument That Reasonable Doubt Does Not
Arise from a Lack of Evidence
The prosecutor also stated in summation:
Let's consider the lack of scientific evidence.
[Defense counsel] says there aren't any fingerprints
on the bullet case or any powder test conducted on
the defendant's face or hands. But Detective Gannallo
told you that when he up to a thousand degrees when
that trigger is pulled, and that gun is fired through
the barrel obliterates any evidence of fingerprints
and that the reliability of the soot or powder test
. . . .
Reasonable doubt does not come from a lack of
fingerprints or soot residue or testimony from real
Ladies and gentlemen, this is real life with real
people. And when the judge reads to you the elements
of the crime, you will never hear that this must be
proven through fingerprints.
. . . .
Reasonable doubt does not come from human witnesses,
a missing gun, a lack of fingerprints or gun powder
or photographs of the defendant actually showing him
shooting the gun into Terry Phil[l]ips. It's real
life. And you've had the opportunity to see the
spectrum of real people. Proof beyond all doubt
happens when only all 12 of you are standing on the corner of Carlton and Myrtle avenues with Lonnie
Stagg on January 27, 2997, witness it for yourself
with horror as the bullets seared through Terry
Phil[l]ips' brain causing a puddle of blood.
(Tr. at 525-26, 543-44.)
In determining whether the government has proved a defendant's
guilt beyond a reasonable doubt, a jury may properly consider
both the evidence and the lack of evidence. However, it is clear
from the context of the challenged comments that the prosecutor
was responding to the defense summation by trying, however
inarticulately, to disabuse the jury of the notion that the
absence of such physical evidence as fingerprints or gun-powder
residue necessitated an acquittal. However, even if I were to
adopt Policano's interpretation of these remarks, the trial
court's instructions properly informed the jury of the definition
of reasonable doubt, guided the jury in its application, and
emphasized that the jury was to take the law as stated only by
the judge instructions I presume the jury followed, see,
e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987). The
court's definition of "reasonable doubt" emphasized that the jury
was to consider "all the evidence," including "lack or
insufficiency of the evidence," in determining whether the
government had carried its burden. (Tr. at 564-65.)
Thus, even assuming the challenged comments were addressed to
the absence of evidence generally as opposed to the lack of
specified forensic evidence in this case any harm caused by the
summation was remedied by the trial court's direction that the
jury could indeed reach a reasonable doubt based on a lack of
evidence. Accordingly, this claim does not justify issuance of
the writ. 4. Ineffective Assistance of Appellate Counsel
Policano, who claims to have been absent during a pretrial
hearing, argues that his appellate counsel provided ineffective
assistance in failing to raise the claim that Policano was denied
his right to be present at a material stage of his trial.
The Supreme Court has established the following standard for
ineffective assistance claims:
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668
, 687 (1984). Thus, to
make out this type of claim, Policano must demonstrate both (1)
that his attorney's performance "fell below an objective standard
of reasonableness," id. at 688, and (2) that "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different,"
id. at 694. In assessing the reasonableness of counsel's
performance, "judicial scrutiny of counsel's performance must be
highly deferential," and the court must "indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson
v. Leonardo, 162 F.3d 81
, 85 (2d Cir. 1998); see also
Yarborough v. Gentry, 124 S. Ct. 1
, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in
deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an
objective review . . . measured for `reasonableness under
prevailing professional norms,' which includes a
context-dependent consideration of the challenged conduct as seen
`from counsel's perspective at the time.'" Wiggins v. Smith,
539 U.S. 510, 523 (2003) (citation omitted) (quoting
Strickland, 466 U.S. at 688-89)). The Supreme Court has
"declined to articulate specific guidelines for appropriate
attorney conduct" and has instead emphasized that "`the proper
measure of attorney performance remains simply reasonableness
under prevailing professional norms.'" Id. at 521 (quoting
Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on
the outcome of the proceeding, it is not sufficient if the
petitioner shows merely that counsel's errors had "some
conceivable effect" on the outcome. Strickland,
466 U.S. at 693. Rather, there must be "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. A "reasonable
probability" is "a probability sufficient to undermine confidence
in the outcome." Id. This determination, unlike the
determination whether counsel's performance fell below an
objective standard of reasonableness, may be made with the
benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364,
Although the Supreme Court formulated the Strickland test in
the context of examining a claim of ineffective assistance of
trial counsel, the same test applies to claims regarding the
performance of appellate counsel. See Mayo v. Henderson,
13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798,
803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See
Mayo, 13 F.3d at 533 (citing Jones v. Barnes, 463 U.S. 745,
754 (1983)); see also Evitts v. Lucey, 469 U.S. 387, 394
(1985) (emphasizing that appellate counsel "need not advance
every argument, regardless of merit, urged by the appellant").
Moreover, reviewing courts should not employ hindsight to
second-guess an appellate attorney's strategy choices. See
Mayo, 13 F.3d at 533 (citing Lockhart, 506 U.S. at 372); see
also Jones, 463 U.S. at 754 ("For judges to second-guess
reasonable professional judgments and impose on appointed counsel
a duty to raise every `colorable' claim suggested by a client
would disserve the very goal of vigorous and effective
advocacy. . . ."). A petitioner, however, may establish
constitutionally inadequate performance if he shows that his
appellate counsel omitted material and obvious issues while
pursuing matters that were patently and significantly weaker.
Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998)
("[R]elief may be warranted when a decision by counsel cannot be
justified as a result of some kind of plausible trial
Here, Policano contends that his appellate attorney should have
claimed that Policano's right to be present was violated.
Specifically, Policano asserts that his trial attorney improperly
waived Policano's right to be present at a pretrial hearing. In
holding that Policano had "failed to establish that he was denied
the effective assistance of appellate counsel," Policano,
751 N.Y.S.2d at 744, the Appellate Division correctly cited Jones.
A criminal defendant has the right "to be present at all stages
of the trial where his absence might frustrate the fairness of
the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 5
(1975). However, "the right to be present is not absolute: it is
triggered only when the defendant's `presence has a relation,
reasonably substantial, to the fulness of his opportunity to defend against the charge.'" Cohen v. Senkowski, 290 F.3d 485,
489 (2d Cir. 2002) (quoting Snyder v. Massachusetts,
291 U.S. 97, 105-06 (1934)).
Policano was present at the suppression hearing and at the
conclusion of the hearing where both sides rested and declined
the opportunity to make closing arguments. (Feb. 19, 1998 Hr'g
Tr. at 23.) During the hearing, defense counsel requested that
the testifying witness, a police officer, produce the original
document that he had prepared, rather than a copy. (Id.) The
court directed the officer to bring the original document (a
"DD-5") that was at issue. (Id.) The court reconvened later
that day, at which time defense counsel waived Policano's
presence. (Id. at 25.) The prosecutor, defense counsel, and
court then discussed the original DD-5 and the officer's efforts
to locate it. (Id.) This discussion segued into a discussion
regarding the admissibility of the identification procedure
(id. at 28-32), followed by a defense request for a specific
item that he considered Brady material (id. at 33-37).
Defense counsel then asked for clarification of a supplemental
report he had recently received (id. at 37-39) and requested
that an incarcerated witness be housed at Rikers Island (id. at
Under New York law, while a defendant has a right to be present
at ancillary proceedings involving factual matters about which he
or she may have useful knowledge, see, e.g., People v.
Dokes, 79 N.Y.2d 656, 659-60 (1992), a defendant's absence from
proceedings involving only questions of law or procedure does not
violate his right to be present, see, e.g., id. at 660. The
relevant question is "whether the proceeding involved factual
matters about which defendant might have peculiar knowledge that
would be useful in advancing the defendant's or countering the
People's position." Id. In light of established New York law
and the fact that purely legal matters were discussed in
Policano's absence, the Appellate Division was not unreasonable in concluding that Policano had failed to establish
that his appellate attorney provided ineffective assistance by
failing to raise this issue on direct appeal. Therefore, this
claim does not justify issuance of the writ.
For the foregoing reasons, the petition is granted based on
Policano's insufficiency of the evidence claim, and the
government is ordered either to commence further proceedings
against Policano or release him within sixty days of this order.
Though I do not stay this order pending appeal, that sixty days
will allow respondent to seek a stay in the court of appeals. As
Policano has failed to make a substantial showing of a denial of
a constitutional right with regard to his other claims, no
certificate of appealability shall issue.