United States District Court, S.D. New York
November 18, 2004.
EFRAIM SOTO, Petitioner,
GALE McGUANE, SUPERINTENDENT, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT
Efraim Soto ("Soto"), the petitioner, has made an application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Soto
contends that his confinement by the state of New York is
unlawful because his right to due process was violated when, at
his trial, the presiding state judicial officer gave a "missing
witness" instruction to the jury concerning a person whom Soto
contends was merely a casual acquaintance of his and not a person
under his control. The respondent opposes Soto's application for
a writ of habeas corpus. He contends that the claim made by Soto,
in his application for the writ, is meritless.
Soto was charged in two New York County indictments. The grand
jury alleged in each indictment that Soto had violated New York
Penal Law § 220.39, criminal sale of a controlled substance in
the third degree. Soto proceeded to trial before a petit jury on
one indictment and, after a verdict of guilty was rendered, determined to plead
guilty to the charge contained in the remaining indictment.
In the case that proceeded to trial, the jurors learned that an
undercover officer purchased two glassine envelopes containing
heroin from Soto for twenty dollars. After the purchase was
effected, the undercover officer transmitted a description of the
seller to other officers who were in the vicinity. The
description was keyed to the seller's clothing and, in
particular, the color of the jacket the seller wore. A short time
later, Soto was apprehended and two ten dollar bills, which had
previously been recorded for use by the undercover officer as buy
money, were recovered from Soto.
Soto testified in his own behalf at his trial. He informed the
jurors that shortly before his arrest he had encountered Lydia
Cruz ("Cruz"), a friend and neighbor of Soto's. Cruz was known to
Soto to be a drug user. She asked Soto whether anyone was "out"
which, Soto told the jurors, based upon his experience as an
ex-drug addict, he understood to be an inquiry concerning whether
anyone was selling drugs out on the street. As a result of Cruz's
inquiry, Soto approached another of his friends, whom he
identified as "Jose," and tendered a fifty dollar bill to Jose in
order to obtain one glassine envelope of heroin for Cruz. Jose
gave Soto two ten dollar bills and a twenty dollar bill but did
not give him a glassine envelope of heroin because police
officers arrived on the scene. Soto's trial testimony suggested
that, based upon his interaction with Jose, the undercover
officer's pre-recorded buy money came to be in Soto's possession.
On the basis of Soto's testimony concerning his encounter with
Cruz and his attempt to purchase heroin for her using his own
money, the prosecutor requested that the trial court give the
jury a "missing witness" instruction, which would permit the
jurors to draw an adverse inference against Soto for failing to present Cruz as a defense
witness at his trial. The trial court granted the prosecutor's
request and gave a "missing witness" instruction to the jury.
Soto objected to the "missing witness" jury instruction and, on
his direct appeal from his conviction to the New York State
Supreme Court, Appellate Division, First Department, he raised
the matter as an error by the trial court. The alleged error was
the principal ground upon which Soto contended that his
conviction should be upset by the Appellate Division. However, in
making the claim that the trial court erred when it gave the
"missing witness" instruction to the jury, Soto also argued to
the Appellate Division that the trial court's error provided the
prosecutor with a platform from which to argue to the jury,
improperly, that an adverse inference should be drawn by the
jurors against Soto for his failure to have Cruz testify on his
behalf at the trial.
The Appellate Division affirmed Soto's conviction. It found
that, in light of Soto's testimony that Cruz was his friend and
next door neighbor, for whom he was willing to purchase drugs
with his own money, it was reasonable to presume that Cruz would
testify favorably for Soto at his trial and, therefore, Soto had
"control" over Cruz as that term is used in connection with the
"missing witness" doctrine.*fn1 Furthermore, the Appellate
Division found, based upon its review of the trial record, that
Cruz would have provided the jury with material non-cumulative
testimony had she been called as a witness for the defense.
Therefore, the appellate court found that no error had been
committed by the trial court when it gave the jury a "missing
witness" instruction. See People v. Soto, 297 A.D.2d 567,
747 N.Y.S.2d 160 (App.Div. 1st Dep't 2002). Soto sought leave to appeal from the Appellate Division's
determination to the New York Court of Appeals. Soto's
application was denied by an associate judge of that court. See
People v. Soto, 99 N.Y.2d 564, 754 N.Y.S.2d 217 (2002).
Thereafter, Soto made the instant application for a writ of
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, 28 U.S.C. § 2254
provides that a writ of habeas corpus may issue only if the state
court's adjudication resulted in a decision that: (1) was
contrary to, or involved an unreasonable application of, federal
law, as determined by the Supreme Court of the United States; or
(2) was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
See 28 U.S.C. § 2254(d); see also Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone,
221 F.3d 100 (2d Cir. 2000). In addition, when considering an application
for a writ of habeas corpus by a state prisoner, a federal court
must be mindful that any determination of a factual issue made by
a state court is to be presumed correct and the habeas corpus
applicant has the burden of rebutting the presumption of
correctness by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
In the case at bar, the Appellate Division decided Soto's due
process claim, premised upon the trial court's determination to
give a "missing witness" jury instruction, on the merits.
Therefore, in considering whether Soto is entitled to habeas
corpus relief, the court typically would have to determine
whether the Appellate Division's adjudication resulted in a
decision that was contrary to or involved an unreasonable
application of federal law as determined by the Supreme Court or
was based upon an unreasonable determination of the facts in
light of the evidence presented at Soto's trial. However, since the ground
upon which Soto seeks the issuance of a writ of habeas corpus
involves a claim of error respecting a state trial jury
instruction, Soto is not entitled to habeas corpus relief unless
he can establish that the challenged jury instruction "by itself
so infected the entire trial that the resulting conviction
violates due process." Cupp v. Naughten, 414 U.S. 141, 146-147,
94 S. Ct. 396, 400 (1973). This is so because the adequacy of a
state court's jury instruction is a matter of state law, see
Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117
(1993), and habeas corpus relief is only available for violations
of federal law. See 28 U.S.C. § 2254(a); Rasul v. Bush,
___ U.S. ___, 124 S.Ct. 2686, 2693 (2004).
Under New York law, the party seeking a "missing witness" jury
instruction must show that the witness in question could be
expected to have relevant knowledge and to give testimony
favorable to the opposing party. The party opposing the jury
instruction can defeat the request by showing, inter alia, that
the witness is not under the opposing party's control, is not
available to that party, is not knowledgeable about a material
issue pertinent to the trial or that the witness' testimony would
be cumulative to other evidence. See People v. Macana,
84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 657-58 (1994); People v.
Gonzalez, 68 N.Y.2d 424, 427-28, 509 N.Y.S.2d 796, 799-800
(1986). The record evidence demonstrated that Cruz would have
been expected to give favorable, noncumulative testimony on
Soto's behalf. She was a friend and neighbor of Soto's. In
addition, Soto attempted to purchase drugs for her using his own
funds and, in doing so, placed himself in criminal jeopardy.
Furthermore, Cruz was knowledgeable about a material issue in the
case, to wit, whether Soto was a drug seller. Moreover, no
evidence was adduced at the trial that demonstrated that Cruz was
not available to be a witness. A state prisoner seeking habeas corpus relief based upon a
claimed improper jury instruction faces a substantial burden.
See DelValle v. Armstrong, 306 F.3d 1197, 1200-1201 (2d Cir.
2002) (citing Henderson v. Kibbe, 431 U.S. 145, 154,
97 S. Ct. 1730, 1737 ). He or she must show more than that "the
instruction is undesirable, erroneous or even universally
condemned," but rather must establish that "the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process." Cupp,
414 U.S. at 146-147, 94 S. Ct. at 400. Here, the evidence identifying Soto as
the seller of heroin to an undercover officer was strong. Soto
wore clothing that matched the clothing of the seller, he was
apprehended shortly after the sale and possessed the pre-recorded
buy money. Based upon the Court's review of the jury
instructions, as a whole, in the circumstances of this case, it
cannot be said that the trial court's exercise of its discretion
in giving a "missing witness" jury instruction so infected the
entire trial such that Soto's conviction offends due process.
See Cupp, supra.
In addition, in the instant case, Soto has not made any effort
to demonstrate how the determination reached by the Appellate
Division was contrary to or involved an unreasonable application
of federal law. Furthermore, he has not made any showing that the
action taken by the Appellate Division on his appeal was based
upon an unreasonable determination of the facts in light of the
evidence presented at his trial. Therefore, the Court finds that
Soto has not met the burdens placed upon him either by statute,
28 U.S.C. § 2254(d), or by Supreme Court decisional law such that
he would be entitled to habeas corpus relief.
Inasmuch as the Court finds that, based on the record as a
whole, it was proper for the trial court to give the jury a
"missing witness" instruction, it was equally proper for the
prosecution, knowing that such an instruction would be given by
the court, to make reference to Cruz's absence from the trial during its final argument to the
jury and to ask the jury to draw an adverse inference against
Soto based on her absence.
Based on the above, it is recommended that Soto's application
for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also, Fed.R. Civ. P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Shira A.
Scheindlin, 500 Pearl Street, Room 1620, New York, New York,
10007, and to the chambers of the undersigned, 40 Foley Square,
Room 540, New York, New York, 10007. Any requests for an
extension of time for filing objections must be directed to Judge
Scheindlin. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v.
Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).