United States District Court, S.D. New York
June 10, 2005.
RICARDO ROMAN, Petitioner,
GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
Pro se petitioner Ricardo Roman seeks a writ of habeas corpus
from his November 14, 2002 conviction in Supreme Court, Bronx
County, of two counts of first degree robbery and sentence of
eighteen years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) Roman's
habeas petition contends that: (1) Roman was deprived of due
process and an impartial jury by prosecutorial misconduct during
voir dire and summation, when the prosecutor asked the jurors to
place themselves in the victim's shoes, improperly bolstered
testimony with the prosecutor's opinions and conjecture, and
denigrated the defense (Pet. ¶ 12(a)); (2) Roman was denied a
fair trial by the improper admission of two pieces of hearsay
evidence that bolstered the identification made by the single
eyewitness (Pet. ¶ 12(b)); and (3) the verdict was against the
"weight of the evidence" where the only evidence offered was that of a single unreliable
eyewitness who gave inconsistent descriptions that did not match
Roman's appearance (Pet. ¶ 12(c)).
For the reasons set forth below, Roman's petition should be
During voir dire, the prosecutor asked certain potential jurors
to provide further information about situations in which they
themselves had been victims of crimes. (E.g., Voir Dire
2:*fn1 Tr. 90; Voir Dire 3: Tr. 189.) The prosecutor asked
the following type of questions directed at individual jurors:
Q: Has anyone here been in a situation where you've
been in actual fear of your life? Ms. Maholmes, I
know you raised your hand. Mr. Coplin and Espinol,
would you care to Ms. Espinol, would you share it.
(Voir Dire 3: Tr. 189; see also id. at 189-91.)*fn2
another juror who had told the judge he had been robbed, the
prosecutor asked, "Would you like to share a bit of what happened
to you that day?" (Voir Dire 2: Tr. 90.) The judge, however, did
not allow the juror to answer, saying: "I don't think we need
each juror to go through their own individual experiences about
being a crime victim." (Voir Dire 2: Tr. 90.) The prosecutor
asked prospective jurors hypotheticals in which the prospective juror was placed in the role of a crime victim.
(Id. at 92.) For example, the prosecutor engaged one
prospective juror in the following exercise:
[A.D.A.] CORREA: I think, Mr. Sanchez, you had
mentioned that you were the victim of an assault?
PROSPECTIVE JUROR: Yes.
MS. CORREA: Some time ago. Let's say, hypothetically
speaking, the person who assaulted you had been
apprehended and I get that case and there was a
situation where you were assaulted. There were people
out there, but you're the only witness to that
assault. That case lands on my desk. Should I
prosecute that case with one witness?
PROSPECTIVE JUROR: Yeah.
MS. CORREA: And why do you think I should?
PROSPECTIVE JUROR: `Cause I was a victim.
(Voir Dire 2: Tr. 92; see also id. at 92-93, 95-97.) Defense
counsel did not object. (Id.)
The prosecutor also asked the potential jurors hypothetical
questions designed to show that one could remember a stranger who
did something bad to you if you saw him a few days later:
[A.D.A.] CORREA: All right. I have a quick question.
Let's say, Mr. Lloyd you look so cute today. Let's
say you're on the train and you have these brand new
spanking shoes on, your nice gray shoes, and someone
happens to come and happens to spit on your brand new
shoes and you're livid. You look down and there's
like, you know, and you give that person a hard look
and that person just smiles, walks away. You see that
person in the next car maybe like five minutes later.
You gonna remember that person's face? PROSPECTIVE JUROR: Yes.
MS. CORREA: Right. He just spit on your $450 shoes
and you're livid, right?
PROSPECTIVE JUROR: Yes.
MS. CORREA: How about the next day, you catch that
same train again, you see that person. You think
you're gonna remember that face?
PROSPECTIVE JUROR: I'm pretty sure I will.
MS. CORREA: How about a week later, you think you'll
remember that person? That person over there spit on
my shoes. You think you'll remember that under those
PROSPECTIVE JUROR: Yes.
MS. CORREA: What other circumstances do you guys
think in order for an identification procedure to be
made, and you might think I expect you're going to
be hearing some evidence of an identification
procedure during my trial.
What factors do you think you would consider in
determining whether or not the witness's
identification is correct?
Miss Lloyd, what circumstances, what factors do you
think you'd consider, would you take in
consideration; for example, the lighting conditions?
PROSPECTIVE JUROR: Yes.
* * * * *
MS. CORREA: If there's anything blocking the face,
maybe the length of time, right? I mean, in our
since it happens, what, like 15, 20 seconds, a minute
maybe. But she spit on your shoes, right? That's like
some rough stuff, so you're gonna remember that,
right? PROSPECTIVE JUROR: Yes.
MS. CORREA: You think like the circumstances under
which something happens is gonna make you remember,
too? Like if something, you know, like spitting on
your shoes or you know, like maybe someone eats your
sandwich that you left at your desk, you think you're
PROSPECTIVE JUROR: Yes.
(Voir Dire 2: Tr. 97-100.) Again, there was no objection from
defense counsel. (Id.)
Defense counsel also asked prospective jurors to imagine that
"something dramatic" had happened to them, would they be able to
accurately describe it in the future? (Voir Dire 2: Tr. 111: "I
want you to imagine that something really horrible happened to
you. Take that back. Not necessarily. Just something dramatic,
something happened. And imagine you were asked to describe that . . .
in the future.") Defense counsel tied this into his theme
that the victim was mistaken in identifying Roman as the robber.
(Voir Dire 2: Tr. 112-14; see also Voir Dire 3: Tr. 132-34,
The first two days of jury selection resulted in five jurors
being selected. (See Voir Dire 3: Tr. 122-23.) Voir dire
continued on September 17, 2002. The prosecutor gave the
prospective jurors hypotheticals in which she, the prosecutor,
had committed a crime against them and she asked them to describe
her, i.e., describe the perpetrator:
[A.D.A.] CORREA: . . . Ms. Somayya, let's say I jump
over [this] ledge and yank your chain off and run out
of the door. How would you describe me to the police. PROSPECTIVE JUROR: Well, a young lady who stole
long hair, I'd give the color of [your] hair
MS. CORREA: Describe me. I'm grabbing you, I'm
running out of the door. The police come to take your
PROSPECTIVE JUROR: I would say she's tall and slim.
MS. CORREA: What's my height.
PROSPECTIVE JUROR: Six feet.
MS. CORREA: Weight.
PROSPECTIVE JUROR: Around 120, 125.
. . .
MS. CORREA: What's the color of my hair.
PROSPECTIVE JUROR: Light brown.
MS. CORREA: What would you tell the cops I was my
PROSPECTIVE JUROR: She is more, a little she looks
MS. CORREA: What's Hispanic.
PROSPECTIVE JUROR: No, Asian.
MS. CORREA: Who's my next victim. Ms. Venero, how
[about] you. I jump and grab your chain and run out
of the door, cops come and take a report. How are you
going to describe me.
PROSPECTIVE JUROR: Tall, like white Hispanic . . .
MS. CORREA: Describe my hair slowly.
PROSPECTIVE JUROR: Blonde hair with highlights. MS. CORREA: How tall am I.
PROSPECTIVE JUROR: 5/9.
MS. CORREA: Okay. Mr. Nicholson, how are you.
PROSPECTIVE JUROR: Six foot, late twenties, brownish,
(Voir Dire 3: Tr. 115-17.) The prosecutor summed up what her
MS. CORREA: Okay. So we have a whole range of
descriptions. I have Caucasian, I have Hispanic, I
have Asian. Does that mean you guys are talking about
a different person or the same person.
Can you guys appreciate that people describe things
in different ways. You said you really couldn't
articulate, but you were able to see me on the corner
eating a hot dog. And you guys saw me last Friday and
last Thursday, you guys were sitting over here, and
you didn't get a chance to look at me, but that
doesn't mean you can't recognize me.
(Voir Dire 3: Tr. 118.)*fn3
Defense counsel did not object.
When the next round of prospective jurors was seated, the
prosecutor repeated the same scenario, asking them to imagine
that she jumped over the ledge and grabbed the prospective
juror's purse (Voir Dire 3: Tr. 183):
[A.D.A.] CORREA: You guys are in the unenviable
position of being the last group so you heard
everything that I have to say. But there's one thing
I want to stress is that I've been up here smiling,
talking about hypotheticals, and joking a little bit
but that doesn't mean there's no gunpoint robbery. It is a serious case, both to myself, the People and
also to the defendant. I don't want to you think
because I've been joking and talking about ledgers
and descriptions that detracts from the seriousness
of the case. Do you understand.
. . . .
MS. CORREA: How about my background.
PROSPECTIVE JUROR: Latino, Spanish.
MS. CORREA: How about you, Ms. Montero.
PROSPECTIVE JUROR: 5/10, long hair, Asian, skinny.
MS. CORREA: Ms. Eng is laughing. What's your
PROSPECTIVE JUROR: Of you. You told us part of it
before. 5/10, 135, 140 pounds. That's why I'm
MS. CORREA: Can you all appreciate the different
descriptions. I'm actually Puerto Rican, a lot of
people don't believe me but we're talking about the
same person, different descriptions, people look at
things differently. Some people concentrate on hair
or eyes but or height.
It's a gun point robbery. It involves one witness and
I know I talked a little about that earlier and also
I'm going to take you to Ms. MacDonald's. If I jump
over the ledge and grab your purse and run out the
door you call the police, you guys go around the
block looking for me, you see me. I don't have the
purse anymore. Do you expect that I should have the
purse on me.
PROSPECTIVE JUROR: No.
MS. CORREA: Why not. PROSPECTIVE JUROR: You're going to get rid of the
evidence. You know, it may turn out to be yes that
you did it, just because you don't have it doesn't
mean you didn't do it.
MS. CORREA: Everybody understands that concept. How
about when you see me on the street.
PROSPECTIVE JUROR: I would recognize you right away.
MS. CORREA: You would recognize me. How about if you
say that's her and that's her, the cops are like all
right, where are your witnesses, Ms. McKegney. You're
saying officer it's me telling you she did it. No, I
can't report that, I need more than one witness. What
do you think of that.
PROSPECTIVE JUROR: My word should be sufficient . . .
MS. CORREA: Why.
PROSPECTIVE JUROR: Because I was the victim.
MS. CORREA: You need more witnesses.
PROSPECTIVE JUROR: From my understanding, it happened
to me, so you have to go from there, it's my word.
MS. CORREA: Your word is sufficient.
THE COURT: Your word is sufficient, if it's truthful.
PROSPECTIVE JUROR: It's truthful, if it happened to
THE COURT: You might be saying if you would say it
would be truthful and it would be accurate that's the
judgment you will have to make about the witness when
you hear her, right.
PROSPECTIVE JUROR: Of course. MS. CORREA: So as you said, one witness, yourself, is
sufficient and you will judge the sufficiency of the
testimony if and when you are selected as a juror in
(Voir Dire 3: Tr. 182-85.) Again, defense counsel did not object.
The Prosecution Case at Trial
April 4, 2002
On a sunny April 4, 2002, at approximately 3 p.m., Kelly
Martinez was robbed at gunpoint of approximately nine hundred
dollars at the corner of Union Avenue and East 161st Street in
the Bronx. (Martinez: Trial Transcript ["Tr."] 89, 92-95, 98-99.)
On that day, Martinez, a resident of Fox Street*fn4 in the
Bronx (Martinez: Tr. 85-86), was returning from work and walked
from the train station to a check cashing store across the street
from the train station, between 160th Street and Prospect Avenue.
(Id. at 90-92.) Martinez cashed a $309 child support check and
put that money in her purse along with $600 of rent money, and other personal
items such as her credit cards, her key, and her identification.
(Id. at 92-93.)
On her way to pick up her son at day care with her black
pocketbook strap over her left shoulder, on the corner of 161st
Street and Union Avenue, a man grabbed her elbow and hit her on
the head with a hard object. (Id. at 94-95, 171.) Martinez
Everything happened so fast. I know as I was walking
suddenly I heard like foot step, keep walking,
suddenly somebody grabbed me through my elbow. I felt
like someone like something fell on my like I
felt like a big rock or something really hard on my
head and then I looked back to see.
(Id. at 171.) In fact, it was a gun that hit her in the head.
(Id. at 170.)
Martinez turned around and Roman pointed a gun in her face.
(Id. at 95, 97-98, 172 (she saw "[t]he defendant wearing a
black leather jacket with a gunpoint had [sic] at me.").)
Martinez testified that the man was "my size"*fn5 (id.
at 99, 281), that he was wearing a baseball cap and sunglasses
(id. at 97, 99) and that the person was the defendant, Ricardo
Roman. (Id. at 97-98, 172.) Martinez further testified that
nothing had obstructed her view of Roman. (Id. at 98.)
The robber told Martinez to let go of her purse and she
complied. (Id. at 99.) After she dropped her purse to the
ground, the robber struck her again with his gun. (Id. at
99-100, 170.) As Martinez was dropping to the floor, he struck her a third time
with his gun to make sure she dropped completely to the floor.
(Id. at 100, 170.) Martinez testified:
When he hit me the first time, I turn around, turn
around and then he said let go of the purse. I let go
of my purse. When he hit me the second time on my
head right here, okay, I was going I was going on
the floor in one knee and then he hit me as I was
falling, as I was falling because I was the second
time I was in almost on one knee, I fell down on one
knee and as I was falling he hit me again the third
time and I was on the floor. That's what happened.
(Id. at 280-82; see also id. at 170, 216.)
Martinez stated that from the time that she was hit on the back
of her head until the time she was on the ground and the robber
ran away took ten or fifteen seconds. (Id. at 228.) Martinez
further testified that she was on the ground for approximately
three seconds (id. at 229), people helped her up (id. at 100,
229, 267), and that she chased the robber (id. at 102, 267).
She said to the people who helped her up, "let me go" and she
"start running." (Id. at 100, 230.) Martinez ran after the
robber for a bit and the robber turned around "seconds, no[t]
minutes" after she got up and started chasing him.*fn6
(Id. at 102, 237, 271.) He was no longer wearing sunglasses.
(Id. at 102.) Martinez testified that nothing was blocking her
view of his face at that point. (Id. at 103, 233-34.) Martinez
could see that the robber had dark brown eyes, a small black
mustache, and wore "black pants, a black leather jacket, with an
Indian on the back," and tan Timberland boots. (Id. at 103,
105, 107-08.) David Soler, a superintendent on 161st Street, saw a Hispanic
man, about 5'6½" tall, wearing a baseball cap and a leather
jacket with an Indian on it, running toward 160th Street with a
gun in one hand and a purse in the other. (Soler: Tr. 355-58.)
Jeremes Cortez, who also was working in the area, saw a Hispanic
man in dark blue clothing running toward 160th Street with an
object resembling a gun in his hand. (Cortez: Tr. 400-02.)
Martinez described what happened after that:
And then the group of persons, a group of people came
to me start hugging me. You bleed, you cannot, a guy,
you bleeding a lot you need to stop, that's money,
forget it. We called the ambulance, you bleeding a
lot. You need to calm yourself down. I said no, leave
me alone, leave me alone . . . I told those men, I
want to please let me go . . . I wanted I want to
catch that man.
But I didn't they didn't want me to do it. They
said, I said please go inside, I will pay anything, I
want to catch that guy. They said no, they start
holding me, we're going to take you across the
street. We called the ambulance, we're going to call
the police calm yourself down, calm yourself down.
(Martinez: Tr. 102-03.)
Emergency Medical Technician ["E.M.T."] Mario Maldonado, who
arrived at the scene to treat Martinez for her physical injuries,
testified that she was "upset" and "bleeding profusely from the
top of her head." (Maldonado: Tr. 52-54, 56, 59, 63.) On
cross-examination Maldonado explained that head wounds tend to
bleed more profusely than an equivalent cut to another part of
the body. (Id. at 66-67.)
Martinez was still bleeding when the first police car arrived.
(Martinez: Tr. 275.) She testified that she was crying while she
was talking to the police officers: "I was crying because I was shock and I thought this man was going to kill me because
he hit me three times on my head. I was thinking about my kids."
(Id. at 276.)
Martinez was transported to Lincoln Hospital (Maldonado: Tr.
64; Martinez: Tr. 110) where she remained for seven to eight
hours and "they did a C.T. scan because I have a lot of
laceration on the head and it was bleeding a lot." (Martinez: Tr.
Detective Mark Davis interviewed Martinez at Lincoln Hospital
approximately two hours after the robbery. (Davis: Tr. 364, 366;
Martinez: Tr. 110, 204.) Detective Davis testified that Martinez
described the robber as being "a male Hispanic, approximately 30
years of age" who was "short [with a] small frame." (Davis: Tr.
368; see also Martinez: Tr. 111-12.)
April 10, 2002
Six days later, on April 10, 2002, which was Martinez's
daughter's birthday (Martinez: Tr. 112: "it was my daughter's
birthday, that's why I . . . could never forget it."), Martinez
was on her way to work at 8 a.m. and saw the man who had robbed
her, Roman. (Id. at 113-15, 139.) Martinez was walking down
East 161st Street, turned right onto Prospect Avenue, was walking
down Prospect Avenue towards East 160th Street, the Prospect
Avenue train station, and as she was approaching the steps of the
train station, she saw the robber.*fn7 (Id. at 113-15.)
Martinez testified: "Next to the stairs, I see a man looking
towards me and I looking at him and I say, oh, God this is the
man that took my purse." (Id. at 113.) Martinez immediately recognized
Roman and "[h]e open his eyes, he was he was like in shock that
I recognized him." (Id. at 115.) Martinez chased him again and
that "I see him running towards the same place that he was
running when he took my purse." (Id. at 116.) Martinez called
the police on her cellular phone and said, "I was robbed on April
4th, please send a cop I seen the guy who did it." (Id.)
Martinez testified further:
What I did, I hide myself since I was going, then
there was a kid, a guy asked me, are you okay because
I was crying. And I say, sir, I was robbed five or
six something like that and I just saw the man. Do
you see a man that's wearing a black jacket, black
pants, and yes, this man is running . . .
I stay up there waiting for the police to come. But
once, that there was a moment that when I look I
couldn't see him. And I say, God, I cannot let go I
cannot let this man disappear on me. I cannot let
this man disappear on me. So what I did was, I went
downstairs again, okay. And I saw, I saw him again
. . .
Right there on Prospect and 160, in the same area
that he was talking to his friends, he was talking to
a woman. . . . Same area when I saw him. When I saw
him, I panicked and what he did, he start running
towards Prospect and Montefiore. And then I start
looking, I said why the police are not here and what
I did, I saw marshals across the street that was
going to take a car away and I went to them. And I
told them please help me, I was robbed and I showed
them a piece of paper that [Detective] Davis gave me
and I showed them that I was robbed and I had I
have seen the guy who did it, please help me, please
call the police.
(Id. at 117, 120.)
The marshals used Martinez's cell phone to call the police.
(Id. at 121.) Martinez testified that the robber started
running (id. at 122) and the marshals:
tell me relax, stay next to me, they're going to come
. . . Since the cop, they was not coming, they told
me to go inside. They told me to go inside the van
with . . . the marshal. Once I was inside, inside the van with him,
someone call on the walkie talkie and say that the
cops are back, you know, the officer arrive and they
are he told me to, that they there.
Police Officers Shando Lowrance and Moises Feliz responded to a
radio call from a police dispatcher and arrived at the scene
approximately five minutes after receiving the call. (Lowrance:
Tr. 290-92, 311.) Martinez got in their vehicle and they
"look[ed] around for [the] suspect" for "approximately 8 to 10
minutes." (Lowrance: Tr. 292-93, 310; see also Martinez: Tr.
122-23.) Martinez testified:
The cops told me I'm sorry we cannot see him, we
didn't see him. So they left me in the same place
that, the same street for the train station that I
saw Mr. Roman. And I told them please don't let me
here, because maybe he's hiding and he's maybe
capable of to do something to me.
(Martinez: Tr. 123; see Lowrance: Tr. 293, 310.)
As the police car stopped at a red light, Martinez spotted
Roman standing on the corner of 160th Street and Prospect Avenue,
approximately five feet or less from the steps leading up to the
train station. (Martinez: Tr. 123-24; Lowrance: Tr. 310-12.)
They said okay we're going to take you to I'm going
to take you to a new train station . . . [T]here was
a red light there. As I remember, something like my
instinct to look back, I was inside the car, with the
officer and something told me to look back the same
area that he was hanging out with his friend because
there was a group of people still there and when I
look back I seen someone like really next to the,
against the . . . wall from the stairs that had the
same boots, the same black pants the same black
jacket. And I screamed to the officer, that's the man. And
then the officer got off and then I got off and then
when they have him in the wall, I look at his face
and I said, yes, that's the man who did it, that's
(Martinez: Tr. 123-24.)
The police arrested Roman, who was 5'6", 135 pounds, and 37
years old. (Lowrance: Tr. 290-91, 294, 299-300, 309-10.)
Martinez testified that she had no difficulty seeing the
defendant's face that day, that she had never seen him before
April 4th, and that she had only seen him on April 4th and April
10th. (Martinez: Tr. 134-35.) When cross examined about whether
she could have been mistaken regarding whether Roman was or was
not the perpetrator, Martinez responded, "I'm sure a hundred
percent . . . I'm sure he did it." (Id. at 173.) On redirect
examination, the prosecutor asked Martinez again:
Q. Is there any doubt in your mind that this is the
man who robbed you?
A. No, that's the man who did that to me, that's the
(Id. at 285.)
Martinez explained to the jury how this incident has affected
Now that I'm waiting in the bus stop with my kid or
even with myself anyone that come close to me or a
group of guys I have to be looking back and always
make sure what they have on and everything, like
thinking that they're going to do anything to me.
Anybody is running, you see me looking back or see
what color and then when I have a lot of my money in
my bag I take a cab. In one day this man have changed
my life, not just me my kids, too.
(Id. at 286.) The 911 Tape
A 911 call tape from April 10, 2002 was admitted into evidence
as an excited utterance, and played for the jury. (Tr. 134; see
also Tr. 125-31.) The portion of the 911 tape that was played
for the jury was where the city marshal relayed Martinez's
description of the man she had just seen. (Tr. 128.) The judge
admitted it as an excited utterance, ruling that it was not the
product of the excitement of the crime but of the excitement of
recognizing a person who had committed a past crime. (Tr. 128,
Defense counsel objected that this was well after the crime
itself and that since Martinez was standing right next to city
marshals, she had no reason to be afraid and therefore it did not
meet the excited utterance standard. (Tr. 129, 131.) The judge
I'm ruling that that is a product of the excitement
not the robbery six days earlier, [not] at all. It's
a product of the excitement of April 10th, seeing her
assailant. Case law of excited utterance does not
have to be produced by viewing a criminal event. It's
been admitted in negligence cases where somebody saw
a car go through a red light and a person yelled out
oh, my God, he ran the red light.
So here the event which is stimulating her
recollection is recognizing the person on April 10th
who robbed her several days earlier.
Martinez's Disputed Description of Roman
The judge allowed Detective Davis, who interviewed Martinez at
the hospital two hours after the robbery, to testify about the
description Martinez had given him, although Martinez herself
already had testified to this description. (Tr. 342-52; see
page 14 above for a summary of Davis' testimony.) The prosecution offered Detective Davis's statement under
People v. Huertas, 75 N.Y.2d 487, 554 N.Y.S.2d 444 (1990),
for the purpose of demonstrating that Martinez was able to form a
mental impression of her assailant and provide a verbal
description. (Tr. 326, 342-43, 346.) Defense counsel opposed the
admission of this testimony as improper hearsay, observing that
the complainant had already testified to this description and
that other, more immediate descriptions were going to be brought
in through the testimony of other officers. (Tr. 343-45.)
The defense argued that Huertas does not envision multiple
immediate descriptions. (Tr. 345.) The prosecutor argued that she
was not offering it to bolster the testimony and stated that it
is not a prior inconsistent statement but that it was offered to
show that Martinez was able to accurately identify her assailant
and was able to accurately describe the assailant's appearance.
(Tr. 345-46.) The prosecutor continued to say that defense's
whole line of cross-examination was based upon the argument that
Martinez was unreliable as a witness because she was going
through the stress of the attack and she was not able to form an
accurate mental impression of Roman, and the prosecution was
offering Detective Davis' testimony to show that that was not
true, not to bolster her testimony as to Roman's description.
(Tr. 346.) The defense argued that the prosecutor was offering it
for the accuracy of the statement made to Detective Davis, which
Huertas holds is not allowed. (Id.)
The judge ruled:
[The Court in Huertas] said that particularly in a
case where identification is the principle issue and
where the defense challenges that the witness was
mistaken, not has falsely identified her assailant
but is mistaken in identifying the defendant as her
assailant, that evidence concerning the description
given shortly after the crime enables the jury to compare the defendant's
appearance at that time with the description given
and determine, whether or not the complainant had an
ability to perceive her assailant to perform a mental
image of her assailant and to transfer the mental
image of the corporeal identification made six days
Ultimately yes, that does go to the fact of whether
her identification is accurate. That's the issue in
the case is her identification reliable, is it
accurate. So the People's use of the concept of
accuracy does not take it outside of the purview of
After Detective Davis' direct testimony (summarized on page 14
above) the judge instructed the jury:
[Detective Davis'] testimony was permitted . . . for
a limited purpose that is in your evaluating whether
Ms. Martinez had the capacity to observe her
assailant and to remember the physical characteristic
of her assailant you may consider the description
that she gave to any police officers shortly after
the commission of the crime.
You may consider that description in comparing it
with the appearance of the defendant as he appeared
at about that time, back in April of 2002. Because
you may consider that if . . . the description that
she gave does not match the physical characteristic
of the defendant as he appeared at that time that is
a factor that you may consider in determining whether
the witness had the capacity and abilities to observe
and remember the physical features of her assailant.
Likewise, if the description she gave does match the
physical characteristics of the defendant as he
appeared at that time that is a factor again which
you may assess, which you may consider in assessing
the witness the capacity to have observed the
assailant and to remember the features of her
(Tr. 370-71.) The Defense Case at Trial*fn8
Officer Zajo Hoti, one of the responding officers on April 4,
testified that Martinez told him that the perpetrator of the
robbery was 5'9", 190 pounds, and about 20 years old. (Hoti: Tr.
436.) Sgt. Murphy testified that Martinez told him that the
robber was 5'10" to 6' tall. (Murphy: Tr. 425.)
On cross-examination, the prosecutor tried to explain the
discrepancies in Martinez's descriptions by pointing out that
Martinez was crying when she was talking to Officer Hoti, that he
questioned her while she was crying and being treated by E.M.S.,
that he doesn't speak Spanish (Martinez's native language), and
that Martinez did not check the complaint report for accuracy or
mistakes or sign the complaint report to confirm that it was
accurate.*fn9 (Hoti: Tr. 439-40.) Martinez's height
description to Sgt. Murphy was given when he and another officer
were seated in a patrol car with her, and what she said was the
robber's height was between the height of Sgt. Murphy and the
other officer. (Murphy: Tr. 427-28.)
The judge allowed Roman himself to be "published" to the jury
by the defense without actually testifying. (Tr. 444; see also
Tr. 416-19.) The judge explained to the jury: THE COURT: By publish, he wants you to be able to
view the defendant, okay. Please stand in front of
(Whereupon, the defendant is published to the jury.)
THE COURT: Since there has been testimony and
cross-examination concerning the issues of height and
weight and builds of persons, you're being permitted
to view the defendant. Okay. And age. You can return
to your seat.
(Tr. 444.) The defense rested after this. (Tr. 444.)*fn10
The Defense Summation
Defense counsel stated in summation that a simple question was
involved did Martinez "accurately identify the person who had
robbed her. That's it." (Defense Summation: Tr. 476.) Defense
counsel argued that Martinez made a mistake because of her anger
and fear: "This is a case of anger and fear. And that anger and
fear led to mistake." (Defense Summation: Tr. 477.) Defense
counsel went on to state that Martinez had a fear of strangers
and interactions, she does not socialize, and that she has a fear
of banks. (Id.) He also stated, "Anger plus fear equal[s] a
mistake." (Id. at 480; see also id. at 491.) Defense
counsel also implied that Martinez may have "rehearsed" her testimony. (Id. at 478.) Defense counsel reviewed at length
the testimony about conflicting descriptions of the robber,
arguing mistaken identity. (Id. at 479-89, 491, 494-95.)
The Prosecution Summation
The prosecutor's summation took about thirty pages of
transcript. (Prosecution Summation: Tr. 498-527.) The first words
out of the prosecutor's mouth took defense counsel's "anger and
fear" argument and turned it onto Roman, stating:
MS. CORREA: Good morning, ladies and gentlemen. You
know, [defense counsel] Mr. Sterman is absolutely
correct that anger plus fear equals mistake. But in
this case it is not Ms. Martinez' anger or fear, it's
the defendant's anger. The defendant obviously has
pent up anger issues, if he has a reason to hit a
woman three times on the head.
(Prosecution Summation: Tr. 498.) She said Roman's mistake was
thinking Martinez was an "easy target," but she got up and chased
after him. (Id.) Defense counsel did not object. (Id.)
The prosecutor also said that Roman's running away from
Martinez on April 10 was a sign of his guilt: "Why is a man who
she's never seen before running away from this small woman. I
submit to you, that he's running away because he's the one who
robbed her six days ago. . . . [H]e's doing like Spider Man, he's
looking around to see if cop cars are coming. Come on, does that
not show the defendant's guilt." (Id. at 504-05.) Defense
counsel did not object. (Id.)
The prosecutor told the jury, in reference to defense counsel,
that "it's a shame that a person with a law degree feels the need
to twist the complainant's testimony. . . ." (Id. at 502.) The
defense's objection was implicitly overruled at the time. (Tr.
502.) Outside the jury's presence, after the end of summations,
the judge stated that this comment "would have been better left
unsaid" (Tr. 539) but also stated: "but I don't see any prejudice to the
defendant from that assertion." (Id. at 539-40.)
Regarding the credibility of Martinez's testimony, the
prosecutor stated, "Ms. Martinez, certainly could not have
rehearsed the anguish, the emotion, the torment that you saw her
going through as she sat in this chair and relived what she went
through on April 4, 2002." (Id. at 500.) Defense counsel did
not object. (Id.) The prosecutor summarized Martinez's
identification testimony. (Tr. 500-01, 503-04.) When Martinez is
hit on the head, "[s]he turns around, that's the first
identification." (Tr. 500-01.) "He's arms length from her, she
sees his face." (Tr. 501.) The prosecutor referred to the fact
that the robber was wearing sunglasses, and sarcastically
commented: "We've been here for two weeks. If I put on sunglasses
you guys don't recognize me." (Tr. 501.) The defense's objection
to that last remark was overruled. (Id.) The prosecutor also
said that Martinez's identification of Roman was verified by his
recognition of Martinez, reminding the jurors of Martinez's
testimony that when Roman saw her, his eyes widened and he ran
away: Roman "recognized her as clearly as she recognized him."
(Tr. 507.) Defense counsel did not object. (Id.)
The prosecutor told the jury that Martinez is "a hard working
woman with three young kids." (Id. at 508.) The prosecutor
I submit the most important thing wasn't talking to
Officer Hoti and filling out countless police
The most important thing on her mind was getting to
her son who was waiting at the day care center. So I
submit to you, ladies and gentlemen, that she was
crying, that she was nervous, that she was maybe
upset, bleeding, thinking of her son. . . . I submit
Officer Hoti made a mistake. (Tr. 510-11.) Once again, defense counsel did not object. (Id.)
The prosecutor, in referring to Officer Hoti's mistake, likened
it to a mistake in filling an order at McDonalds (Tr. 510-12),
referring to a theme she had utilized during voir dire.
Referring to a comment by Detective Davis in his testimony
which referred to Martinez's getting up and chasing her robber,
to which an objection had been raised and sustained, the
prosecutor said, "I'm glad that Det. Davis said it was bold,
because it was bold." (Id. at 505.) Once again, defense counsel
did not object. (Id.) The judge later stated that this comment
was improper but "not prejudicial," since "[a]nybody would say
that" about "somebody who's been threatened with a gun, beaten
over the head three times with a gun and robbed to get up and
chase after their assailant . . . either the person is reckless
with abandon or they are bold." (Tr. 532.)
When describing the description of the robber which Martinez
gave to Detective Davis, the prosecutor said:
When Det. Davis is in the hospital in a more relaxed
environment after Ms. Martinez has already digested
the fact that she got robbed and I'm going to have
[to] make due without the hundreds, after she
digested the fact I have to go to my son, and is
treated for injuries, more steadily she is able to
tell Det. Davis the description, which I submit she
gave at the scene . . . Are we getting closer to the
defendant's description, ladies and gentlemen. Taking
away the stress, the crying, the anguish of thinking
oh, my God, how am I going to pay the rent. The
anguish of thinking who's going to pick up my kid.
I'm bleeding over my jacket.
(Summation: Tr. 512.) Once again, defense counsel did not object.
The prosecutor said that Martinez's identification at the train
station was like a "built in lineup" (id. at 503), since "it's
not like the defendant was the only man sitting on the corner and standing on the corner, and she points to him. She points to that
man out of a group of other men." (Id. at 504.) Once again,
defense counsel did not object. (Id.)
The prosecutor referred back to the potential jurors' different
descriptions of her during voir dire and argued that
"[d]escriptions are subjective. What is not subjective here is
the recognition that Ms. Martinez had when she saw the defendant
on April 10, 2002." (Id. at 522.)
At the end of her summation, the prosecutor said that while
Martinez onlysaw Roman for a short time, "where you're staring
face to face with the man that you believe is taking you away
from your three young kids, face to face from the man you believe
is going to be responsible for it being your last day on earth,"
the person is "forever seared into Ms. Martinez' mind." (Tr.
523.) The prosecutor added that the "question is not whether
[Martinez] remembers the defendant's face. The question you
should consider is whether you would ever forget that face."
(Id. at 523.) Once again, defense counsel did not object.
The Defense Motion for a Mistrial
Immediately following the prosecutor's summation, defense
counsel moved for a mistrial, claiming prosecutorial misconduct.
(Tr. 529-30.) Defense counsel objected to the prosecutor's
misstatements of trial testimony, improper denigration of the
defense, and improper statements concerning Martinez's actions.
(Id.) The judge pointed out that defense counsel did not object
(id. at 530-31), to which defense counsel responded that "if
[he] did not object, it was an error but nonetheless . . ."
(id. at 531). The judge denied the mistrial motion on all
grounds. (Id. at 540; see also id. at 531-40.) The judge agreed to give several curative jury instructions. In
response to the prosecutor's statement about defense counsel, the
trial judge instructed the jury that if "you think [an attorney]
misstated the evidence or they have improperly analyzed the
evidence, then don't hold it against the attorney. Just simply
reject the argument." (Id. at 546.) The judge also instructed
the jury that "[i]f any argument was made in summation about some
portion of the evidence which I had ordered to be stricken . . .
you disregard that argument." (Id. at 548; see also id. at
531-32.) Defense counsel explicitly declined a more specific jury
instruction referencing the prosecutor's summation reference to
Detective Davis' struck testimony that Martinez was "bold."
(Id. at 532.)
Verdict and Sentence
On September 24, 2002, the jury found Roman guilty of two
counts of first degree robbery. (Tr. 598, 601-03.) On November
14, 2002, the judge sentenced Roman, as a second violent felony
offender, to concurrent terms of 18 years imprisonment. See
People v. Roman, 5 A.D.3d 311, 311, 773 N.Y.S.2d 551, 551
(1st Dep't 2004).
On December 31, 2003, represented by the Office of the
Appellate Defender, Roman appealed to the First Department,
claiming that: (1) "the prosecutor engaged in substantial
misconduct during both voir dire and summation by directly asking
the jurors to place themselves in the shoes of the victim,
improperly bolstering testimony with her own opinions and
conjecture, and denigrating the defense, thus depriving Mr. Roman
of the core constitutional guarantees of due process and an
impartial jury" (Dkt. No. 5: Killian Aff. Ex. 1: Roman 1st Dep't
Br. at 22; see also id. at 22-35; Killian Aff. Ex. 3: Roman 1st Dep't Reply Br. at
3-12); (2) "Mr. Roman was denied a fair trial by the improper
admission of two pieces of hearsay evidence that the prosecution
relied upon to bolster the identification made by the single
witness and used to suggest to the jury that there was more
impressive evidence than there in fact was" (Roman 1st Dep't Br.
at 36), to wit, the admission of (a) testimony of Detective Davis
regarding the description provided by the victim, and (b) the
admission of part of a 911 tape as the excited utterance of
Martinez (id. at 36-43; see also Roman 1st Dep't Reply Br. at
19-22); (3) the verdict was against the weight of the evidence
(Roman 1st Dep't Br. a 44-49; Roman 1st Dep't Reply Br. at
23-29); and (4) petitioner's sentence was excessive and should be
reduced in the interest of justice (Roman 1st Dep't Br. at
The First Department unanimously affirmed Roman's conviction,
The verdict was not against the weight of the
evidence. There is no basis for disturbing the jury's
determinations concerning identification and
credibility. The purported inconsistencies in the
victim's description of the robber are readily
explainable, and the evidence warrants the conclusion
that she provided a consistent description that
closely matched defendant's characteristics.
The challenged portions of the prosecutor's summation
did not deprive defendant of a fair trial, and the
court properly exercised its discretion in denying
defendant's mistrial motion made after the summation.
Although, as the People concede, the prosecutor
should not have made a comment directed at defense
counsel, the court's curative instruction prevented
this isolated remark from causing any prejudice. The
other challenged remarks constituted fair comment on
the evidence, and reasonable inferences to be drawn
therefrom, made in response to defense arguments.
The court properly admitted testimony about the
victim's description of her assailant to a detective,
since this evidence provided the jury with an
opportunity to compare defendant's appearance with a
description provided shortly after the crime.
The court properly admitted a portion of a 911 tape
as an excited utterance. The record establishes that
the victim was operating under the influence of a
startling event and had no time for studied reflection.
Moreover, there was an added assurance of reliability
since the victim was subject to cross-examination.
We perceive no basis for reducing the sentence.
Defendant's remaining contentions are unpreserved and
we decline to review them in the interest of justice.
Were we to review these claims, we would reject them.
People v. Roman, 5 A.D.3d 311, 311-12, 773 N.Y.S.2d 551,
551-52 (1st Dep't 2004) (citations omitted).
The New York Court of Appeals denied leave to appeal on July 1,
2004. People v. Roman, 3 N.Y.3d 662, 782 N.Y.S.2d 704 (2004).
Roman's Instant Habeas Petition
Roman's federal habeas petition renewed the arguments made in
his First Department appeal brief (except his excessive sentence
claim). (Dkt. No. 1: Pet.; see also Dkt. No. 7: Traverse.)
I. THE AEDPA REVIEW STANDARD*fn11 Before the Court can determine whether Yapor is entitled to
federal habeas relief, the Court must address the proper habeas
corpus review standard under the Antiterrorism and Effective
Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the
role of federal habeas courts in reviewing petitions filed by
state prisoners." Williams v. Taylor, 529 U.S. 362, 403,
120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent
review standard, as follows:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim (1) 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; or
(2) . . . 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)(1)-(2).*fn12
The "contrary to" and "unreasonable application" clauses of §
2254(d)(1) have "independent meaning." Williams v. Taylor,
529 U.S. at 404-05, 120 S. Ct. at 1519.*fn13 Both, however,
"restrict? the source of clearly established law to [the
Supreme] Court's jurisprudence." Williams v. Taylor,
529 U.S. at 412, 120 S. Ct. at 1523.*fn14 "That federal law, as
defined by the Supreme Court, may either be a generalized standard enunciated in
the [Supreme] Court's case law or a bright-line rule designed to
effectuate such a standard in a particular context." Kennaugh
v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas
relief solely by demonstrating that the state court unreasonably
applied Second Circuit precedent." Yung v. Walker,
341 F.3d at 110; accord, e.g., DelValle v. Armstrong,
306 F.3d at 1200.
As to the "contrary to" clause:
A state-court decision will certainly be contrary to
[Supreme Court] clearly established precedent if the
state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases. . . .
A state-court decision will also be contrary to
[the Supreme] Court's clearly established precedent
if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06,
120 S. Ct. at 1519-20.*fn15
In Williams, the Supreme Court explained that "[u]nder the
`unreasonable application' clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor,
529 U.S. at 413, 120 S. Ct. at 1523.*fn16 However, "[t]he term
`unreasonable' is . . . difficult to define." Williams v.
Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court
made clear that "an unreasonable application of federal law is
different from an incorrect application of federal law."
Id.*fn17 Rather, the issue is "whether the state court's
application of clearly established federal law was objectively
unreasonable." Williams v. Taylor, 529 U.S. at 409,
120 S. Ct. at 1521.*fn18 "Objectively unreasonable" is different
from "clear error." Lockyer v. Andrade, 538 U.S. at 75,
123 S. Ct. at 1175 ("The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear error)
with unreasonableness."). However, the Second Circuit has
explained "that while `[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000)).*fn19 "[T]he range of reasonable judgment can depend
in part on the nature of the relevant rule." Yarborough v.
Alvarado, 124 S. Ct. at 2149.*fn20
Moreover, the Second Circuit has held "that a state court
determination is reviewable under AEDPA if the state decision
unreasonably failed to extend a clearly established, Supreme
Court defined, legal principle to situations which that principle
should have, in reason, governed." Kennaugh v. Miller,
289 F.3d at 45.*fn21 Under the AEDPA, in short, the federal courts "must give the
state court's adjudication a high degree of deference." Yung v.
Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone,
125 S. Ct. at 853.
Even where the state court decision does not specifically refer
to either the federal claim or to relevant federal case law, the
deferential AEDPA review standard applies:
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.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell
v. Cone, 125 S. Ct. at 853 ("Federal courts are not free to
presume that a state court did not comply with constitutional
dictates on the basis of nothing more than a lack of citation.");
Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002)
(State court not required to cite Supreme Court cases, or even be
aware of them, to be entitled to AEDPA deference, "so long as
neither the reasoning nor the result of the state-court decision
contradicts them."); Howard v. Walker, 406 F.3d at 122;
Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert,
391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was
"`without merit.'" "Such a summary determination, even absent
citation of federal case law, is a `determination on the merits'
and as such requires the deference specified by § 2254."
Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must
assume that the [state] court relied on it."); Francolino v.
Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate
Division concluded its opinion by stating that it had `considered
and rejected defendants' remaining claims,'" AEDPA deference
applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v.
Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found
that an even more concise Appellate Division disposition the
word `denied' triggered AEDPA deference.").*fn22
terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not
to a disposition `on a procedural, or other, ground.' Where it is
`impossible to discern the Appellate Division's conclusion on
[the relevant] issue,' a federal court should not give AEDPA
deference to the state appellate court's ruling." Miranda v.
Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations
Of course, "[i]f there is no [state court]
adjudication on the merits, then the pre-AEDPA, de novo
standard of review applies." Cotto v. Herbert,
331 F.3d at 230.
Finally, "[i]f [the] court finds that the state court engaged
in an unreasonable application of established law, resulting in
constitutional error, it must next consider whether such error
was harmless." Howard v. Walker, 406 F.3d at 122.
In addition to the standard of review of legal issues, the
AEDPA provides a deferential review standard for state court
factual determinations: "a determination of a factual issue made
by a State court shall be presumed to be correct."
28 U.S.C. § 2254(e)(1); accord, e.g., Rosa v. McCray,
396 F.3d at 220. "The petitioner bears the burden of `rebutting the
presumption of correctness by clear and convincing evidence.'"
Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. ROMAN'S CLAIM THAT THE PROSECUTION'S CLOSING ARGUMENT
VIOLATED HIS RIGHT TO A FAIR TRIAL SHOULD BE DENIED
Roman claims that the prosecutor unfairly prejudiced the jury
during her summation by denigrating Roman and his defense
counsel, misstating evidence, and appealing to the sympathies and
fears of the jury. (Dkt. No. 1: Pet. at pp. 6-12.)
A. Federal Habeas Review Standard for Prosecutorial
Prosecutorial misconduct violates a defendant's due process
rights only when it is of "sufficient significance to result in
the denial of the defendant's right to a fair trial." Greer v.
Miller, 483 U.S. 756, 765, 107 S. Ct. 3102, 3109 (1987);
accord, e.g., United States v. Muja, No. 02-1175,
102 Fed. Appx. 212, 216, 2004 WL 1406312 at *3 (2d Cir. June 23,
2004) ("`It is a rare case in which improper comments in a
prosecutor's summation are so prejudicial that a new trial is
required.'"); United States v. Coriaty, 300 F.3d 244, 255 (2d
Cir. 2002) (Even on direct federal appeal, "[b]efore a conviction
will be reversed, a prosecutor's comments on summation must `so
infect? the trial with unfairness as to make the resulting
conviction a denial of due process.' The defendant must point to
`egregious misconduct.'") (quoting Donnelly v. DeChristofaro,
416 U.S. 637, 643, 647, 94 S. Ct. 1868, 1871, 1873 (1974)); United States v.
Elias, 285 F.3d 183, 190 (2d Cir.) ("To warrant reversal, the
prosecutorial misconduct must cause the defendant substantial
prejudice by so infecting the trial with unfairness as to make
the resulting conviction a denial of due process.") (internal
quotations omitted), cert. denied, 537 U.S. 988, 123 S. Ct. 430
(2002); United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.
1995), cert. denied, 516 U.S. 880, 116 S. Ct. 214 (1995);
Blisset v. LeFevre, 924 F.2d 434, 440 (2d Cir.), cert.
denied, 502 U.S. 852, 112 S. Ct. 158 (1991).*fn25 Stated
another way, "the law is settled that `federal habeas relief is
not available on the basis of improper prosecutorial statements
at trial unless the errors, in context of the summation as a
whole, were so fundamentally unfair as to deny petitioner a fair
trial.'" Tejada v. Senkowski, 92 Civ. 3012, 1993 WL 213036 at
*3 (S.D.N.Y. June 16, 1993), aff'd mem., 23 F.3d 397 (2d Cir.),
cert. denied, 513 U.S. 887, 115 S. Ct. 230 (1994).*fn26 To properly evaluate the prosecution's actions, the alleged
misdeeds must be placed in context, and "[t]he severity of the
misconduct, curative measures, and the certainty of conviction
absent the misconduct are all relevant to the inquiry." Blisset
v. LeFevre, 924 F.2d at 440; accord, e.g., Greer v.
Miller, 483 U.S. at 766, 107 S. Ct. at 3109 ("it is important
`as an initial matter to place th[e] remar[k] in context'");
United States v. McCarthy, 54 F.3d at 55; United States v.
Friedman, 909 F.2d 705, 709 (2d Cir. 1990); United States v.
Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied,
479 U.S. 827, 107 S. Ct. 104 (1986).*fn27
B. Application of the Standard to Roman's Prosecutorial
Summation Misconduct Claim
Under New York law, statements during summation are permissible
if they constitute a "fair comment on the evidence" at trial and
reasonable inference therefrom, or a "fair response to remarks
made by the defense counsel during summation." People v.
Perez, 794 N.Y.S.2d 439, 440 (2d Dep't 2005); see also,
e.g., People v. Seit, 86 N.Y.2d 92, 99, 629 N.Y.S.2d 998,
1001 (1995) (Prosecutor's comments did not warrant reversal when
made in "fair response to defense counsel's summation"); People
v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 381 (1993)
("[T]he prosecutor's closing statement must be evaluated in light
of the defense summation, which put into issue the complainants'
character and credibility and justified the People's response.");
People v. Nazario, 4 A.D.3d 183, 184, 771 N.Y.S.2d 649,
649-50 (1st Dep't 2004); People v. Parrella, 4 A.D.3d 132, 132, 771 N.Y.S.2d 511, 512 (1st Dep't),
appeal denied, 2 N.Y.3d 804, 781 N.Y.S.2d 303 (2004).
Here, Roman claims the prosecutor "offer[ed] conjecture about
thoughts, emotions, and actions" of the complainant. (Pet. at p.
9.) The record supports the First Department's holding that most
of the challenged remarks were a "fair comment on the evidence,
and reasonable inferences . . . drawn therefrom, made in response
to defense arguments." See People v. Roman, 511 A.D.3d 311,
311, 773 N.Y.S.2d 552, 552 (1st Dep't 2004).
First, Martinez's trial testimony (Tr. 275-76) fully supported
the prosecutor's comments that Martinez was "a hard working
woman with three young kids" who was "crying, . . . nervous . . .
[and] thinking of her son" while giving the initial description
of her assailant (Tr. 507). Second, the prosecutor's argument
during summation that Martinez was in a less confused state when
she gave a statement to Detective Davis at the hospital than when
she spoke to Officer Hoti directly after the crime constituted a
reasonable inference based on Martinez's testimony and the two
hours that had passed between the first and second statements.
(See page 14 above.) Moreover, these statements responded
directly to the defense's theory of mistaken identity by
referencing Martinez's mental state at the time of the assault
to explain why her later description of the assailant was more
accurate than the initial police report. (See pages 22-23
above.) Even if the statements also appealed to the fears and
sympathies of the jury, "the over-all effect . . . was within the
range of acceptability." People v. D'Alessandro,
184 A.D.2d 114, 119, 591 N.Y.S.2d 1001, 1005 (1st Dep't 1992) (prosecutor's
comments appealing to sympathies and fears of the jury were not grounds for reversal
when summation generally fell within the range of acceptable
rhetoric), appeal denied, 81 N.Y.2d 884, 597 N.Y.S.2d 945
Third, the prosecutor's colorful description of Martinez's
pursuit of Roman on April 10, 2002, in which she stated Roman was
"doing like Spider Man" and looking over his shoulder, also
qualified as a fair comment on Martinez's testimony regarding the
pursuit. (Tr. 504-05). The trial court had permitted testimony
regarding Roman's flight (id. at 113-16), and the prosecutor's
characterization was a direct inference from that testimony.
See, e.g., People v. Johnson, 287 A.D.2d 651, 651,
732 N.Y.S.2d 22, 23 (2d Dep't 2001) ("[E]vidence of flight may be
admitted to raise an inference of guilt even where it is
ambiguous and does not exclude every possible innocent motive."),
appeal denied, 97 N.Y.2d 706, 739 N.Y.S.2d 106 (2002).
Fourth, Roman claims the prosecution mischaracterized Detective
Davis' testimony by stating that he testified the assailant was
described as 5' 6" tall. (Pet. at 18.) Roman's claim that Davis
actually testified that the assailant was 5' 9" is mistaken; in
fact he testified that Martinez described the assailant as "a
little bit larger than [Martinez and] not my size, height 5'
9." (Davis: Tr. 367.) Because defense counsel failed to object
when the prosecutor's summation statement was made (Tr. 512), and
the referenced trial testimony was sufficiently ambiguous to be
susceptible to multiple interpretations, this Court accepts the
trial court's finding that the statement was proper. See,
e.g., United States v. Robinson, 485 U.S. 25, 31,
108 S. Ct. 864, 868 (1988) (deferring to the trial court's
interpretation of ambiguous language when such interpretation
justified prosecution's challenged closing statement and defense counsel did not object
during summation). Even if this statement had misinterpreted
trial testimony, a single inaccurate comment during summation is
not grounds for habeas relief. See, e.g., Tankleff v.
Senkowski, 135 F.3d 235, 251-53 (2d Cir. 1998) (even a
"particularly troubling" misstatement of a witness' pretrial
testimony during summation is not grounds for habeas relief when
it was short and fleeting); United States v. Simons, No.
96-1730, 129 F.3d 114 (table), 1997 WL 701369 at *2 (2d Cir. Nov.
10, 1997) ("It is a rare case in which improper comments in the
prosecutor's summation are so prejudicial that a new trial is
required.") (internal quotations omitted), cert. denied,
523 U.S. 1110, 118 S. Ct. 1683 (1998).
The prosecutor's other challenged statements were appropriate
rebuttals to defense arguments. The prosecutor argued that
Martinez would not have been able to rehearse the emotion present
in her testimony in response to the defense's suggestion (Tr.
478) that Martinez had in fact rehearsed her testimony. See,
e.g., People v. Overlee, 236 A.D.2d 133, 144,
666 N.Y.S.2d 572, 579-80 (1st Dep't 1997) ("Faced with defense counsel's
focused attack on their [witness'] credibility, the prosecutor
was clearly entitled to respond by arguing that the witnesses
had, in fact, been credible."), appeal denied, 91 N.Y.2d 976,
672 N.Y.S.2d 855 (1998); see also, e.g., People v. Ruiz,
8 A.D.3d 831, 832, 778 N.Y.S.2d 559, 559 (3d Dep't)
(prosecution's summation may respond to attacks on credibility of
prosecution witnesses), appeal denied, 3 N.Y.3d 711,
785 N.Y.S.2d 39 (2004).*fn28 Similarly, the prosecutor, in analogizing Officer Hoti's possible
error when taking Martinez's statement to that of a McDonald's
employee, attempted to demonstrate that despite the defense's
contentions to the contrary, Officer Hoti had made a mistake even
though he was trained to record descriptions of suspects. (Tr.
510-12.) The prosecutor's statement that Roman "must have pent up
anger issues" was likewise a permissible response to the
defense's theme (Tr. 477) that "fear and anger" motivated
Martinez's testimony. See, e.g., People v. Overlee,
126 A.D.2d at 143, 666 N.Y.S.2d at 579 (prosecution's summation
impugning defendant's character fell "within the bounds of
permissible rhetorical comment" when responding to similar
defense attacks on prosecution witnesses.)
Although most of the prosecutor's statements discussed above
fell within the "wide bounds of rhetorical argument comment
permitted in closing arguments," People v. Shelton,
307 A.D.2d 370, 372, 763 N.Y.S.2d 79, 82 (2d Dep't 2003), aff'd,
1 N.Y.3d 614, 777 N.Y.S.2d 9 (2004), two remarks crossed the line
into impropriety. Neither, however, violated Roman's due process
right to a fair trial. First, the prosecutor stated that "it's a
shame that a person with a law degree feels the need to twist the
complainant's testimony." (Tr. 502.) "It is improper for a
prosecutor to impugn defense counsel's integrity." People v.
LaPorte, 306 A.D.2d 93, 95, 762 N.Y.S.2d 55, 57 (1st Dep't 2003) (prosecutor crossed the "well-defined limits of proper
rhetorical comment" with summation comments suggesting the
defense spoke "mumbo jumbo" and that it believed "the moon is
made of green cheese"); see also, e.g., People v. Pagan,
2 A.D.3d 879, 880-81, 769 N.Y.S.2d 741, 742 (2d Dep't 2003)
(prosecutor improperly stated during summation that defense
counsel had tried to confuse the complainant and mislead the
jury); People v. Goldstein, 196 Misc. 2d 741, 744,
763 N.Y.S.2d 390, 393 (Sup.Ct. App. Term 2003) (prosecutor
improperly denigrated defense counsel by stating he tried to
confuse the complainant during cross examination and mislead the
jury during summation). Indeed, the prosecution conceded before
the First Department that this was an improper statement by the
prosecutor. See People v. Roman, 5 A.D.3d at 311,
773 N.Y.S.2d at 552 (quoted at page 28 above).
In a federal habeas petition, improper conduct by the
prosecution during summation must be considered in light of any
curative instruction from the trial court, the severity of the
comment, and the likelihood of conviction if the statement had
not been made. In this context, the prosecutor's denigrating
defense counsel did not deprive Roman of a fair trial. See,
e.g., United States v. Thomas, 377 F.3d 232, 245 (2d Cir.
2004) ("[E]ven if the [prosecutor's] comments were improper, they
did not cause [the defendant] substantial prejudice. . . . The
alleged misconduct, if any, was not severe in this case[, the
district judge] provided an immediate curative instruction [and]
. . . it is highly likely [the defendant] would have been
convicted even in the absence of the prosecutor's remarks.");
United States v. Drescher, No. 01-1705, 77 Fed. Appx. 45, 48,
2003 WL 22299681 at *2 (2d Cir. Oct. 8, 2003) (despite improper
remark by prosecution in its rebuttal summation, given the
"innocuous interpretation drawn by the district judge, the
strength of the evidence against [the defendant], and the district court's
instructions to the jury, which insured the jury's proper
understanding of the defendant's rights, we find that the
incident was harmless beyond a reasonable doubt and had no effect
on the jury's deliberations."); United States v. Gambina,
Nos. 00-1545, 02-1076, 51 Fed. Appx. 40, 42, 2002 WL 31558029 at
*1 (2d Cir. Nov. 19, 2002) ("[T]he prosecutor's remarks did not
cause `substantial prejudice.' While some of the? comments were
inappropriate, none were severe or egregious. Moreover, the
challenged remarks were substantially mitigated by defense
counsel's objections, the trial court's instructions, and the
prosecutor's clarifications. Finally, there was overwhelming
evidence of [the defendant's] guilt."); United States v.
Elias, 285 F.3d at 190-92 (prosecution comments during
summation that "grossly mis-characterized [the defense's
argument] and said that the defense was . . . insulting [a]
battered victim" do not require a new trial when they constitute
"an aberration in an otherwise fair proceeding," the trial judge
issued a curative jury instruction and the defendant "most likely
would have been convicted even without the improper remarks."),
Rao v. Artuz, No. 97-2703, 199 F.3d 1323 (table), 1999 WL
980947 at *2-3 (2d Cir. Oct. 22, 1999) ("strength of the evidence
against the petitioner" was enough to "bar? the conclusion that
he suffered actual prejudice as a result of the prosecutor's
remarks"); Tankleff v. Senkowski, 135 F.3d at 253
("[S]everity of the prosecutor's misconduct . . . was mitigated
by the brevity and fleeting nature of the improper comments" and
"the evidence was [not] so closely balanced that the prosecutor's
comments were likely to have had a substantial effect on the
jury"); Herrera v. Lacy, No. 95-2800, 112 F.3d 504 (table),
1996 WL 560760 at *2 (2d Cir. Oct. 3, 1996) ("While some improper
statements were made . . ., the misconduct was not so severe that
it was not rendered harmless by the court's curative instruction
and the substantial evidence of [petitioner's] guilt."); Bentley v. Scully, 41 F.3d 818,
824-25 (2d Cir. 1994) (denying prosecutorial misconduct claim
where prosecution presented "compelling evidence" against
petitioner and alleged misconduct was both brief and isolated),
cert. denied, 516 U.S. 1152, 116 S. Ct. 1024 (1996); United
States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (court's
instructions to jury obviated any prosecutorial error);
Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991)
(although prosecutor made improper statements during summation,
no prejudice to defendant where trial court instructed jury that
the summations were not evidence and case against defendant was
strong); Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir.
1991) (no violation where "cumulative effect of the prosecutor's
alleged misconduct was not so severe as to amount to the denial
of a fair trial [and] absent the alleged misconduct, . . .
overwhelming evidence" existed against petitioner); Bradley v.
Meachum, 918 F.2d 338, 343 (2d Cir. 1990) ("clear evidence of
guilt demonstrates that [petitioner] was not prejudiced by the
prosecutor's" misconduct), cert. denied, 501 U.S. 1221,
111 S. Ct. 2835 (1991); United States v. Parker, 903 F.2d 91, 98-99
(2d Cir.) (even where prosecutor acted improperly, no claim for
misconduct where "transgression was isolated, the trial court
took swift and clear steps to correct [improper conduct], and the
evidence against the defendant was strong"), cert. denied,
498 U.S. 872, 111 S. Ct. 196 (1990); United States v. Coffey,
823 F.2d 25, 28 (2d Cir. 1987) (no constitutional violation where
alleged misconduct was isolated and not intentional, the trial
court provided curative instructions and trial evidence
demonstrated defendant's guilt); United States v. Modica,
663 F.2d 1173, 1181 (2d Cir. 1981) (per curiam) ("the existence of
substantial prejudice turns upon the strength of the government's
case: if proof of guilt is strong, then the prejudicial effect of the [misconduct] tends to be deemed insubstantial
. . ."), cert. denied, 456 U.S. 989, 102 S. Ct. 2269 (1982);
James v. Artus, 2005 WL 859245 at *12.*fn29
Here, Martinez identified Roman both outside a crowded train
station on April 10, 2002 and during the trial. (Tr. 113, 285;
see pages 14, 17 above.) Moreover, the trial court issued a
curative instruction directing the jury not to fault attorneys
for making arguments on behalf of their clients. (Tr. 540-41,
545.) The jury is presumed to obey a court's curative
instruction. See, e.g., Greer v. Miller, 483 U.S. 756,
767 n. 8, 107 S. Ct. 3102, 3109 n. 8 (1987) ("We normally presume
that a jury will follow an instruction to disregard inadmissible
evidence . . ., unless there is an `overwhelming probability'
that the jury will be unable to follow the court's
instructions."); Richardson v. Marsh, 481 U.S. 200, 211,
107 S. Ct. 1702, 1709 (1987) ("juries are presumed to follow their
instructions"); Shotwell Mfg. Co. v. United States,
371 U.S. 341, 367, 83 S. Ct. 488, 463 (1962) (When a limiting instruction
is clear, "[i]t must be presumed that the jury conscientiously observed it.").*fn30 Finally, the attack on defense counsel
consisted of a single comment within the context of a summation
spanning twenty-nine pages. In this context, the trial court
reasonably concluded the statement was unlikely to have
prejudiced the jury to an extent requiring a mistrial. See,
e.g., People v. Robinson, 16 A.D.3d 768, 790, N.Y.S.2d 586,
588-89 (3d Dep't 2005) (Prosecutor's improper statements during
summation, including denigration of defense counsel, is not
grounds for reversal where "it did not rise to the flagrant and
pervasive level of misconduct which would deprive defendant of
due process."); People v. Wright, 269 A.D.2d 831, 831,
703 N.Y.S.2d 782, 782 (4th Dep't) ("Although we agree that the
prosecutor improperly impugned the defense, those comments did
not constitute `a pervasive pattern of misconduct sufficient to
deny defendant due process of law.'"), appeal denied,
94 N.Y.2d 950, 710 N.Y.S.2d 7 (2000).
The prosecutor's second improper statement, a single reference
to Detective Davis' stricken testimony that Martinez must have
been "bold" to pursue her attacker, also constitutes harmless
error. (See Pet. at p. 18.) See, e.g., People v. Cain,
16 A.D.3d 288, 288, 792 N.Y.S.2d 60, 61 (1st Dep't 2005) ("The
prosecutor's brief and isolated summation reference to testimony
that had been stricken from the record does not warrant
reversal."); People v. Simpson, 262 A.D.2d 177, 178, 692 N.Y.S.2d 525, 526 (1st Dep't) (references to stricken
testimony do not warrant reversal absent a pattern of improper or
inflammatory language during summation), appeal denied,
94 N.Y.2d 829, 702 N.Y.S.2d 600 (1999). Defense counsel failed to
object to the remark during summation and the trial court later
reasonably found it not prejudicial. (Tr. 532). See People v.
LaValle, 3 N.Y.3d 88, 116, 783 N.Y.S.2d 485, 500 (2004) (citing
People v. Cahill, 2 N.Y.3d 14, 14 & n. 45, 777 N.Y.S.2d 332,
365 & n. 45 (2003) (prosecutor's references to victim's beauty
and courage during summation did not provide grounds for
reversal)). Further, the trial judge issued a curative charge,
instructing the jury to disregard any arguments based on stricken
testimony. (Tr. 548-49.) Again, considering the isolated nature
of the remark, the trial judge's corrective jury instruction, and
the strength of the evidence supporting the jury's verdict, this
Court cannot say that the First Department's decision was
erroneous, much less find error under the AEDPA review
For the foregoing reasons, Roman's prosecutorial misconduct
during summation claim should be denied. III. ROMAN'S CLAIM OF PROSECUTORIAL MISCONDUCT DURING VOIR
DIRE IS PROCEDURALLY BARRED FROM FEDERAL HABEAS REVIEW BECAUSE
IT WAS DENIED ON ADEQUATE AND INDEPENDENT STATE LAW GROUNDS
Roman claims the prosecution prejudiced the jurors with
demonstrations and hypothetical questions posed during voir dire.
(Dkt. No. 1: Pet. at pp. 4-6.) Specifically, he claims the
prosecutor appealed to the fears and sympathies of the jury by
improperly asking them to think of themselves as crime victims
while gauging their general attitudes towards the accuracy of
eyewitness identifications. (Id.)
A. Adequate and Independent State Ground Doctrine*fn32
The Supreme Court has made clear that the "adequate and
independent state ground doctrine applies on federal habeas,"
such that "an adequate and independent finding of procedural
default will bar federal habeas review of the federal claim,
unless the habeas petitioner 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 v.
Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989)
(citations & internal quotations omitted).*fn33
"[I]n order to preclude federal review [under the adequate and
independent doctrine], the last state court to render judgment
must `clearly and expressly state ? that its judgment rest[ed]
on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415
(quoting Glenn v. Bartlett, 98 F.3d at 724). The Second
Circuit has made clear that "federal habeas review is foreclosed
when a state court has expressly relied on a procedural default
as an independent and adequate state ground, even where the state
court has also ruled in the alternative on the merits of the
federal claim." Velasquez v. Leonardo, 898 F.2d at 9;
accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10,
109 S. Ct. at 1044 n. 10 ("[A] state court need not fear reaching the
merits of a federal claim in an alternative holding. By its very
definition, the adequate and independent state ground doctrine
requires the federal court to honor a state holding that is a
sufficient basis for the state court's judgment, even when the
state court also relies on federal law.").*fn34 Thus, "as
long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and
independent doctrine "curtails reconsideration of the federal
issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n.
10, 109 S. Ct. at 1044 n. 10.
B. Roman's Claim Of Prosecutorial Misconduct During Voir
Dire is Procedurally Barred
After addressing certain of Roman's appeal claims, the First
Department held that "[d]efendant's remaining contentions are
unpreserved and we decline to review them in the interest of
justice." People v. Roman, 5 A.D.3d 311, 312,
773 N.Y.S.2d 551, 552 (1st Dept 2004) (quoted more fully at page 29 above).
These "remaining contentions" include Roman's voir dire claim
since it was not otherwise specifically addressed by the First
State courts are not required to use any particular language:
We encourage state courts to express plainly, in
every decision potentially subject to federal review,
the grounds upon which their judgments rest, but we
will not impose on state courts the responsibility
for using particular language in every case in which
a state prisoner presents a federal claim every
state appeal, every denial of state collateral review
in order that federal courts might not be bothered
with reviewing state law and the record in the case.
Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559
Furthermore, unlike the situation where the state court holds
that claims were either unpreserved or without merit, which the
Second Circuit has found is usually too ambiguous to preclude habeas review,*fn35 here the First Department
explicitly stated that it found all of Roman's claims not
specifically addressed to be "unpreserved," 5 A.D.3d at 312,
773 N.Y.S.2d at 552, and the fact that the First Department also
stated the conclusion it would reach on the merits "[w]ere [it]
to review these claims," id., does not change the result.
See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804,
810-11 & n. 4 (2d Cir. 2000) ("where a state court says that a
claim is `not preserved for appellate review' and then ruled `in
any event' on the merits, such a claim is not preserved");
Glenn v. Bartlett, 98 F.3d at 724-25 & n. 3 (state decision
which denied prosecutorial misconduct claim as not preserved for
appellate review represented an independent and adequate state
procedural ground even though court addressed merits of claim "in
the interests of justice"); Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as
procedurally barred but then alternatively addressed meritsrested
on adequate and independent state grounds); Yapor v. Mazzuca,
04 Civ. 7966, 2005 WL 894918 at *22 (S.D.N.Y. Apr. 19, 2005)
(Peck, M.J.) (declining to review challenge to jury instruction
when state court ruled the claim was unpreserved); James v.
Ricks, No. 01 CV 4106, 2003 WL 21142989 at *12 & n. 8 (E.D.N.Y.
Mar. 6, 2003) (state decision which "found the petitioner's
ineffective assistance of counsel claim was procedurally barred
and without merit" rested on adequate and independent state
grounds.); Campos v. Portuondo, 193 F. Supp. 2d 735, 744 n. 4
(S.D.N.Y. 2002) ("The language used by the Appellate Division in
Campos' case is in contrast with the language used in those cases where the state court found
a claim to be `either meritless or unpreserved.' Unlike the
conjunctive `and,' the use of the disjunctive `or' in such cases
obviously does not clarify whether the court's ruling rests on a
procedural bar."), aff'd, 320 F.3d 185 (2d Cir.), cert.
denied, 540 U.S. 958, 124 S. Ct. 415 (2003); Jones v.
Duncan, 162 F. Supp. 2d 204, 211 (S.D.N.Y. 2001) (Peck, M.J.)
("The First Department's use of the conjunctive `and' rather than
the disjunctive `or' clearly shows that the First Department
found these claims to be unpreserved.").*fn36 Thus, the First Department's decision here unambiguously rested
on a state procedural ground.*fn37
Under New York Law, "[a]s a general rule points which were not
raised at trial may not be considered for the first time on
appeal." People v. Thomas, 50 N.Y.2d 467, 471,
429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn38 In order to
preserve his prosecutorial misconduct during voir dire claim for
appellate review, Roman was required to object at the time of the
voir dire. See, e.g., C.P.L. § 470.05(2); People v.
Wright, 5 A.D.3d 873, 875, 773 N.Y.S.2d 486, 490 (1st Dep't)
(prosecutor's remarks during voir dire were unpreserved for
appellate review when defense counsel did not object), appeal
denied, 3 N.Y.3d 651, 782 N.Y.S.2d 422 (2004); People v.
Koury, 268 A.D.2d 896, 898, 701 N.Y.S.2d 749, 752 (3d Dep't)
(failure to object during voir dire renders the issue
"unpreserved for appellate review"), appeal denied,
94 N.Y.2d 949, 710 N.Y.S.2d 6 (2000); People v. Sedney, 254 A.D.2d 376,
376, 678 N.Y.S.2d 534, 534 (2d Dep't 1998) ("The defendant's current contentions with respect to . . . voir dire are
unpreserved for appellate review. The defendant did not object
during jury selection . . ."), appeal denied, 92 N.Y.2d 1053,
685 N.Y.S.2d 432 (1999); People v. Amaro, 216 A.D.2d 172,
172-73, 629 N.Y.S.2d 208, 209 (1st Dep't) ("Defendant's claim
that he was deprived of a fair trial by the court's restrictions
on his questioning of prospective jurors about their attitudes
toward police officers . . . is unpreserved for appellate review
as a matter of law, no objection having been made to the manner
in which the court conducted the voir die. . . ."), appeal
denied, 87 N.Y.2d 843, 638 N.Y.S.2d 602 (1995); see also,
e.g., Lora v. West, 04 Civ. 1902, 2005 WL 372295 at *11
(S.D.N.Y. Feb. 17, 2005); Yapor v. Mazzuca, 2005 WL 894918 at
*22; Larrea v. Bennett, 2002 WL 1172564 at *9; Lugo v.
Kuhlmann, 68 F. Supp. 2d 347, 372-73 (S.D.N.Y. 1999)
(Patterson, D.J. & Peck, M.J.); Liner v. Keane, 1996 WL 33990
at *7; People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908,
909 (1990); People v. Jackson, 76 N.Y.2d 908, 99,
563 N.Y.S.2d 42, 43 (1990); People v. Cadorette, 56 N.Y.2d 1007,
1009, 453 N.Y.S.2d 638, 638 (1982). Defense counsel never once
objected during the prosecution's demonstrations and questions to
the jury. (Voir Dire 2: Tr. 92-93, 95-100; Voir Dire 3: Tr. 118,
182-85; see pages 2-10 above.)
Failure to object at trial (including during voir dire) when
required by New York's contemporaneous objection rule, C.P.L. §
470.05, is an adequate and independent state ground for the
purposes of habeas review. E.g., Lora v. West, 2005 WL
372295 at *10 (defense's failure to object during voir dire bars
habeas review when First Department ruled the issue was
unpreserved); Francis v. Duncan, 03 Civ. 4959, 2004 WL
1878796 at *14 (S.D.N.Y. 2004) (petitioner's voir dire challenge
found by First Department to be unpreserved, providing an
independent and adequate state ground precluding habeas review);
see, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90,
97 S. Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an
adequate and independent state ground); Murray v. Carrier,
477 U.S. at 485-92, 497, 106 S. Ct. at 2644-48, 2650 (same);
Franco v. Walsh, No. 02-2377, 73 Fed. Appx. 517, 518, 2003 WL
22056234 at *2 (2d Cir. Sept. 4, 2003) (finding petitioner's
claim of an erroneous jury charge procedurally defaulted because
"[n]o contemporaneous objection to the charge was lodged, and the
Appellate Division found that the issue was therefore
unpreserved."); Garcia v. Lewis, 188 F.3d at 79 ("we have
observed and deferred to New York's consistent application of its
contemporaneous objection rules") (citing Bossett v. Walker,
41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's
application of C.P.L. § 470.05(2) as adequate bar to federal
habeas review), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436
(1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.)
(noting that failure to object at trial constitutes adequate
procedural default under C.P.L. § 470.05(2)), cert. denied,
502 U.S. 883, 112 S. Ct. 236 (1991)); Glenn v. Bartlett,
98 F.3d at 724-25 (failure to object constituted adequate and independent
state ground); Velasquez v. Leonardo, 898 F.2d at 9
(violation of New York's contemporaneous objection rule is an
adequate and independent state ground).*fn39 Because there is an adequate and independent finding by the
First Department that Roman procedurally defaulted on his
prosecutorial misconduct during voir dire claim, Roman would have
to show in his habeas petition "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." Coleman v. Thompson,
501 U.S. at 750, 111 S. Ct. at 2565.*fn40 Roman does not allege
cause, prejudice or a fundamental miscarriage of justice. Thus,
Roman's claim of prosecutorial misconduct during voir dire is
procedurally barred, and this Court need not, and will not, reach
the merits of this claim.
IV. ROMAN'S CLAIM THAT THE TRIAL COURT ERRONEOUSLY ADMITTED
HEARSAY EVIDENCE DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF
Roman claims he was denied a fair trial because the trial court
improperly admitted two pieces of hearsay evidence: (1) testimony
from a police detective about Martinez's description of Roman;
and (2) a 911 call placed by a city marshal. (Dkt. No. 1: Pet. ¶
12(b), at pp. 12-16.)*fn41 A. The Habeas Corpus Review Standard for Claims of Error in
State Evidentiary Rulings*fn42
"In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) ("We have stated many times
that `federal habeas corpus relief does not lie for errors of state law.'").*fn43 Thus,
a habeas petitioner must demonstrate that the allegedly-erroneous
state court evidentiary rulings violated an identifiable
constitutional right. See, e.g., Rosario v. Kuhlman,
839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine
whether the exclusion [of testimony] was an error of
constitutional dimension. . . ."); Taylor v. Curry,
708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary
rulings do not automatically rise to the level of constitutional
error sufficient to warrant issuance of a writ of habeas corpus.
Rather, the writ would issue only where petitioner can show
that the error deprived her of a fundamentally fair trial.")
(emphasis in original), cert. denied, 464 U.S. 1000,
104 S. Ct. 503 (1983); see also, e.g., Vega v. Portuondo, No.
03-2856, 120 Fed. Appx. 380, 382, 2005 WL 78786 at *1 (2d Cir.
Jan. 10, 2005) ("Even assuming, for the sake of argument, that
petitioner is correct to assert that admission of [the evidence]
was erroneous as a matter of [state] law, this alone would not
suffice to merit federal habeas relief. . . . `The introduction
of unfairly prejudicial evidence against a defendant in a
criminal trial . . . does not amount to a violation of due
process unless the evidence is so extremely unfair that its
admission violates fundamental conceptions of justice.'")
(citations omitted). That is a "heavy burden, for `generally,
rulings by state trial courts on evidentiary issues, even if
erroneous, do not rise to the level of a constitutional
violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).*fn44
The first step in this analysis is to determine whether the
state court decision violated a state evidentiary rule, because
the proper application of a presumptively constitutional state
evidentiary rule could not be unconstitutional.*fn45 See,
e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6,
9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an
error under state evidentiary law, "much less" an error of
constitutional magnitude); Jones v. Stinson,
94 F. Supp. 2d at 391-92 (once the habeas court has found that the state court
ruling was not erroneous under state law, there is no need to
apply a constitutional analysis).*fn46 Second, the petitioner must allege that the state evidentiary
error violated an identifiable constitutional right. This
necessarily eliminates consideration of purelystate evidentiary
errors not cognizable in the federal system.*fn47 Here,
Roman asserts that his due process rights and right to a fair
trial were violated by the state court's evidentiary rulings.
(Pet. ¶ 12(b), pp. 12-16.) Third, an erroneous state evidentiary ruling that is asserted
to be a constitutional violation will merit habeas relief only
"`where [the] petitioner can show that the error deprived [him]
of a fundamentally fair trial.'" Rosario v. Kuhlman,
839 F.2d at 925 (emphasis in original).*fn48 The test for
"fundamental fairness" is whether the excluded evidence,
"`evaluated in the context of the entire record,'"*fn49
"`create[d] a reasonable doubt [regarding petitioner's guilt]
that did not otherwise exist.'" Taylor v. Curry,
708 F.2d at 891 (quoting the materiality standard defined in United States
v. Agurs, 427 U.S. at 112-13, 96 S. Ct. at 2401-02).*fn50
The "fundamental fairness" standard applies to the erroneous
exclusion or admission of evidence. See, e.g., Dunnigan v.
Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due
process, the item must have been `sufficiently material to
provide the basis for conviction or to remove a reasonable doubt
that would have existed on the record without it.'") (quoting
Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe,
No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir.
Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068
(1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v.
Artuz, 78 F. Supp. 2d at 276.*fn51
The final question is how to apply the AEDPA in the context of
a fundamental fairness analysis, an issue addressed by the Second
Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones,
the state appellate court decided that the trial court's
evidentiary rulings had not denied the defendant a fair trial.
Id. at 116. The Second Circuit held that, although it might
have found, under the Agurs standard, that one of the trial
court's rulings "create[d] a reasonable doubt that did not
otherwise exist," the Second Circuit could not conclude that the
excluded testimony "would so certainly have created new ground
for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively
unreasonable." Id. at 120. The Second Circuit thus denied
habeas relief based on the AEDPA's deferential review standard.
Id. at 120-21.
In sum, for Roman to succeed with his federal habeas corpus
petition asserting state evidentiary errors, he must establish
(1) that the trial court's evidentiary rulings were erroneous as
a matter of state law, (2) under Agurs, that
admission/exclusion of evidence deprived him of a fair trial, and
(3) under the AEDPA, that the state court's ruling constituted an
objectively unreasonable application of the Agurs standard.
B. Application of the Standard to Detective Davis's
The trial court permitted Detective Davis to testify about
Martinez's description of her assailant when she was interviewed
by him at the hospital (Tr. 347-48), under the hearsay exception
established in People v. Huertas, 75 N.Y.2d 487, 493,
554 N.Y.S.2d 444, 448 (1990). Huertas permitted the complainant
herself to testify to a description of her assailant, since
identity was contested by the defense, explaining that "evidence
that assists the jury in evaluating the witness's opportunity to
observe at the time of the crime, and the reliability of her
memory at the time of the corporeal identification . . . was
properly admitted for this nonhearsay purpose." 75 N.Y.2d at 493,
554 N.Y.S.2d at 448. Subsequent cases have extended the Huertas
rule to other persons who testify in support of the complainant's
accurate identification. See, e.g., People v. Ayala,
298 A.D.2d 397, 398, 751 N.Y.S.2d 223, 224 (2d Dep' t) ("The police
officers' testimony recounting descriptions of the perpetrator
given to them by eyewitnesses to the murder was properly admitted
because it was for a nonhearsay purpose. It was admitted to
assist the jury in evaluating the witnesses' respective opportunities to observe at
the time of the crime, and the reliability of their memories at
the time of the identification.") (citing Huertas), appeal
denied, 99 N.Y.2d 555, 754 N.Y.S.2d 206 (2002); People v.
Gonzalez, 298 A.D.2d 133, 134, 747 N.Y.S.2d 761, 762 (1st Dep't
2002) (testimony about police radio conversations recounting
undercover detective's radio communications admissible to support
the accuracy of his challenged description of defendant), appeal
denied, 99 N.Y.2d 614, 757 N.Y.S.2d 825 (2003); People v.
Read, 228 A.D.2d 304, 305, 644 N.Y.S.2d 201, 202 (1st Dep't)
("The fact that the victim's description of defendant was
elicited from the officer and not from the victim does not affect
its admissibility because the purpose of description testimony is
to afford a basis for assessing the credibility of an
identification."), appeal denied, 88 N.Y.2d 1071,
651 N.Y.S.2d 415 (1996); People v. Messier, 191 A.D.2d 819, 821,
594 N.Y.S.2d 453, 455-56 (3d Dep't) (police sergeant's testimony
about assault victim's initial description of assailant
permissible to assist jury in evaluating the accuracy of victim's
identification), appeal denied, 81 N.Y.2d 1017,
600 N.Y.S.2d 205 (1993).
Evidence properly admitted under the Huertas exception does
not support a federal habeas claim. See Huber v. Schriver,
140 F. Supp. 2d 265, 279 (E.D.N.Y. 2001) (rejecting hearsay claim
in habeas petition when victim's initial description of assailant
given to police was admitted under Huertas).
At trial, Roman relied extensively on a theory of mistaken
identity (Tr. 476) and repeatedly challenged the accuracy of
Martinez's identification (see, e.g., Tr. 477, 479-89, 491,
494-95). "In a case like this one where identification is the only
contested issue[,] . . . [a c]omparison of the verbal description
. . . with the actual features of the person later corporeally
identified can assist the jury in evaluating the degree to which
the later physical identification may or may not have been the
product of intervening memory failure or suggestion." People v.
Huertas, 75 N.Y.2d at 492-93, 554 N.Y.S.2d at 447. Roman claims
Huertas applies only to descriptions given immediately after
the crime and not to situations where multiple witnesses offer
testimony about the veracity of an eyewitness account. (Pet. at
p. 13.) The First Department has not limited the Huertas
exception in such a manner. See, e.g., People v. Ayala,
298 A.D.2d 397, 398, 751 N.Y.S.2d 223, 224 (2d Dep't 2002) ("The
police officers' testimony recounting descriptions of the
perpetrator given to them by eyewitnesses . . . was properly
admitted because it was for a non-hearsay purpose. It was
admitted to assist the jury in evaluating the witnesses'
respective opportunities to observe at the time of the crime, and
the reliability of their memories at the time of the
identification."); People v. Griffin, 173 A.D.2d 216, 216,
569 N.Y.S.2d 97, 98 (1st Dep't) (testimonial reference by both
the victim and a detective to victim's "fuller" description of
her assailant given "several hours after the crime" is admissible
under Huertas, even when earlier description was testified to),
appeal denied, 78 N.Y.2d 1076, 577 N.Y.S.2d 239 (1991).
Martinez gave a description of Roman to Detective Davis at the
hospital less than two hours after the assault, and the trial
judge acted within his discretion in ruling that the description
was "given shortly after the crime." (Tr. 347-48.) Furthermore,
as the trial court noted, the conflicting accounts regarding the
accuracy of Martinez's identification raised the very question of
fact that Detective Davis's testimony was admitted to help
resolve. (Id.) Moreover, the trial court specifically instructed the jury that
Detective Davis' testimony "was permitted for a limited purpose
[of] evaluating whether Martinez had the capacity to observe her
assailant and remember the physical characteristics of her
assailant." (Tr. 370-71.) Limiting instructions have been found
to militate against a finding of constitutional error. See,
e.g., Yapor v. Mazzuca, 2005 WL 894918 at * 15 (trial
judge's instruction that jury consider testimony only for a
narrow purpose reduces risk of prejudice); Peakes v. Spitzer,
04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16,
2004) ("The jury is presumed to obey a court's curative
instruction."); Green v. Herbert, 01 Civ. 11881, 2002 WL
1587133 at *16 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (admission
of prior crimes evidence did not deprive petitioner of a fair
trial in light of, inter alia, judge's limiting instructions);
Kanani v. Phillips, 2004 WL 2296128 at *19 (denying
petitioner's habeas petition where "trial judge gave a very
specific limiting charge to the jury to ensure that jurors
considered information about the uncharged crimes only for
appropriate purposes, and not on [petitioner's] guilt or
innocence of the crimes charged in the indictment."); Cruz v.
Greiner, 98 Civ. 7839, 1999 WL 1043961 at *31 & n. 26 (S.D.N.Y.
Nov. 17, 1999) (Peck, M.J.) (rejecting petitioner's argument that
"if you throw a skunk into the jury box, you can't instruct the
jury not to smell it" and finding that the court's instruction to
disregard inadmissible evidence rendered harmless any
prosecutorial misconduct) (& cases cited therein). The jury is
presumed to obey a court's curative instruction. (See cases
cited at page 48-49 above.) Finally, because Martinez testified
at trial and was extensively cross-examined by the defense,
Detective Davis' testimony at most "bolstered" her testimony, and
as noted above, bolstering claims are not cognizable on habeas
review. Because the trial judge reasonably admitted the evidence under
the Huertas exception, Roman's hearsay habeas claim about
Detective Davis' testimony should be denied.
C. Application of This Standard to the 911 Call
Roman claims a tape of a 911 call on which a city marshal
repeated Martinez's description of Roman during the April 10,
2002 pursuit constituted impermissible hearsay evidence and
deprived him of a fair trial. (Dkt. No. 1: Pet. at pp. 14-16.)
The trial judge admitted the tape as an excited utterance.
(See page 18 above.) Under New York law, an excited utterance
is admissible if "the surrounding circumstances reasonably
justify the conclusion that the remarks were not made under the
impetus of studied reflection." People v. Brown,
70 N.Y.2d 513, 519, 522 N.Y.S.2d 837, 840 (1987); see also, e.g.,
People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 702
(1996) ("`Excited utterances' are the product of the declarant's
exposure to a startling or upsetting event that is sufficiently
powerful to render the observer's normal reflective processes
inoperative."); People v. Muhammad, 13 A.D.3d 120, 121,
787 N.Y.S.2d 8, 9 (1st Dep't 2004) (excited utterance exception
requires "evidence of the agitated or stressed condition of the
declarant"), appeal denied, 4 N.Y.3d 801 (2005); People v.
Veeraswamy, 11 A.D.3d 345, 345, 784 N.Y.S.2d 488, 488 (1st
Dep't) (trial court properly admitted 911 call under excited
utterance exception when call was made "immediately after the
crime while [the caller was] still under the stress and
excitement resulting from the incident."), appeal denied,
4 N.Y.3d 749, 790 N.Y.S.2d 662 (2004).
The excited utterance hearsay exception is also firmly rooted
under federal law. See, e.g., Lilly v. Virginia,
527 U.S. 116, 126, 119 S. Ct. 1887, 1895 (1999) ("spontaneous
declarations" hearsay exception is "firmly rooted" in legal tradition); White
v. Illinois, 502 U.S. 346, 350 n. 1, 355 n. 8, 112 S. Ct. 736,
740 n. 1, 742-43 n. 8 (1992) (hearsay exception for "spontaneous
declarations" is "`firmly rooted'" and "is currently recognized
under Federal Rule of Evidence 803(2), and in nearly four-fifths
of the States," and "carries sufficient indicia of reliability to
satisfy the reliability requirement posed by the Confrontation
Clause." Exception was properly applied to testimony by witnesses
to statements made by victim one to four hours after assault.);
Brown v. Keane, 355 F.3d 82, 89-90 (2d Cir. 2004) (excited
utterance exception is firmly rooted but does not apply to
anonymous 911 call); West v. Greiner, No. 01 CV 1267, 2004 WL
315247 at *6 (E.D.N.Y. 2004) ("An excited utterance is therefore
recognized as a traditional exception to the hearsay rule under
both New York and federal law" for the purposes of habeas
Neither New York nor federal courts require that an excited
utterance occur within a specific time period after the event.
"Under New York's rule, `an excited utterance occurs . . . during
. . . a period which is not measured in minutes or seconds but
rather is measured by facts.'" Mungo v. Duncan, 393 F.3d 327,
331 (2d Cir. 2004), cert. denied, 125 S. Ct. 1936 (2005).
Rather, the utterance must simply occur "in a moment of
excitement without the opportunity to reflect on the
consequences of one's exclamation." White v. Illinois,
502 U.S. at 356, 112 S. Ct. at 742. A statement meeting the
requirements for an excited utterance may occur even hours after
the startling event. See e.g. People v. Brown,
70 N.Y.2d at 521, 522 N.Y.S.2d at 841 ("[a] lapse of 30 minutes, is not, as
a matter of law, too long" for the excited utterance exception to
apply); People v. Hasan, 2005 WL 845378 at *2 (2d Dep't Apr.
11, 2005) (statement made 10 minutes after incident was an
excited utterance within the exception); People v. Hiraldo,
284 A.D.2d 258, 258, 726 N.Y.S.2d 558, 558 (1st Dep't) (excited utterance exception applies to statement
made while victim was being treated at the hospital), appeal
denied, 96 N.Y.2d 919, 732 N.Y.S.2d 636 (2001); see also,
e.g., White v. Illinois, 502 U.S. a 349-50,
112 S. Ct. at 739 (statements by victim to police 45 minutes after sexual
assault and to medical personnel at hospital four hours after
assault held to be excited utterances); United States v.
Tocco, 135 F.3d 116, 127-28 (2d Cir. 1998) (record "amply
supports" admission of a statement made three hours after an
arson when the defendant was still "`all hyped' and `nervous.'");
United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990)
(statement made after delay of five to six hours is an excited
utterance when witness is still under "the stress of
Here, Roman contends that the 911 call is inadmissible because
too much time passed between Martinez's initial recognition of
Roman and the call. (Pet. at p. 15.) Although the record does not
establish the precise amount of time elapsed between Martinez's
recognition of Roman and the 911 call, at the time of the call
Martinez was still actively pursuing a man who had recently
assaulted her. (See page 18 above.)*fn52 Furthermore, her
testimony amply supports the trial judge's determination that she
was in an excited state at the time the call was made: Martinez
testified she was crying during the pursuit (Tr. 117), and the
city marshals attempted to get her to relax after making the call
(Tr. 122). Roman's additional claim that the tape is inadmissible
because Martinez "didn't panic" (Pet. at 15) is likewise without merit. When trial
testimony and the established circumstances reasonably support
the conclusion the statements were made in an excited state, a
specific condition of panic or fear is not required by any New
York or federal case law.
Because the state level judge properly admitted the 911 tape
under the state law hearsay exception for excited utterances and
Roman raises no independent constitutional challenge, Roman's
habeas claim of improper admission of hearsay should be
IV. ROMAN'S WEIGHT OF THE EVIDENCE CLAIM SHOULD BE DENIED
A. A Weight Of The Evidence Claim Is Not Cognizable On
A challenge to a verdict based on the weight of the evidence
differs from one based on the sufficiency of the evidence: "[T]he
`weight of the evidence' argument is a pure state law claim
grounded in New York Criminal Procedure Law § 470.15(5), whereas
a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner,
01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002)
(citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761
It is well-settled that a weight of the evidence claim is not
cognizable on federal habeas review. E.g., Young v. Kemp,
760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has
no power to grant habeas corpus relief because it finds that the
state conviction is against the `weight' of the evidence . . ."),
cert. denied, 476 U.S. 1123, 106 S. Ct. 1991 (1986); Ex parte
Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus
cannot be used to review the weight of evidence . . ."), aff'd,
263 U.S. 255, 44 S. Ct. 103 (1923); Garbez v. Greiner, 2002
WL 1760960 at *8 ("by raising a `weight of the evidence'
argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead,
[petitioner] raises an error of state law, which is not available
for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366,
2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no
authority to review a weight of the evidence argument because it
is a state law claim."); McBride v. Senkowski, 98 Civ. 8663,
2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of
evidence is not cognizable on habeas review); Correa v.
Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) ("`weight of
the evidence' argument is a pure state law claim grounded in New
York Criminal Procedure Law § 470.15(5), whereas a legal
sufficiency claim is based on federal due process principles.
Accordingly, the Court is precluded from considering the [weight
of the evidence] claim.") (citations omitted); Peralta v.
Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16,
2001) (Petitioner "raises only the state law issue of whether the
weight of the evidence supported his conviction. Because
[petitioner] raises no cognizable federal issue, his petition
must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL
1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury
verdict about the weight of the evidence is not grounds for
federal habeas corpus relief."); Rodriguez v. O'Keefe, 96
Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A
claim that the verdict was against the weight of the evidence is
not cognizable on habeas review."), aff'd, No. 96-2699,
122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied,
522 U.S. 1123, 118 S. Ct. 1068 (1998); see also, e.g.,
Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996)
(dismissing habeas claim; "assessments 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, Roman's weight of the evidence habeas claim should
be denied. B. The Evidence Was Sufficient To Convict Roman of First
1. Legal Principles Governing Sufficiency of the Evidence
"`[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction `except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.'" Jackson v.
Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787 (1979)
(quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073
(1970)). However, "a properly instructed jury may occasionally
convict even when it can be said that no rational trier of fact
could find guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. Accordingly, "in
a challenge to a state criminal conviction brought under
28 U.S.C. § 2254 if the settled procedural prerequisites for such
a claim have otherwise been satisfied the applicant is entitled
to habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.*fn57
Petitioner Roman bears a very heavy burden:
[T]he standard for appellate review of an
insufficiency claim placed a "very heavy burden" on
the appellant. Our inquiry is whether the jury,
drawing reasonable inferences from the evidence, may
fairly and logically have concluded that the
defendant was guilty beyond a reasonable doubt. In
making this determination, we must view the evidence
in the light most favorable to the government, and
construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.)
(citations omitted), cert. denied, 462 U.S. 1108,
103 S. Ct. 2456, 2457 (1983).*fn58
The habeas court's review of the jury's findings is limited: [T]his inquiry does not require a court to "ask
itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt."
Instead, the relevant question is whether, 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. This familiar standard gives full
play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2789
The Jackson v. Virginia "standard must be applied with
explicit reference to the substantive elements of the criminal
offense as defined by state law." Jackson v. Virginia,
443 U.S. at 324 n. 16, 99 S. Ct. at 2792 n. 16; accord, e.g.,
Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In
considering a petition for a writ of habeas corpus based on
insufficient evidence to support a criminal conviction in the
state courts, a federal court must look to state law to determine
the elements of the crime.").
2. Application of the Standard to Roman's Claim
Roman argues the verdict should be reversed because "[t]he only
evidence offered was that of a single unreliable witness, who
gave inconsistent descriptions that did not match [Roman's]
appearance." (Dkt. No. 1: Pet. at p. 16.) Roman's argument is
The jury chose to credit Martinez's testimony and convicted
Roman of robbing her. "[T]he jury is exclusively responsible for
determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman,
870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109,
109 S. Ct. 3164 (1989)).*fn60
This Court may not reassess the jury's finding of credibility:
"`[f]ederal habeas courts are not free to reassess the fact
specific credibility judgments by juries or to weigh conflicting
testimony. On collateral review this Court must presume that the
jury resolved any questions of credibility in favor of the
prosecution.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284
(S.D.N.Y. 1996) (Peck, M.J.) (quoting Anderson v. Senkowski,
No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. Sept. 3, 1992),
aff'd mem., 992 F.2d 320 (2d Cir. 1993)).*fn61
Here, as in prior cases, "the jury's decision was largely a
matter of choosing whether to believe [the defense's] version of
the events or to believe the version offered by the State. The
jury chose to believe the State's witnesses . . . We cannot say
that no rational jury could have found guilt beyond a reasonable
doubt on all the evidence." Gruttola v. Hammock,
639 F.2d 922, 928 (2d Cir. 1981). The fact that Martinez was the only
eyewitness and her testimony was the primary evidence against
Roman, and/or that there may have been some inconsistencies
between Martinez's testimony and her prior statements, does not change the result.
See, e.g., Gruttola v. Hammock, 639 F.2d at 928
(rejecting insufficiency claim, holding that jury was entitled to
believe prosecution witnesses despite inconsistencies in their
testimony); United States v. Danzey, 594 F.2d 905, 916 (2d
Cir.), cert. denied, 441 U.S. 951, 99 S. Ct. 2179 (1979)
("[T]he testimony of a single, uncorroborated eyewitness is
generally sufficient to support a conviction."); Edwards v.
Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[T]his was `not a
case in which the sole witness was uncertain of his
identification . . . [n]or is it one of testimony incredible as a
matter of law.'"); Means v. Barkley, 98 Civ. 7603, 2000 WL
5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single
uncorroborated witness is sufficient to achieve a showing of
guilt beyond a reasonable doubt . . . even if that witness's
testimony is less than entirely consistent. . . . The alleged
inconsistencies in Mendez's description of Means's earring and
facial hair are insufficient to undermine Mendez's
testimony.").*fn62 Finally, the Court notes that the AEDPA has further limited
this Court's role in determining sufficiency of the evidence
habeas petitions. (See Point I above.) This Court cannot say
that the First Department's decision that the evidence was
sufficient to convict Roman of robbery was contrary to
established federal law or was based on an unreasonable
determination of the facts.*fn63
Roman's insufficient evidence habeas claim should be denied.
For the reasons discussed above, Roman's habeas petition should
be denied and a certificate of appealability should not issue.
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 the Court, with courtesy copies delivered
to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street,
Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any
requests for an extension of time for filing objections must be
directed to Judge Wood. Failure to file objections will result in
a waiver of those objections for purposes of appeal. Thomas v.
Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert.
denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038,
113 S. Ct. 825 (1992); Small v. Secretary of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e).