The opinion of the court was delivered by: John G. Koeltl, District Judge
New York State prisoner William Ashley ("the petitioner") brings this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner's first trial in New York State Supreme Court, Bronx County, resulted in a hung jury. On March 21, 2002, after a second jury trial, a judgment of conviction was entered convicting the petitioner on one count of murder in the second degree and one count of criminal possession of a weapon in the second degree, for which he was sentenced to concurrent prison terms of 25 years to life and 15 years. The petitioner challenges his conviction on two grounds. First, the petitioner alleges that the trial court violated his privilege against self-incrimination and his due process rights when it improperly permitted the prosecution to introduce his abandoned alibi notice into evidence, discrediting the testimony of a defense witness who unexpectedly created an inconsistent alibi for the petitioner during cross-examination. Second, the petitioner alleges that the trial court's rulings regarding the summation arguments and the jury charge violated his due process right to a fair trial by implying that the jury may not draw inferences favorable to the petitioner from the fact that the prosecution called only one of several eyewitnesses to testify. For the reasons that follow, the petition for habeas corpus is denied.
The evidence at trial established that Anthony Mario Chiles was shot and killed in the street in front of 1466 College Avenue, in Bronx County, New York on the evening of June 27, 1999. At trial, the prosecution presented an eyewitness, Ronnical Green ("Green"), who operated a home for recovering drug addicts at 1468 College Avenue next door to 1466 College Avenue, where the petitioner's mother lived and where Mr. Green had seen the petitioner "all the time." (Trial Tr. ("Tr.") 77.) Green testified that although he generally had a friendly relationship with the residents of 1466 College Avenue, he and the petitioner argued on the morning of June 27. (Tr. 66--67, 146--48.)
Green testified that he returned to 1468 College Avenue later that evening, and stood on the sidewalk in front of his home talking with two people who knew the petitioner. (Tr. 99-- 105.) He stated that the petitioner "paced" in the street nearby and then approached, firing a series of shots from a small silver gun in the direction where Green was standing with his friend Chiles. (Tr. 103, 108--123.) Green testified that he fell behind a car and was himself unharmed, but that his friend Chiles fell to the ground in the street and screamed, "He shot me in my heart!" (Tr. 113--116.) The victim's wife, Shyrlene Chiles, and son were also standing in the street at the time of the shooting and took the victim to the hospital. (Tr. 110, 126.) Green testified that he later talked to the police, said that he had "seen the incident," and described the shooter. (Tr. 169--74.)
In addition to other evidence, the prosecution presented flight evidence in order to show the petitioner's consciousness of guilt. Melissa Hukill ("Corporal Hukill"), a corporal with the Delaware State Police, testified that on July 8, 1999 she pulled over a car driven by the petitioner in connection with a traffic violation. (Tr. 370--72.) The petitioner jumped out of the car and ran across the street but was apprehended and taken to the police station where he gave a false name. (Tr. 374--75.) The petitioner did not appear in court on the day of his traffic hearing. (Tr. 385.) Detective D'Amico, the police officer investigating the shooting, testified that although he returned to 1466 College Avenue numerous times for several months and went to Delaware to attempt to find the petitioner, he was unable to find the petitioner at any of these locations. (Tr. 444--46, 453--55.)
The defense called Samiyyah Abdul Muhaymin ("Muhaymin") as a witness for the defense for "the very narrow purpose" of raising doubts regarding the prosecution's flight evidence. (Tr. 685.) Muhaymin testified that she and the petitioner were moving to Delaware and often took trips to that state to visit friends and family, including a trip during the summer. (Tr. 638--43.) On cross-examination Muhaymin testified that although the petitioner was not with her at the time of the shooting, he had left her home "seconds" before, "to buy Pampers." (Tr. 659-- 60.)
The prosecutor then requested the trial court's permission
to introduce the petitioner's alibi notice as an informal judicial admission of a statement by the defendant inconsistent with his position at trial. (Tr. 678--79.) The notice stated that the petitioner had been "with his girlfriend . . . Tanesha Wilkerson," not Muhaymin, immediately before the shooting.*fn1 (Tr. 690.) The notice had been served on March 17, 2001, prior to the petitioner's first trial, by an attorney who no longer represented the petitioner. (Tr. 690; Br. for Def.-Appellant 19, attached to Pet. for Writ of Habeas Corpus.)
Defense counsel objected to the introduction of the alibi notice. He stated that there seemed to be a division among the state courts regarding the use of an alibi notice as evidence against a defendant. He argued that the petitioner had chosen not to present to the jury that he had been with his girlfriend immediately preceding the shooting, and that Muhaymin's testimony had never been the petitioner's intended position; rather, it had been elicited by the prosecutor on cross-examination. (Tr. 698--700.) Thus, he appealed to the court for a "less severe ruling" and requested that "since we never put forth the alibi . . . the Court  instruct the jury simply disregard it, even some language that-to suggest that it wasn't the defendant's position that he had just left her . . . ." (Tr. 707.).
The trial court denied defense counsel's request because it found that Muhyamin's testimony was to be regarded as the defendant's position regardless of whether it was elicited by the defense attorney or the prosecutor, and that it was "very significant testimony in the defendant's favor" that "should not . . . be simply left unchallenged." (Tr. 703, 705.) The court's ruling on the alibi notice became final when defense counsel was asked if he needed "time to look into it" to which he answered, "No, I mean I have made my arguments." (Tr. 721.)
Defense counsel mentioned the alibi notice in his closing argument-he stated that it was not the petitioner's position that he had been with Muhaymin seconds before the shooting and that it was possible she had lied to help him. (Tr. 811.) The prosecutor also discussed the petitioner's alibi notice during her summation, mentioning it twice briefly (Tr. 869--70; 870--73) in her sixty page closing statement. She stated that Muhaymin's testimony regarding when the petitioner left the Bronx to go to Delaware was not credible because the jury "kn[ew] she lied to help him." (Tr. 870.) The court instructed the jury that they should "decide what weight to give this exhibit, just as you do with all evidence in the case," and that the alibi notice did not "place any burden on the defense to call any particular witness or witnesses at this trial." (Tr. 896--97.)
During his summation, defense counsel also attempted to argue that the victim's wife and son, whom the prosecution did not call to testify, would have given a version of events different from that of the prosecutor's eyewitness. (Tr. 783-- 84.)
The court sustained the prosecutor's objections to these arguments, stating that they called for "speculation," and instructed defense counsel that the "[m]ost you can say is that they didn't testify at this trial . . . but you can't ask the jury to go beyond that." (Tr. 783; see also Tr. 813.) The court instructed the jury to "disregard [those] comment[s] of counsel." (Tr. 784.)
During her closing argument, the prosecutor argued that Green's testimony was reliable. The court sustained defense counsel's objections to the prosecutor's statements that when Green testified "[the petitioner's] side of the courtroom" was "packed" and that Green was "obviously scared" to testify in front of "everybody in this courtroom." (Tr. 838A.)*fn2 Defense counsel also objected to the prosecutor's statements that Green was "consistent" (Tr: 824, 845) and that he had "talked to police," had "talked to assistant district attorneys," had "testified in front of the Grand Jury," had "testified at a prior proceeding," and had "testified here at trial" (Tr. 824), and that the "only difference in his testimony is, as defense has pointed out to you, are little nitpicking details." (Tr. 824--25.) The trial court overruled defense counsel's general objections to the prosecutor's statements. (Tr. at 824, 845.)*fn3
The court instructed the jury that the petitioner was to be presumed innocent and that "the law requires the People to establish the defendant's guilt beyond a reasonable doubt." (Tr. 904--05.) The court then gave the following charge.
I also instruct you that to meet their burden of proof under the law, the People are not required to have investigated the case in any particular manner or to have presented at trial any particular kind of evidence or any particular witness or witnesses. There are no numerical witness requirements under the law.
Therefore, the absence from this trial of any particular individual or any particular kind of evidence, if you so find it absent, is not significant, if you are convinced from all the evidence that was presented, that the People have proven the defendant's guilt of the crime or crimes charged beyond a reasonable doubt.
People, therefore, under our rules of law, may endeavor to prove their case as they see fit. Subject of course, to your ultimate assessment of the sufficiency or insufficiency of the evidence, but free of speculation or conjecture on the part of the jury as to what the evidence or testimony at ...