The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
Pro se petitioner Walter Murray seeks a writ of habeas corpus from his January 24, 2003 conviction, after a jury trial in Supreme Court, New York County, of first degree robbery, and sentence, as a persistent violent felony offender, of 20 years to life imprisonment. (Dkt. No. 5: Ex. H:*fn1 Pet. ¶¶ 1-6.) Murray's habeas corpus petition asserts that: (1) "[t]he People failed to prove [Murray's] guilt beyond a reasonable doubt, where the police did not find the broken bottle that the complainant claimed [Murray] used to take [the complainant's] chain, even though the incident had just taken place and the bottle, if it existed, could only have been discarded within a two block radius" (Pet. ¶ 12(1) at 16); and (2) Murray's "due process right to a fair trial was violated by the prosecutors [sic] summation, in which he denigrated defense counsel and [Murray] by calling the defense absurd and ridiculous, improperly vouched for the complainant's credibility, characterized [Murray] as a liar, and appealed to the jury's sympathy" (Pet. ¶ 12(2) at 17).
The parties consented to decision of Murray's petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)
For the reasons set forth below, Murray's habeas petition should be DENIED.
Murray's conviction stems from his August 13, 2001 robbery, using a broken bottle as a weapon, of Mohammad Alom's gold chain. (E.g., Dkt. No. 6: 5/14/02 Trial Transcript ["Tr."] 226-28.)
Alom, his wife Jasmin Alom, and police officer Christopher Shaughnessy testified for the prosecution. (Dkt. No. 6: Alom: Tr. 235-300; Jasmin Alom: Tr. 300-07; Shaughnessy: Tr. 311-57, 366-70.) Murray testified on his own behalf during the defense case. (Murray: Tr. 370-402.)
The Prosecution Case at Trial
Alom, originally from Bangladesh, lived in the New York City area for five years and was married to Jasmin. (Dkt. No. 6: Alom: Tr. 236-37; Jasmin Alom: Tr. 302.) Alom worked the night shift at a restaurant on Houston Street in Manhattan. (Alom: Tr. 237-38, 283-84; Jasmin Alom: Tr. 304.) To go home from work, Alom took the A-train subway northbound from West 4th Street to 59th Street (because it did not stop at 42nd Street), transferred to a southbound A-train which stopped at 42nd Street, took the Shuttle train east to Grand Central Terminal, and transferred to a 6-train northbound to the Bronx. (Alom: Tr. 238-42.)
On August 13, 2001, when Alom boarded the A-train southbound at 59th Street, he sat down at the very end of the car. (Alom: Tr. 242, 262.) Alom was wearing a gold chain with his wife's name on the medallion. (Alom: Tr. 250, 255-58; Jasmin Alom: Tr. 305-07.) When Alom got on the train, he saw Murray sitting at the other end of the car, holding a bottle. (Alom: Tr. 242-45, 255, 269.)
As the subway traveled from 59th Street to 42nd Street, Murray moved closer to Alom. (Alom: Tr. 244, 245.) Alom recognized the bottle as a mango flavored Snapple, with one end broken. (Alom: Tr. 245, 252, 254.) When the train reached 42nd Street, Murray stood in front of the exit door closest to Alom and stared at Alom, which prevented Alom from getting off at 42nd Street as he planned. (Alom: Tr. 245-49, 253, 258, 265, 269-70.) Alom did not want to risk being hit or stabbed with the bottle as he passed by Murray. (Alom: Tr. 246, 248, 258, 269-70.) When the train left 42nd Street, both Alom and Murray remained inside the car, in the same positions. (Alom: Tr. 248-49.)
When the train stopped at 14th Street (Alom: Tr. 250), Murray held the broken end of the bottle toward Alom (Alom: Tr. 254, 267, 285-87), threatened to hit Alom with the bottle (Alom: Tr. 251, 286), snatched the gold chain from Alom's neck (Alom: Tr. 251, 256-57), and ran away (Alom: Tr. 251, 267). Alom ran after Murray. (Alom: Tr. 266-68, 272-73, 287-88.) Alom followed Murray out of the subway system through the 16th Street exit and continued chasing him south on 8th Avenue. (Alom: Tr. 268, 270-72.)
Police officers Christopher Shaughnessy and Sean Mulcahy saw Murray running toward them as they were driving westbound on 15th Street between 7th and 8th Avenues. (Shaughnessy: Tr. 314-15.) Officer Shaughnessy saw Murray turn frequently to look behind him and saw Alom chasing Murray. (Shaughnessy: Tr. 315-17.) Officer Mulcahy pulled the police car across the road to block Murray's path. (Shaughnessy: Tr. 318.) Alom arrived and told the police what happened, including that Murray had taken his chain and that Murray had been carrying a broken bottle. (Alom: Tr. 273-75, 289; Shaughnessy: Tr. 319-20, 333, 367-69.) Murray no longer had the broken bottle in his hand, but Alom did not know specifically where Murray discarded it. (Alom: Tr. 274, 291, 293-94, 298-99.)
The police arrested Murray and found a section of Alom's chain in Murray's pocket. (Alom: Tr. 276, 290; Shaughnessy: Tr. 320, 338.) Murray claimed it was his own chain. (Shaughnessy: Tr. 325, 338.) Alom and one of the officers searched and found a second piece of the chain, with the Jasmin medallion, in the street. (Alom: Tr. 275-77, 290-91; Shaughnessy: Tr. 321-22, 342.) The police searched for but did not find the broken bottle. (Shaughnessy: Tr. 323-26, 328, 352-53; Alom: Tr. 291.)*fn2
The Defense Case at Trial
Murray testified on his own behalf. (Dkt. No. 6: Murray: Tr. 370-402.) Murray admitted that he was convicted of three felonies involving property theft and four misdemeanors from 1988 to 2001. (Murray: Tr. 371-72, 400.) Murray also admitted giving a false name in connection with a 1992 felony investigation. (Murray: Tr. 372, 384.)
Murray claimed that on August 13, 2001, he boarded the southbound A-train at 42nd Street and saw Alom, already on the train, sleeping. (Murray: Tr. 374-75, 392, 393, 398.) Murray specifically denied being on the train at 59th Street. (Murray: Tr. 391, 401.) When the train approached 14th Street, Murray "popped" Alom's gold chain off of his neck. (Murray: Tr. 376, 392, 393, 397, 398.) Murray explained that he "grabbed [the chain] with enough pressure to take it off without waking [Alom] up." (Murray: Tr. 376.)
Murray got off the train and Alom followed. (Murray: Tr. 376, 397.) Alom asked Murray if he had seen anyone with Alom's chain, and Murray lied and said he did not have the chain. (Murray: Tr. 376.) Alom continued to follow Murray, and Murray continued to deny that he had the chain. (Murray: Tr. 377-78.) Murray saw a police car approaching and continued walking. (Murray: Tr. 379.)
The officers stopped Murray, and Alom told the police that Murray had taken his chain; when the police searched Murray, they found a section of chain in his pocket. (Murray: Tr. 379, 395, 399.) Murray admitted that he lied to the police and said that the chain belonged to him. (Murray: Tr. 379-80, 398-400.) However, Murray denied discarding the medallion section of chain on the street. (Murray: Tr. 395, 401.) Instead, Murray claimed that although he attempted to steal the whole chain, when he broke it the medallion section fell into Alom's shirt and then onto the ground. (Murray: Tr. 395-97.)
Murray testified that, while he stole Alom's chain, he never held a broken bottle nor used any other kind of weapon. (Murray: Tr. 380.)
Defense Counsel's Summation
During his closing argument, Murray's defense counsel argued that "Mr. Alom's version of what happened on August 13th[,] 2001 has been shown to be highly inaccurate and a mostly untruthful version of what happened on the A Train that evening." (Dkt. No. 6: Tr. 413.) Defense counsel argued that "what really happened that evening . . . wasn't a robbery, just a simple theft of Mr. Alom's chain" and "all the facts of this case are consistent with that version and basically nothing supports [Alom's] version that it was a robbery." (Tr. 413.)
Defense counsel asserted that Murray was telling the truth while Alom's testimony was untruthful:
[Murray] was the only one telling the truth in [the] courtroom. . . .[T]here's no greater support for the truthfulness of Walter Murray's version than the inconsistencies and lies that lie at the heart of Mohammad Alom's version. If you examine the versions of his story, you'll find that it changes every time it's told. His version of history changes, it changes to suit his purpose at the time he's telling it. And these inconsistencies show you that his version of history has no firm basis in truth. (Tr. 414.)
Defense counsel argued that inconsistencies in Alom's testimony regarding what he first told police (Tr. 414-15), his residence (Tr. 416), what part of his body he claimed Murray pointed the bottle (Tr. 417), and his claim to the grand jury that he saw Murray throw away the bottle (Tr. 418-21), all showed that Alom's version had "no firm basis in truth" (Tr. 414). Defense counsel also argued that Alom changed his testimony about seeing Murray throw away the bottle because Alom knew "the bottle never existed at all." (Tr. 421.)
Defense counsel concluded with an appeal to the jury's sense of "justice":
There's a popular singer in Canada named Bruce Cobert who sings a song called Justice. In that song after singing about the atrocities that have been done in the name of every kind of fanaticism you can think of, every kind of fanaticism that's been known to human kind, he sings everybody loves to see justice done on somebody else. That song says a lot about this case. It recognizes that justice is subjective, justice is in the eyes of the beholder.
Justice to Mohammad Alom is getting Walter Murray convicted of a crime he did not commit. But justice is not about revenge. Justice isn't about vendettas. Justice is objective and if we, as a people, stand for anything at this point in our history, it is this, that justice is about even-handedness and it's about fairness.
Justice for us is where people like Walter Murray, admitted thieves, have a right to be convicted only for the crimes they have committed and acquitted for the crime they didn't commit.
Justice for us means that just because an individual has a criminal record or because he's unpopular, he doesn't deserve to be convicted of a crime he didn't commit. (Tr. 422-23.)
Defense counsel objected eight times during the prosecutor's summation (Dkt. No. 6: Tr. 424, 425, 428, 430, 431, 438), stating a reason for only one of the objections (Tr. 430). All but one of the objections were overruled by Justice Tejada. (Tr. 424, 425, 428, 430, 431, 438.)
In responding to the defense's summation, the prosecutor accused the defense of "blam[ing] the victim," drawing an objection:
[A.D.A.] BEDEROW: . . . [Defense counsel] says to you what was Mr. Alom doing on the subway at four in the morning? It's classical[,] blame the victim for being the victim of a crime. [Defense Counsel]
[A.D.A.] BEDEROW: What is he doing on the subway at four o'clock in the morning at midtown in Manhattan when he says he lives way out in East New York in Brooklyn? What is he doing on the train at that hour?
THE COURT: Overruled. (Tr. ...