The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Frank McClarin ("McClarin" or "petitioner") was convicted in the New York State Supreme Court, Kings County, after a trial by jury, of robbery in the second degree (N.Y. Penal Law § 160.10) on October 21, 1999. Petitioner moved the trial court to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30 on the grounds that the evidence was legally insufficient to sustain the jury's verdict and that the court's ruling on the Sirois hearing was erroneous. The court denied petitioner's motion on January 31, 2000, and sentenced him on February 14, 2000 to a prison term of sixteen years to life as a persistent violent felony offender.
The Appellate Division of the New York State Supreme Court, Second Department, affirmed the judgment on November 18, 2002. See People v. McClarin, 299 A.D.2d 495, 749 N.Y.S.2d 884 (2d Dep't 2002). On January 31, 2003, the New York Court of Appeals denied petitioner's leave to appeal. See People v. McClarin, 99 N.Y.2d 583, 755 N.Y.S.2d 719 (2003).
On September 22, 2003, petitioner moved to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20. On November 28, 2003, the Kings County Supreme Court denied petitioner's motion. On August 18, 2004, the Appellate Division of the New York State Supreme Court, Second Department, denied petitioner's application for leave to appeal. On June 29, 2004, petitioner moved to vacate the judgment of conviction on the ground of ineffective assistance of counsel based on counsel's waiver of petitioner's presence while the trial court announced additional findings regarding the Sirois hearing. Petitioner also alleged that the trial court denied him due process of law when it failed to inquire of him whether he waived his right to be present. The Kings County Supreme Court denied petitioner's motion on August 30, 2004, finding petitioner's claims to be procedurally barred pursuant to New York Criminal Procedure Law §§ 440.10(2)(a) and (2)(c). On February 4, 2005, the Appellate Division of the New York State Supreme Court, Second Department, denied petitioner's application for leave to appeal.
On May 10, 2005, petitioner filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
On the evening of November 28, 1998, at approximately 9:00 p.m., at Montauk and Pitkin Avenues in Brooklyn, New York, two men, petitioner and an unapprehended accomplice, approached Francisco Rosa Vargas. (Vargas: 184-85, 188, 208-09; Morales: 227-28.)*fn1 Vargas's rendition of the events that followed differed during his testimony before the grand jury and his testimony at trial. Before the grand jury, Vargas testified that both men produced handguns, one man putting a gun to his neck, and the other putting a gun to his stomach. (Vargas: 208-09; Morales: 228, 232.) He further testified that the men took his jacket, beeper, watch, ring and some money, and that petitioner told him that if he called the police, petitioner would kill him. (Vargas: 208-10; Morales: 228-29, 231-33.) However, at trial, Vargas testified that, although petitioner had been present during the robbery with what appeared to be a pistol, petitioner did not participate in the robbery. (Vargas: 184-93, 206-07.) Rather, petitioner's unapprehended accomplice alone pointed the gun at Vargas, took his property, and told Vargas not to call the police. (Id.) Specifically, Vargas testified at trial, "there were two [men involved] but the other one was the one that took off everything from me . . . [petitioner] was there but the other one was the one who committed [the robbery]." (Vargas: 184, 186.) The robbers fled together on foot. (Vargas: 193.)
Immediately thereafter, Vargas flagged down Lieutenant Pablo Martinez and Officer Noreen Potvin, who were patrolling in an unmarked car. (Potvin: 24-25; Martinez: 78-80.) Vargas told the officers, primarily in Spanish, that he had been robbed, and described the robbers as two black males, twenty to thirty years old, approximately five feet eight or nine inches tall, one with short hair, glasses and a mustache, the other with shoulder-length hair in braided curls, wearing a dark jacket and jeans. (Potvin: 25-29, 51-52, 54; Martinez: 81-83, 95, 101-02; Vargas: 183-84, 195-96.) Officer Potvin's memo book described only a "male, light-skinned with glasses," while Martinez's memo book contained no descriptions. (Potvin: 54-55; Martinez: 102.)
After canvassing the area in the police officers' car for approximately ten to fifteen minutes, Vargas saw two men standing together in front of the entrance to the subway station at Pitkin and Shepherd Avenues and identified them as the robbers. (Potvin: 31-36, 54-56; Martinez: 83-86; Vargas: 196-97.) The man later identified as petitioner had shoulder-length braided hair and was wearing a brown leather jacket, blue jeans and work boots. (Potvin: 34-35, 50; Martinez: 84-85, 98.) The other man had short hair and glasses and was wearing a bright colored jacket with dark pants.
(Potvin: 35; Martinez: 85, 95.) Both men were approximately five feet eight inches tall. (Potvin: 35, 49.) As the police exited the car, the man with the glasses ran into the subway and was pursued by Officer Potvin, while petitioner backed away and threw a beeper and a watch to the ground. (Potvin: 31-36, 56-57; Martinez: 86-89, 96-98, 114-15, 122.) Officer Potvin emerged from the subway station alone, and both officers handcuffed petitioner. (Potvin: 37-38, 60-62; Martinez 88-89, 114.) Lieutenant Martinez retrieved the beeper and the watch that petitioner had thrown to the ground, as well as a jacket and pellet gun from the subway. (Martinez: 89-92, 115-16.) Vargas identified the watch, beeper and jacket as some of the property that had been taken from him, and the pellet gun as one of the guns used in the robbery. (Vargas: 200-02; Martinez: 230-31.) No other guns were recovered at the scene, and the man with the glasses was never apprehended. (Potvin: 59-60, 63; Martinez: 117-19.)
Petitioner was charged with robbery in the first degree (N.Y. Penal Law § 160.15), two counts of robbery in the second degree (N.Y. Penal Law § 160.10, [b]), and lesser related offenses.
Relevant Events at Petitioner's Trial
On the second day of the trial, before Vargas testified, the prosecutor advised the court that petitioner had approached Vargas on at least three occasions, had apologized to Vargas, and had implored him not to testify against him at trial. (128-29.) The prosecutor also noted that these contacts might be in violation of a judicial order of protection. (129-30.) The prosecutor then requested a hearing outside the presence of the jury to determine whether petitioner had made admissions to Vargas that could be admitted into evidence at trial. (130.) Defense counsel concurred in the prosecutor's request, and the court granted the hearing. (132-33.)
At the hearing, Vargas testified that petitioner had approached him on two or three occasions since the robbery. (Vargas: 137, 140.) The first contact occurred approximately five months after the robbery at Pitkin Avenueand Milford Street in Brooklyn, while Vargas was sitting in a parked car. (Vargas: 202.) Petitioner told Vargas, "Popi, I was on drugs, heroin and crack, I am sorry, you know, it was like a misunderstanding, I was not into that." (Vargas: 137.) Petitioner also said that he did not have anything to do with the robbery, and begged for Vargas's help. (Vargas: 143.) Vargas told petitioner there was "no problem," to which petitioner said thank you and walked away. (Vargas: 143-44.) The second contact occurred three days before Vargas testified at the hearing at a McDonald's restaurant on Atlantic Avenue in Brooklyn. (Vargas: 137-39, 140.) Petitioner said to Vargas, "Popi, excuse me, no problem, excuse me, I am sorry, no I was on drugs, it was like I was on drugs when that took place." (Vargas: 138.) Petitioner asked Vargas to help him and that he had repented. (Vargas: 144.) Vargas told petitioner there was no problem, petitioner said thank you and left. (Id.) Vargas testified at the hearing that on one of these occasions, petitioner had asked Vargas not to testify against him in court. (Vargas: 138-39.) Vargas further testified that he had seen petitioner in the courthouse hallway immediately prior to his testimony, but denied that he had seen anyone sitting with petitioner, or that anyone had gestured toward or threatened Vargas or had asked Vargas not to testify. (Vargas: 141.) Vargas was unaware of an order of protection against petitioner, and did not remember the third contact. (Vargas: 140-41, 145.)
The court took judicial notice that an order of protection had been issued directing petitioner to stay away from Vargas, and found that petitioner had violated the order of protection by speaking to Vargas. (Vargas: 146, 155.) The court also noted that Vargas had been "terrified" during his hearing testimony, and found petitioner responsible for that his fear. (Vargas: 152, 155.) Ultimately, the court ruled that petitioner's statements to Vargas contained admissions and that Vargas would be allowed to testify about them during the prosecution's case. (Vargas: 146-47.) Specifically, the court stated:
After having heard the witness and considering the prejudicial value and the relevance of the testimony, I am finding that I will allow it. It seems to me that these are admissions by the defendant and as such they are admissible and any prejudicial value I think is overcome by the probative value. I am not talking about the fact that I am satisfied that the defendant did approach Mr. Vargas and did say the things that Mr. Vargas just testified to so on that basis I will allow the questioning on direct regarding the conversation between the defendant and Mr. Vargas. (Vargas: 147.) The court further ruled that the prosecution would be allowed to impeach Vargas's trial testimony with Vargas's grand jury testimony. (Vargas: 152-55.) Characterizing the earlier hearing as a "pseudo-Sirois [sic] hearing," the court decided to treat Vargas's prior hearing testimony as part of the Sirois hearing, to take further testimony from Vargas to "complete the hearing,"and to allow the defense to cross-examine Vargas. (162-63.)
Thereafter, Vargas testified that he did not feel presently threatened by petitioner, nor had he felt threatened during the two occasions petitioner had approached him before trial. (Vargas: 164-65.) Rather, Vargas testified that he felt sorry for petitioner because, on the first occasion, petitioner had appeared weak and cried and, on the second occasion, petitioner had walked with a cane, knelt before Vargas, and pleaded with Vargas to help him. (Vargas: 164-66.)
The prosecution then called Detective Investigator Efraim Alvarado of the Kings County District Attorney's Office. (Alvarado: 167.) Alvarado testified that, on the morning of the hearing, he was assigned to bring Vargas to the District Attorney's Office to meet with the prosecutor. (Alvarado: 168.) Although Vargas had displayed an unwillingness to testify in the beginning of that meeting, it was "not much." (Alvarado: 172.) However, Vargas told Alvarado that he was "afraid to testify while Mr. McClarin was in the courtroom." (Alvarado: 172.)
Alvarado accompanied Vargas to court, seating him on a bench outside the courtroom. (Alvarado: 171.) Petitioner was seated next to Vargas, and there were several other individuals in the hallway. (Alvarado: 171, 173-76.) Vargas's demeanor changed because "[h]e was afraid, he thought the individuals that were outside were here to see the defendant." (Alvarado: 172.) He told Alvarado, "cuff me right now, I am not going to testify, I don't want to, I really don't want to testify." (Id.) When the prosecutor came out into the hallway, Vargas stated that he was going to testify that McClarin had been present at the time of the robbery, but did not participate in it. (Alvarado: 177.)
The trial then resumed with Vargas's testimony. As recounted above, Vargas testified, contrary to his grand jury testimony, that petitioner had been present but had not participated in the robbery. (Vargas: 184-93, 206-07.) The court, discounting the testimony about the other individuals in the hallway, ruled that based on "all the evidence I had heard this morning, I think there is a Sirois [sic] problem here and you will be allowed to read the Grand Jury testimony to the jury," and that it was satisfied "the defendant actively consciously participated in threatening this defendant [sic]." (177-78.) The basis for the court's decision was "the witness, testimony that I heard and his conduct today convinced me that the man feels threatened." (180.) The prosecutor then used Vargas's grand jury testimony to impeach the credibility of Vargas's trial testimony. (Vargas: 207-10.)
The court remanded petitioner following Vargas's testimony. (211-12.) After lunch, but before petitioner entered the courtroom, the court made additional Sirois findings.(212-13.) Defense counsel waived petitioner's presence. (212.) The court stated that it had observed Vargas's demeanor and was convinced that Vargas had been in great fear during his testimony. (Id.) The court held that even if petitioner had not threatened Vargas, the logic of Sirois would still apply because petitioner had asked the witness for sympathy. (212-13.) The court further held that the prosecutor would be allowed to have Vargas's grand jury testimony read into evidence and considered by the jury as direct evidence of petitioner's guilt. (213-17.) Vargas's grand jury testimony was subsequently admitted into evidence and read to the jury. (Morales: 227-33.)
2. The Prosecution's Summation
On summation, the prosecutor primarily sought to establish that Vargas's grand jury testimony more accurately described the events that transpired on November 28, 1998. The prosecutor began by framing the issue as whether petitioner had a "role in that robbery," and if so, "whether he participated . . . to such a degree as to expose him to criminal liability." (280-81.) The prosecutor then detailed the differences between Vargas's grand jury testimony and his testimony at trial, and invited the jury to question why such differences exist. (281-83.) In outlining for the jury why it should believe Vargas's grand jury testimony over his testimony at trial, the prosecutor first asserted that, contrary to defense counsel's contention, Vargas had no problem understanding the grand jury interpreter. (284-85.) Second, the prosecutor argued that the differences between the two accounts given by Vargas were because petitioner had "reached out to him." (285-93.) Third, the prosecutor noted that Vargas's grand jury testimony occurred closer in time to the robbery and predated petitioner's encounters with Vargas. (293-94.) Finally, the prosecutor reminded the jury that "we have the defendant's own words . . . the defendant admitted to Mr. Vargas that he was there." (295.) The prosecutor sought to diminish any sympathy the jury members may feel towards petitioner given that he had apologized to Vargas and had begged for his sympathy by arguing that petitioner's apology in fact constituted an admission of guilt. (286-88, 293-7, 310.) In response, the trial court directed the prosecutor to "not . . . touch that area anymore . . . do not go into the question 'I am sorry, I am begging' . . . you covered that enough. Go on to something else." (296-97.)
The prosecutor then countered defense counsel's argument that the evidence corroborated Vargas's trial testimony. The prosecutor argued that Officer Potvin did not write down a description of petitioner in her memo book, even though she wrote a description for the second man, because she had been distracted at the time canvassing the area with Vargas and did not ordinarily record every detail in her memo book. (298-99.) The prosecutor further argued that the description of the perpetrators that Lieutenant Martinez put over the radio contained inconsistencies simply because, unlike Vargas, Lieutenant Martinez is not fluent in Spanish and Vargas had difficulties communicating with him. (299-300.) Finally, the prosecutor argued that inconsistent evidence is not indicative of a conspiracy to frame petitioner. (300-01.)
The trial court sustained defense counsel's objections on several occasions throughout the prosecution's summation. While countering defense counsel's argument that Vargas's differing accounts of what happened created reasonable doubt, the prosecutor told the jury that Vargas said some things at trial that were "not true" because petitioner "made him come here and say those things." (292-93.)The court struck the prosecutor's comment from the record. (293.) The prosecutor then told the jury, "it is like a son who kills his parents and throws himself on the mercy of the Court," to which the court responded, "[s]top this right now, go on to something else." (293.)
The prosecutor continued by asserting that Vargas told "the straight story in the Grand Jury" before petitioner "got to him" and "tainted his testimony at trial." (293-94.) The court struck the word "tainted." (294.)
The court also sustained defense counsel's objection to the prosecutor's argument that Vargas "never denied at trial"that petitioner had a gun. (304-05.) The prosecutor next said, "[h]e never at trial backed away from his Grand Jury . . . ," and the court responded, "I am perfectly capable of discussing the law with the jurors. I ask you to confine yourself to what you think the facts are in this case." (305.) The prosecutor then told the jury that it could convict petitioner of robbery in the second degree even if a real gun was not involved because the man with the glasses was "actually present with [petitioner] while the robbery was committed and we know that is the case because Mr. Vargas testified . . . ." (306.) The court sustained defense counsel's objection, excused the jury, and repeated its prior admonitions to the prosecutor not ...