The opinion of the court was delivered by: John Gleeson, United States District Judge
Randall Dantzler, a prisoner incarcerated in the Sing Sing Correctional Facility, petitions for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from a judgment of the New York State Supreme Court, Kings County. Dantzler was convicted of weapons and assault charges after a jury found that he shot Randall Scott on a street in Bedford-Stuyvesant.
Appearing pro se, Dantzler contends that the trial court erred by instructing the jury that it could draw an adverse inference against him because his mother did not testify in support of his alibi. He also argues that the twelve-year sentence he received for his crimes was excessive. Oral argument, at which Dantzler appeared by teleconference, was held on September 11, 2009. For the reasons set forth below, the petition is denied.
The evidence at trial established the following. Randall Scott dated Shakia Spencer on and off for several years, and the two had a child named Akayla in 2002. Shortly after Akayla's birth, however, Spencer began a romantic relationship with Dantzler. On the night of Sunday, April 10, 2005, Spencer brought the child to Scott's home for a visit, and after the visit, Scott walked Spencer and his daughter home. As they walked, they passed Dantzler, who was standing on the street with two friends. Though Spencer sought to reassure Dantzler that her relationship with Scott was innocent, Dantzler voiced his suspicions, and Scott and Dantzler engaged in a heated argument. Spencer, however, prevented the two men from fighting.
The prosecution witnesses testified that, two days later, Dantzler and Kevin Brown appeared on MacDonough Street between Saratoga Avenue and Thomas S. Boyland Street. There they came upon Donnell Scott, Randall's brother. Brown handed Dantzler a black plastic bag containing a.32-caliber revolver. Dantzler, it seems, mistook Donnell Scott for his brother. After taking the gun out of the bag, Dantzler tried to strike Donnell on the face with the handle; Donnell blocked the blow and the gun fired a shot.
Randall Scott was alerted, and he came to the aid of his younger brother, arriving on the scene with several others. Randall Scott grappled with Dantzler, trying to disarm him. During the struggle, however, the gun was fired, and a bullet entered Randall Scott through his left arm, lodging half an inch from his heart. After Randall Scott collapsed, Dantzler pointed the gun at him and pulled the trigger, but the gun was either jammed or was out of bullets. Dantzler then ran off.
Dantzler was charged with second-degree attempted murder, second-degree assault and criminal possession of a weapon in the second, third and fourth degrees. Randall and Donnell Scott testified against Dantzler.
Dantzler testified in his own defense. On cross-examination, he claimed that he was at home at the time of the shooting, which was approximately 6:30 p.m. He told the jury that he was sleeping from 2:30 p.m. to 10:30 p.m., and that his mother, with whom he lived in a small apartment, invariably came home at around 4:30 p.m. or 5:00 p.m. Dantzler accepted that his mother -- who was sitting the courtroom -- would be able to verify that he had emerged from his room at 10:30 p.m. Evidently, this statement did not fit well with defense counsel's trial strategy. On re-direct, Dantzler's counsel suggested that, in fact, Dantzler could not be sure that his mother would recall the night of April 12, 2005. Dantzler at first stated that she would remember it, but later agreed that she would not be able to recall exactly what had happened.
After the defense rested, the prosecutor requested a missing witness charge with respect to Dantzler's mother. The trial judge, Justice Holdman, granted the request, "based on the testimony provided at trial, specifically that the defendant stated on redirect. that his mother would know what day they were talking about and what day this occurred." Tr. 549. The judge gave Dantzler the opportunity to call his mother if he wished, but Dantzler's counsel chose instead to object to the ruling and proceed to summations. The judge charged the jurors that, if they found that the evidence warranted the inference, they could conclude that Dantzler's mother would not corroborate Dantzler's testimony.
The jury acquitted Dantzler on the attempted murder charge, but convicted him of second-degree assault and of second and ...