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Brown v. Conway

March 30, 2010


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Pro se Petitioner Raymond Brown, a New York state prisoner convicted, following a jury trial, of two counts of attempted murder and other weapons-related offenses, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts three claims: (1) the trial court improperly found that defense counsel's explanation for the exercise of a peremptory challenge was pretextual under Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court improperly permitted the jury to consider evidence of an uncharged crime; and (3) the trial court abused its discretion in curtailing defense counsel's ability to effectively cross-examine one of the prosecution's witnesses.

For the reasons discussed below, the Court DENIES the petition. (Dkt. No. 2.) As to Petitioner's Batson claim, Petitioner has failed to establish, by clear and convincing evidence, that the trial's judge's finding of pretext was erroneous. Petitioner's remaining claims fail, because they assert challenges to state evidentiary rulings that are not cognizable on habeas review, and because the judge's rulings did not "so infuse[ ] the trial with unfairness as to deny due process of law." See Estelle v. McGuire, 502 U.S. 62, 68, 75 (1991).


On January 8, 2000, Petitioner was arrested for the November 2, 1999 murder of Dwayne Hamilton. Ballistics tests on shell casings recovered from the scene confirmed that the same gun that was used in the Hamilton shooting had been used in two earlier shootings: the April 11, 1999 shooting of Xavier Roman and the May, 14 1999 shooting of Charles Cox. While in custody, Petitioner was questioned by detectives and gave a videotaped statement that, although focused on the November 1999 incident, contained admissions as to all three shootings.

On January 24, 2000, a Bronx County grand jury charged Petitioner with one count of murder in the second degree in connection with the November 1999 Hamilton murder (Indictment No. 425/00). A second indictment was filed in April 2001, charging Petitioner with two counts of attempted murder and other weapons-related offenses in connection with the April and May 1999 shootings (Indictment No. 1786/01). Justice Phyllis Bamberger, Supreme Court, Bronx County, denied the prosecution's motion to consolidate the indictments, and trial on Indictment No. 1786 (the two attempted murders) went to trial first.*fn1 (May 9 Tr. 2-23; May 10 Tr. 24-70.) The record from that trial, the subject of the instant habeas proceeding, is lengthy and is summarized only to the extent relevant to Petitioner's claims on habeas review.

I. Proceedings in the Trial Court

A. Prosecution's Successful Batson Challenge

During jury selection, defense counsel made a number of peremptory challenges to prospective white jurors. The judge found that there was a prima facie case of discrimination, and rejected, as pretextual, defense counsel's explanations as to two of the challenged jurors. Those jurors were both seated. Here, Petitioner challenges the trial judge's finding of pretext with respect to one of the jurors, Mr. Domingo.

At the start of voir dire, the trial court provided prospective jurors with a numbered questionnaire. The questionnaire asked each prospective juror to provide information regarding, inter alia, his age, residence, level of education, and prior jury service, and whether he could understand and apply "the legal principles, including the presumption of innocence and the state's burden of proving guilt beyond a reasonable doubt." (Killian Aff.; Ex. 6 (Question #20.)

The judge and the parties examined sixteen jurors in the first panel. Prospective Juror No. 10, Mr. Domingo,*fn2 gave the following answers:

PROSCPECTIVE JUROR: Number one, sixty-four [age]; Throgsneck; thirty-six years; fifty-one years, fifth grade [level of education], retired.

THE COURT: And what did you do Sir, before you retired.

PROSPECTIVE JUROR: I was a truck driver.


PROSPECTIVE JUROR: Wait a minute. I'm retired, okay, I have two children, thirty-seven and forty-one, they housewives, number twelve, nobody; number thirteen, no; fourteen, no; fifteen, no; sixteen, no; seventeen, civil case; eighteen, no. I like to swim, bike, and walk, and number twenty, I'm undecided. I really don't understand exactly what it means.

THE COURT: Okay, well thank you for saying that. The first princip[le] is that everyone must consider and believe the Defendant to be innocent of the charges. That's called the presumption of innocence.

The second rule is that the district attorney is responsible [to provide] evidence here in the courtroom . . . and the evidence has to convince the jurors that the crimes charged are proven beyond a reasonable doubt . . . .

The Defendant doesn't have to prove or disprove anything. He doesn't have to produce evidence [be]cause the burden is on the district attorney to prove the charges beyond a reasonable doubt. Do you understand the rules now?

PROSPECTIVE JUROR: Okay, thank you.

THE COURT: Okay, and can you follow them here?


(V.D. 115-17) (emphasis added).

The judge asked the parties, outside the presence of the prospective jurors, if there were any challenges to the first twelve prospective jurors for cause. The prosecution challenged one juror, Mr. Diaz (Prospective Juror No. 11) on the ground that "his ability to speak English is . . . problematic." (V.D. 168) Defense counsel did not object to the challenge. He stated that he did not recall a language difficulty, but stated instead that the juror was "not sure whether he [understood or] could apply the [legal] princip[le]s." (Id.) The judge agreed and excused the juror for cause. Defense counsel made no challenges for cause in this round.

The judge continued: "Okay, now before we start the peremptory, I just want to put everybody on notice about Batson issues here, so just be careful what you do. Go ahead. You better be ready." (VD. 169) With respect to the eleven jurors in this group, the prosecution exercised one peremptory challenge, and defense counsel exercised six peremptory challenges. Defense counsel challenged prospective jurors No. 1 (Mr. Calabrese), No. 2 (Mr. Fogarty), No. 3 (Ms. Churman), No. 5 (Ms. Gonzalez), No. 6 (Ms. Engel), and No. 10 (Mr. Domingo). The prosecutor promptly registered a Batson challenge, observing that: "I think we pretty much got rid of all the Caucasians with one swoop."*fn3 (V.D. 170) The court found, after deciding to classify "Hispanic" jurors as "White," that the prosecution had established a prima facie case of discrimination.

Next, when asked to provide reasons for each of the challenges, defense counsel explained that Mr. Calabresi had prior experience issuing summonses and was the "functional equivalent of a law enforcement official"; that Mr. Fogerty and Ms. Engel had both been the victims of robberies, and that Ms. Engel had previously testified before a grand jury; and that Ms. Churman's daughter had been the victim of a crime. Defense counsel then explained his challenge to Mr. Domingo, Prospective Juror No. 10, as follows:

DEFENSE COUNSEL: . . . although he's only 64 years of age, if that's what I recollect, he said he had some problems in understanding the princip[le]s. He wasn't sure. Your Honor had to reiterate them for him and again he said okay . . . I'm saying he's only 64, he doesn't seem like he's that alert and I point to the issue, the fact that he didn't understand some of the princip[le]s. He wasn't sure he could apply them.

THE COURT: He didn't say that.

DEFENSE COUNSEL: He said not sure.

THE COURT: He didn't say he wasn't sure, he said he wasn't sure whether he understood them. . . . And when I re-explained them to him he ...

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