The opinion of the court was delivered by: James Orenstein, Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner Henry Vega ("Vega"), who is incarcerated in New York after being convicted of second-degree murder and related offenses, seeks a writ of habeas. Docket Entry ("DE") 1. Vega first complains that he was deprived of a fair trial by the improper admission of evidence of uncharged crimes. Second, he asserts that the trial court denied his Sixth Amendment right to confront his accusers by admitting the testimony of a medical examiner who did not perform the autopsy about which she testified. Third, Vega argues that he was deprived of his right to equal protection of the law during jury selection when the trial court did not elicit from the prosecutor the race-neutral reasons for his exercise of several peremptory challenges, as required under the rule of Batson v. Kentucky, 476 U.S. 79 (1986). Upon a referral from the Honorable Allyne R. Ross, United States District Judge, DE 9, I now make my report and, for the reasons set forth below, respectfully recommend that the court deny the petition in its entirety.
Joseph Thomas "Tommy" Hill ("Hill") was killed in the early morning of November 5, 1996 in Kissena Park in Flushing, Queens. Hill was shot three times by a nine-millimeter handgun and robbed of approximately $400 to $600. Police later arrested Vega and co-defendant Alfred Augugliaro ("Augugliaro") and charged each with two counts of second-degree murder as well as two additional counts of second- and third-degree criminal possession of a weapon. See DE 10 (state court record), Indictment;*fn1 see N.Y. Penal Law §§ 125.25(1)-(2), 265.02(4), 265.03(2).
The court severed the trials of the two defendants, and tried Vega twice in early 2002; the first trial resulted in a mistrial when the jury was unable to reach a verdict, and the second ended with Vega's conviction on one count of murder and both counts of weapons possession. See 1Tr. 3-23, 1307; 2Tr. 1263-64. At each trial the prosecutor relied primarily on the testimony of three fact witnesses -- Holly Szamble ("Szamble"), Albert Andujar ("Andujar"), and Christopher Flores ("Flores") -- in addition to forensic testimony by a medical examiner concerning the time and manner of Hill's death. I briefly summarize that evidence below, and defer to the discussion a more precise recitation of the facts relevant to each of the three claims in Vega's petition.
Szamble testified that in the latter half of 1996, while she was homeless and addicted to drugs, Vega allowed her to sleep in his apartment above the Bilmar Bar, which was located three blocks from Kissena Park in Queens, New York. During her stay, she observed that Vega, who was then 32 years old, received daily visits at his apartment from Augugliaro, who was then approximately 17 years old. Szamble sometimes saw the two men bagging cocaine together. 2Tr. 866-77, 904-06.
One day in early November 1996 (shortly after Szamble's birthday on the third of the month), Augugliaro came to the apartment between 11:00 and 11:30 p.m. and spoke with Vega outside of Szamble's presence for about ten minutes. Szamble then saw Vega take something from a drawer under his bed, put it under his shirt, and leave. Although Szamble did not see the item that Vega took from the drawer, she had often seen guns and gun-related magazines and videos in that same drawer. 2Tr. 879, 882-86, 907-08, 910, 916-17, 946.
When Vega returned to the apartment around 4:00 a.m., he said something about "Al [Augugliaro] breaking his cherry." 2Tr. 888. Later that morning, Augugliaro came over to the apartment and Vega told Szamble that he had "broken Al in, in the back of Kissena Park that night before," and that "Al had broken his cherry." 2Tr. 880-81. She later spoke with Augugliaro, who told her that he and Vega had been shooting guns in the back of Kissena Park. 2Tr. 934. At that time, Szamble did not know what Vega was talking about, and she remained unaware of Hill's murder when she related the statements to the police during an investigatory interview several years later. 2Tr. 893-900, 927.
Andujar testified that Vega was a friend with whom he sold drugs starting in approximately 1997. 2Tr. 734-37. In early 1997, Andujar had a conversation with Vega and Augugliaro in which Vega asked Andujar if he had heard of any homicides in Kissena Park. When Andujar said that he had, Vega told him that "one of them was mine" and related that he and Augugliaro had met a white man in front of the Bilmar Bar, walked him into the park, and Vega had shot him in the head because the man owed him money. 2Tr. 745-47. Andujar testified that he did not believe Vega's statement at the time. 2Tr. 750-51, 800.
Flores began selling drugs for Vega in early 1996, when he was 17 years old. He stated that Vega and Augugliaro sold drugs together at that time, and that Vega was "the boss." 2Tr. 956-59, 1000-02. Flores sold marijuana for Vega at his high school and in other areas of Queens. He reported to Augugliaro and gave the latter 60 percent of his earnings. 2Tr. 958-60, 1002-03. After Augugliaro went to jail for robbery in 1997, Flores began working directly for Vega, and the two men developed a closer relationship. In March 1999, Vega proposed that he and Flores carry out a "hit" on behalf of "suits," which Flores understood to mean members of organized crime. 2Tr. 971-72. Vega asked Flores whether he had ever committed a murder. Flores replied that he had not. Vega then explained "that I shouldn't worry ... that the first time ain't that bad[.]" Vega then told Flores that "once he went with Al [Augugliaro] to the Bilmar Bar. The guy came out, Tommy [Hill] and they offered him some coke to get in the car and they took him out to Kissena Park." Vega told Flores that he had killed Hill in Kissena Park, because Hill had "fucked up." Flores also testified that Vega had told him various things about committing murder: "he told me, it's funny how people walk to their own death ... he told me the head wounds are the worst wounds because you see blood and you see brain matter. He told me when the body is on the floor, to move back a couple of steps to shoot at the head and to be careful that blood wouldn't splatter on your clothes or on your boots." 2Tr. 974-75.
Vega was sentenced as a second felony offender to a prison term of 25-years-to-life for murder, to be served concurrently with terms of fifteen and seven years, respectively, for the two weapons possession offenses. On direct appeal of his conviction, Vega raised each of the issues he now seeks to raise in this court. See App. Br. at37-53, 61-68. The appellate court affirmed the conviction on November 28, 2005. People v. Vega, 805 N.Y.S.2d 642 (App. Div. 2005). The New York Court of Appeals denied Vega's request for further review on April 21, 2006. People v. Vega, 849 N.E.2d 983 (N.Y. 2006) (unpublished table decision).
Vega filed the instant petition, together with a supporting memorandum of law, on December 6, 2006. DE 1; DE 2 ("Memo."). The respondent filed an opposing memorandum, together with an affidavit, on April 6, 2007. DE 6 ("Opp."). The respondent also filed relevant portions of the state court record on January 14, 2009. DE 10.
While the matter was pending, the United States Supreme Court decided a case that potentially affected the merits of Vega's Confrontation Clause claim. See Melendez-Diaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527, 2532 (2009). I ordered the parties to submit supplemental letter-briefs as to the extent, if any, to which Melendez-Diaz affects the merits of Vega's petition. See DE 11 (minute entry for telephone conference of July 22, 2009). In addition, I concluded that the court would benefit from a hearing to determine the prosecutor's reasons for the peremptory challenges at issue in Vega's Batson claim. See id.; DE 14 (minute entry for telephone conference of September 25, 2009). I conducted such a hearing on October 20, 2009. DE 24 (minute entry); DE 26 (transcript of hearing) ("HT"). Following the hearing, the parties submitted supplemental briefing on both the Confrontation Clause issue and the Batson issue. DE 27 (Vega) ("Supp. Memo."); DE 30 (respondent) ("Supp. Opp.").
A. Threshold Procedural Issues
Vega filed his petition less than one year after the completion of direct appellate review in the state courts. The petition is therefore timely. See 28 U.S.C. § 2244(d)(1)(A). Having presented on direct appeal of his conviction each of the claims on which he now seeks habeas relief, Vega has also satisfied the exhaustion requirement of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see App. Br. at 37-40, 37-53, 61-68. Finally, the record plainly reveals that each of Vega's claims implicates the federal Constitution and that each such claim was reviewed in state court and either explicitly rejected on the merits or, at a minimum, not explicitly decided on an "independent and adequate state ground." Coleman v. Thompson, 501 U.S. 722, 729 (1991); see Harris v. Reed, 489 U.S. 255, 261-62 (1989); Degrijze v. Artuz, 134 Fed. Appx. 460, 461 (2d Cir. 2005); Vega, 805 N.Y.S.2d at 642-43.*fn2 Accordingly, this court has jurisdiction to consider all of Vega's claims on the merits.
A federal habeas court may grant relief on a claim that was decided by the state court on the merits only if it concludes that the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). A state court decision is "contrary to" Supreme Court precedent if it applies a legal rule that contradicts a rule set out in governing Supreme Court cases, or if it addresses a set of facts that are materially indistinguishable from those in a Supreme Court case and reaches a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an "unreasonable application" of Supreme Court precedent if it identifies the correct legal rule but unreasonably applies it to the facts of a particular case, or if it makes an unreasonable decision about whether to extend existing Supreme Court precedent to a new context. Id. at 407. Habeas relief is unavailable unless the trial court's decision was "so plainly unconstitutional that it was objectively unreasonable" for the appellate court to affirm. Jimenez v. Walker, 458 F.3d 130, 147 (2d Cir. 2006) (citing Williams, 529 U.S. at 409-10, 412).
With respect to any issue properly raised in a habeas petition that the state court did not determine on the merits, the deferential standard prescribed under AEDPA is inappropriate. Wiggins v. State, 539 U.S. 510, 531 (2003) (applying de novo standard of review to part of federal claim not reached by state court); Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir. 2001) (applying de novo standard where it was "impossible to discern the Appellate Division's conclusion" on issue); Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (giving no AEDPA deference where petitioner's constitutional claim not adjudicated on the merits); cf. Jimenez, 458 F.3d at 143 (noting that decision may still be "on the merits" where state court did not articulate its reasons for adjudicating the claim as it did).
B. Evidence Of Uncharged Crimes
Vega claims that the trial court improperly admitted evidence of his prior conduct involving narcotics trafficking, weapons possession, and the solicitation of a murder, as well as evidence about a tattoo of the word "enforcer" on his body. He complains that such evidence impermissibly tended to demonstrate his propensity to commit crimes and therefore deprived him of his right to a fair trial. Memo. at 35. As explained below, I disagree.
Before the start of Vega's first trial, the prosecutor made an application pursuant to state law to present certain evidence of uncharged criminal conduct in which Vega had participated. See People v. Molineux, 168 N.Y. 264, 293-94 (1901) (evidence of uncharged crimes is generally inadmissible under New York law except when probative of a material element of a charged offense); People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981) (evidence of prior crime admissible when probative value of evidence outweighs potential for prejudice). First, the prosecutor sought to prove that Vega was in the business of distributing marijuana and cocaine; that co-defendant Augugliaro worked for Vega selling drugs; that Vega sold drugs to victim Hill; and that Hill had accumulated a debt to Vega. The prosecutor argued that such evidence would demonstrate both a motive for Vega to kill Hill and a reason for Vega to have confessed the murder to certain witnesses. 1Tr. 25-26. Pursuant to the court's pretrial ruling, 1Tr. 119, the prosecutor adduced this evidence through the testimony of witnesses Szamble, Andujar, and Flores.*fn3
Second, the prosecutor applied to introduce evidence of an undercover police sting operation in which sham organized crime figures solicited Vega to participate in a "hit." Specifically, the prosecutor sought to prove that Vega agreed to commit the murder and recruited witness Christopher Flores to assist him in the execution, and argued that such evidence would help explain why Vega would confess to Flores his involvement in the charged murder of Hill.
1Tr. 36-39. Pursuant to the court's pretrial ruling, 1Tr. 119, Flores testified about an episode in April 1999, when Vega called Flores and told him to meet him at a restaurant. When Flores arrived, Vega was sitting at a table with three men. Vega told Flores that the men were "mafioso." 2Tr. 978. Vega, Flores, and the three men discussed a proposed "hit" on a man named Eric who was "hustling [drugs] around the neighborhood" and who "was making a fool of me [Flores] and Henry [Vega]." 2Tr. 979. Vega had previously mentioned to Flores that he wanted to get money from Eric because Eric was selling drugs in Vega's and Flores's area. 2Tr. 979. Unbeknownst to Vega, Flores and Eric were friends from high school, and Flores told Eric about the proposed "hit." 2Tr. 980. Flores later told Vega that he did not want to be involved. Vega reacted by punching a wall and throwing Flores out of his apartment. 2Tr. 1048-51, 1072.
Finally, the prosecutor offered evidence that Vega possessed handguns and instructional manuals, and sought to prove that Vega kept the weapons in a particular part of his apartment and that he was observed going into that area, removing something, and putting it in his belt around the time of the homicide. The prosecutor argued that the evidence permitted an inference that Vega had retrieved a handgun and therefore had an opportunity to commit the charged murder. 1Tr. 40-42. Pursuant to the court's pretrial ruling, the prosecutor elicited testimony about the guns from Szamble.*fn4
In addition to the evidence of uncharged crimes that the trial court admitted after a pretrial Molineux hearing, Vega complains about the admission of Flores's testimony about his tattoo. Specifically, Flores testified that Vega had the word "enforcer" tattooed on his abdomen, and the prosecutor introduced a photograph of that tattoo. 2Tr. 995-97. When Vega objected to such evidence at his first trial, 1Tr. 1017, the prosecutor argued that Vega was "basically advertising, a billboard, if you would, of his job or his role as an enforcer, and also it is in line with his testimony that ... he murdered Tommy Hill because Tommy Hill, excuse my language, fucked up[.]" 1Tr. 1018. The court admitted the evidence at the first trial, 1Tr. 1019, and then again, over Vega's renewed objection, at the second. 2Tr. 997.
To determine whether there has been a constitutional violation, the court must consider whether the evidentiary rulings were proper under state law, and if not, whether the error deprived petitioner of a fundamentally fair trial. See, e.g., Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997). Under New York state law, evidence of prior bad acts may not be introduced for the purpose of showing defendant's propensity to commit the crime charged, but it has long been admitted for other purposes, including to show intent or lack of mistake. Nowlin v. Greene, 467 F. Supp. 2d 375, 380 (S.D.N.Y. 2006) (citations omitted). Even if Vega can show, however, that this evidence was improperly admitted to prove his propensity to commit the charged crime, he would not be entitled to relief because the admission of such evidence does not violate "clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has never held that the admission of evidence of prior crimes to show propensity constitutes a deprivation of due process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime"); Spencer v. Texas, 385 U.S. 554, 572-74 (1967) (Warren, C.J., concurring in part and dissenting in part) (the Supreme Court "has never held that the use of prior convictions to show nothing more than a disposition to commit crime would violate the Due Process Clause of the Fourteenth Amendment," but expressing belief that such use would violate due process); see Allaway v. McGinnis, 301 F. Supp. 2d 297, 300 (S.D.N.Y. 2004) (acknowledging that "the Supreme Court has not yet clearly established when the admission of evidence of prior crimes under state evidentiary laws can constitute a federal due process violation").
Not all erroneous admissions of evidence rise to the level of a due process violation. Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998). The court's task is to determine whether the evidence was "so extremely unfair that its admission violates fundamental conceptions of justice." Id. (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). The court must not grant the writ unless the admitted evidence, "viewed objectively in the light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been 'crucial, critical, highly significant[.]'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982)).
Vega is plainly entitled to no relief with respect to the admission of evidence of his drug-trafficking or his possession of handguns: as the prosecutor correctly argued and the trial court recognized, such evidence was relevant to prove Vega's motive and opportunity for committing the charged murder of Hill, and also served to explain why Vega would confess his participation in that murder to witnesses Andujar and Flores. See United States v. Araujo, 79 F.3d 7, 8 (2d Cir. 1996) (defendant's statement to government witness that she had been a drug courier admissible to demonstrate trust relationship between witness and defendant); Bossett v. Walker, 41 F.3d 825, 829-30 (2d Cir. 1994) (prosecutor's references to drug-dealing were not prejudicial because evidence of drug activity could have been admitted to establish motive); United States v. Robinson, 560 F.2d 507, 513 (2d Cir. 1977) (evidence that defendant had gun admissible because it tended to show he had opportunity to commit crime); Young v. McGinnis, 411 F. Supp. 2d ...