Opinion
05 Civ. 9387 (RWS).
August 9, 2007
Attorney for Petitioner, THE LEGAL AID SOCIETY, Criminal Appeals Bureau, New York, NY, By: Lawrence T. Hausman, Esq.
Attorneys for Respondent, ELIOT SPITZER, Attorney General of the State of New York, New York, New York, By: Luke Martland, Esq., Chelsea Chaffee, Esq., Assistant Attorneys General, Of Counsel.
OPINION
Calvin Collins ("Collins" or the "Petitioner") has sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. His application is opposed by Keith Barto, Superintendent (the "Superintendent" or the "State"). For the reasons set forth below, the application is denied.
Prior Proceedings
The Facts
People v. Collins 777 N.Y.S.2d 640lv. denied 817 N.E.2d 829
1. The Trial
a. Pretrial Hearings
During a pretrial suppression hearing before Justice Charles Solomon, defense counsel indicated that identification was going to be an issue at trial and stated that there was "apparently" a "pattern of robberies going on" at the Rangel Houses, which was the residence of the complainant, Dorothy Soto ("Soto"), and Petitioner and the location of the offense conduct charged. The prosecutor stated that other robberies would not be relevant to the trial. Defense counsel responded that this would be an issue because the "police paperwork" indicated that there was a pattern of robberies at the Rangel Houses at the time of Petitioner's arrest on July 4, 2001, for gambling in the vicinity of the Rangel Houses, and that Petitioner was questioned about these other robberies. (Hr'g Tr., Mar. 20, 2002 ("H1"), 94-95.)
The transcript of the pre-trial hearing held on March 20-21, 2002, will be referred to herein as "H1"; the transcript of the pre-trial hearing held on April 10, 2002, will be referred to herein as "H2": and the pre-trial hearing held on April 11, 2002, will be referred to herein as "H3."
On the following court date, the court indicated that the prosecutor had provided it with a Court of Appeals case, People v. Primo, 96 N.Y.2d 351 (N.Y. 2001), which addressed the admissibility of evidence of third-party culpability. Defense counsel stated that he believed the detective involved in this case had also been "`involved in a robbery pattern type investigation.'" (H1 at 130-31.) The court stated that such evidence would not automatically be admissible in the trial, and defense counsel replied that "it is certainly a factor which I think would be relevant in a defense," although at that point he did not know "the nature of the investigation." (Id. at 131.) Counsel further explained that Petitioner was questioned by officers regarding a pattern of robberies at the time of his arrest, and that "obviously we are interested in what exactly the pattern was, the MO so-to-speak. If it fits — I don't know if it fits the allegations of this case, maybe it does." (Id. at 132.)
The court then asked the prosecutor if she had any information regarding other robberies in this housing complex, and she responded, "I'm not going to engage in a fishing expedition, judge." (Id. at 133.) The prosecutor further stated that "[i]f counsel has some information he feels would connect a third party to this particular crime, let him present it to the Court and to the jury if you deem it appropriate." (Id.)
The prosecutor argued that Petitioner's attorney was not entitled to "every robbery description in Harlem," and the court agreed that he was not entitled to that information. (Id.) Defense counsel stated that he was only looking for information regarding "the pattern of robberies in the [R]angle Houses which apparently the PSA 6 officers were involved in," describing this as "a very finite group of robberies" that were "apparently committed during the summer of '[0]1." (Id. at 134.) The prosecutor continued to object to the relevance of other robberies, arguing that "unless counsel can show me some kind of proof that there is a third person involved in the robbery of Dorothy Soto, then those other robberies have absolutely no relevance to the robbery of Dorothy Soto." (Id.)
The court began to ask the prosecutor if she could obtain information regarding any other robberies at the Rangel Houses during the relevant time period, and the prosecutor responded that "they didn't even show this defendant to other witnesses." (Id.) The court indicated that it was not in possession of such information and made the following inquiry of the prosecutor:
You would agree with me there might be a certain situation under which this would be admissible at trial? If there was someone going around robbing people in those projects in a certain manner the same as the way in which Miss Soto was robbed, you would agree, if those were the facts, that might be admissible? We would have to have a discussion about that. You are saying it doesn't exit.
(Id. at 135.) After continued resistance from the prosecutor, the court adjourned the case and stated that this evidentiary issue would be discussed at a later date. (Id. at 135-36.)
On the next court date, which was before a different judge (Justice Bernard Fried), the court opened a new discussion on the evidentiary issue in question by stating that "[i]t is my position that counsel should not be permitted to inquire about any other robberies, if they are not relevant or probative in any way to this particular crime." (H2 at 12.)
Defense counsel stated that "we have information in the file and other information that has been developed during the investigation that there were robberies of residents of the Rangel Houses occurring during the summer of 2001 being perpetrated by somebody of a description other than Mr. Collins' description." (Id. at 13.) When asked how such evidence would be relevant to this case, counsel explained:
I'm simply seeking to question the officer concerning ongoing robberies within the Rangel Houses and whether there were similar — the robberies had similar fact patterns, whether they were push-in robberies, handbag robberies, to the one charged here, and if, in fact, anyone was ever apprehended and questioned concerning those other robberies. I mean, one of the issues that came up during the hearing was had they ever questioned Mr. Collins about these other robberies. . . . There is evidence out there that somebody, other than this Defendant, was committing similar robberies to the one that is alleged that this Defendant committed. I think it's relevant for the jury to hear that if, in fact, the issue which — we contend the main issue is identification and whether the identification here was a proper correct, good identification.
(Id. at 13-14.) The court stated that defense counsel would not be permitted to make any statements regarding other robberies during voir dire or opening statements, and that "[i]f during the course of the testimony of the police officers you think I should hear it, I will excuse the jury, I will listen to your witnesses at that time." (Id. at 14.)
Following jury selection, the court returned to this issue, again asking how evidence regarding other robberies could be relevant in the case. Defense counsel stated that there was either a wanted poster displayed in the Rangel Houses or officers had canvassed the area regarding a pattern of robberies committed in the Rangel Houses and that he did not know what the pattern was but was "presuming it's [a] pattern of robberies involving push in of a door, at the door of elderly people." (H3 at 178-79.) Counsel conceded that this case did not "really" involve a push-in robbery. (Id. at 179.)
The court again questioned how the possible third-party culpability evidence was relevant, stating:
. . . assuming there are fifty other robberies of a similar character in the community, and I don't know of — none of them are charged in this case and this victim identifies your client as the person who committed this robbery, how you can refer to the other robberies, her misidentification, or if that's what you claim it is, is unrelated to what other robberies have occurred. I don't understand.
(Id. at 180.) Counsel gave the following response:
Well, if in fact one of the descriptions that [Soto] gave is a description which was given in other robberies, in this pattern, I think it's highly relevant.
There's a couple of descriptions given in this case and they are varying descriptions and that's going to be an issue. And my point is, if in fact one of those descriptions, you know, six foot three, twenty-five year old black man matches a description given in another pattern of robberies —
. . .
It tends to prove that somebody else may have done this.
(Id. at 181.) The court ruled that counsel could argue that the victim's descriptions were inconsistent, but "not that the description relates to some description that involved another robbery which is not the subject of this [case]. Otherwise, it calls upon speculation of the jury and I won't permit it." (Id.)
Defense counsel reiterated that he was only asking to be permitted to question the police officer "if there was another description that they got of another perpetrator of some sort in the Rangel Houses," and the court again stated that it would not permit this line of questioning because "[i]t's close to sheer conjecture and speculation on the part of the jury. What's relevant is, there's two descriptions and it's different but the fact that one description may relate to another robbery is not before me." (Id. at 181-82.) Defense counsel argued that the court's ruling was "basically preventing this defendant from presenting a defense, i[.]e., the defense that somebody else did it and that somebody else who is not just somebody else, speculative, but somebody else that the police have a description of and know was perpetrating other crimes at the same time of a similar nature." (Id. at 182-83.) The court reiterated its ruling and stated that this ruling was "subject to further argument, if there's anything else you want to bring to my attention." (Id. at 183.)
b. The People's Case
At approximately 4:00 p.m. on June 2, 2001, Dorothy Soto, returned to her apartment building from the supermarket and was followed into the elevator by a man. Soto was carrying two grocery bags and a purse diagonally across her chest. When the doors opened on the sixth floor, the man told Soto to "go ahead." Soto told him that it was not her floor, and when he repeatedly asked what floor she needed, she told him that she was going to the fourteenth floor. While they rode in the elevator, Soto was able to see the man's face. (Trial Tr. 36-39, 43, 78-82, 139-40.)
Both Dorothy Soto and her daughter testified through an interpreter.
When the elevator stopped on the tenth floor, the man got off and began running. Soto continued to the fourteenth floor, and walked to her apartment. She knocked on her apartment door, and her two grandchildren opened the door. As she was about to enter the apartment, a man grabbed her from behind, knocked her down, and dragged her along the hallway. While she did not initially see who had grabbed her, once she was being dragged on the ground, she saw that it was the same man she had seen in the elevator. Soto began crying and struggling with the man. During the struggle, Soto's daughter entered the hallway and tried to intervene. The man also knocked Soto's daughter down and was able to get Soto's purse away from her. He then headed toward the stairs. Following this incident, Soto was taken to the hospital and treated for injuries to her left arm and her right cheek. (Id. at 39-42, 45-47, 52-53, 78, 90-92, 140-44, 151-58.)
Soto's daughter testified that after the incident, she described the perpetrator to police as approximately six feet tall, "not too skinny" and slightly muscular, approximately forty years old and bald. She told police that the perpetrator had been wearing dark pants and a sleeveless t-shirt or sweater. She further testified that she told police that the perpetrator was a man who she regularly saw outside the apartment building. After Soto was taken to the hospital, her daughter accompanied police around the Rangel Houses to look for the perpetrator, but did not find him. Soto's daughter and police officers conducted similar searches on approximately four other occasions, but never saw the perpetrator. (Id. at 161-68.)
Soto testified that she was sixty-three years old and had lived in the Rangel Houses for sixteen years. Soto further testified that the perpetrator had been wearing dark clothing, a dark jacket, and a cap. At the trial, Soto identified Petitioner as the man who had robbed her. (Id. at 30-31, 39, 42.)
Soto recalled first seeing Petitioner approximately ten years prior to the robbery when he helped workers deliver furniture to her apartment. Soto testified that she did not know Petitioner's name but would regularly see Petitioner in the mornings sitting in a nearby park and in the supermarket. Soto stated that Petitioner would say "hi mommy" on these occasions. Soto testified that in the three-month period prior to the robbery she saw Petitioner "always" and "[a]lmost all the time that I went down and walked around." Soto's daughter, who was living in Soto's apartment at the time of the robbery, likewise testified that she "always" saw Petitioner in a park outside the apartment building "rolling dice" and "drinking beer." Officer Jack Ren testified that he regularly patrolled the area of the Rangel Houses and saw Petitioner almost daily in an area outside the buildings prior to July 4, 2001. (Id. at 31-36, 133-39, 246-47.)
Officer Steven Alfano responded to the scene of the robbery, and after the Sotos spoke with Spanish-speaking officers, he obtained a description of the perpetrator as a thirty-five to forty year old black male, standing approximately six feet and three inches tall, with a shaved head and wearing a blue baseball cap, a multi-colored shirt, and blue jeans. (Id. at 309-13.)
Officer Robert Veloz also responded to the scene, and Soto described the perpetrator to him as a black male who was approximately twenty-five years old, six feet and three inches tall, weighing approximately 170 pounds, with a shaved head, and wearing a blue baseball cap, a multi-colored shirt, blue jeans, and dark sneakers. Veloz stated that while he indicated that the perpetrator had a crew cut in his paperwork, he did so because there was not an option for shaved head on the form. Veloz further testified that Soto told him that she recognized the perpetrator from the building. (Id. at 364-75.)
Detective Christopher Killian first interviewed the Sotos on June 5, 2001, three days after the robbery, and at this time Soto told him that the perpetrator had been wearing a light colored tank top, beige or tan pants, and sandals and that he had a muscular build. Soto also told Killian that the perpetrator was someone she had seen frequently in the mornings in the area outside of her apartment building. (Id. at 285-87.)
After the robbery, Soto and her daughter continued to regularly see Petitioner in the vicinity of the apartment building. They both testified that they did not call the police on any of these occasions because they were afraid. (Id. at 53-54, 66, 110-11, 168-69.)
Soto and her daughter saw Petitioner in police custody near their apartment building on July 4, 2001, and approximately two weeks later, Soto's daughter told police that the robber had been taken into police custody on that date. Alfano testified that after Soto's daughter told him that she had seen the perpetrator in police custody on July 4th, he spoke with another officer about Petitioner being taken into custody on that day and obtained a photograph of Petitioner. Soto and her daughter were shown the photograph, and they identified the Petitioner as the robber. On September 11, 2001, Soto and her daughter went to the police precinct and viewed a line-up, and both identified Petitioner as the robber. Soto stated that she decided to tell police the identity of the robber approximately one to two weeks after observing him in police custody because she learned that the police would offer her protection. Soto testified that she was transferred from the Rangel Houses to another public housing project in January 2002. (Id. at 53-67, 116-17, 169-76, 301-03.).
During cross-examination, Soto reiterated her description of the perpetrator as wearing dark clothing, but added that he was wearing light-colored sneakers and had a "mark" on his forehead. Soto stated that she did not tell police about the mark. She testified that the perpetrator was "more or less" six feet tall, was "neither thin nor heavy," was "more than thirty, around forty" years old, and was bald. Soto admitted that she "ha[s] never been able to figure the weight of a person," and was "not good for the age." Soto denied giving police a description of the perpetrator as a twenty-five year old black man with a crew cut who stood six feet, three inches tall and weighed 170 pounds. Soto also denied telling police on the day of the incident that the perpetrator was wearing a blue baseball cap, a multi-colored shirt, blue jeans, and sneakers. Soto further denied telling police a few days after the robbery that the perpetrator had been wearing beige or tan pants, a light-colored tank top, and sandals and had a muscular build. (Id. at 78-79, 82-83, 93-103, 109-10.)
During cross-examination, Soto's daughter denied having told officers following the incident that the perpetrator had been wearing blue jeans, a multi-colored shirt, sneakers, and a blue baseball cap. She also denied telling an officer that the perpetrator weighed 170 pounds, was twenty-five years old, and had a crew cut. Soto's daughter further denied giving a description of the perpetrator a few days after the incident as having worn a light-colored tank top, beige or tan pants, and sandals. She testified that she did not tell police that the robber had a mark or a scar on his forehead. (Id. at 194-201.)
Petitioner presented no evidence in his defense. (Id. at 376-77.)
The jury convicted Petitioner of one count of Robbery in the Second Degree. (Id. at 449-51.) Petitioner was sentenced to a term of ten years imprisonment. (Sentencing Tr., June 24, 2002, 16.)
2. Petitioner's Direct Appeal
On appeal, Petitioner's attorney submitted a brief arguing that the trial court's refusal to allow him to introduce evidence of third-party culpability violated his right to present a defense. The district attorney's office filed a brief arguing that Petitioner's guilt was proven beyond a reasonable doubt and responding to Petitioner's claim.
In a decision dated June 8, 2004, the Appellate Division unanimously affirmed Petitioner's conviction. Collins, 777 N.Y.S.2d 640. The Appellate Division held that Petitioner was not denied the right to present a defense:
The court properly exercised its discretion in precluding, as unduly speculative, evidence of a supposed pattern of robberies in the area of the instant robbery, allegedly committed by a single, unidentified robber not meeting [Petitioner's] description, since there was nothing linking the other robberies with the instant robbery, and nothing to indicate that the hypothetical "pattern" robber committed it. . . . Moreover, defendant was known to the victim and her daughter, and they so advised the responding officers. In addition, they positively identified him at the subsequent lineup.Id. (internal citations omitted).
Petitioner timely sought leave to appeal the Appellate Division's decision to the New York Court of Appeals, asking for review of the issue raised before the Appellate Division. In a decision dated August 11, 2004, the Court of Appeals denied Petitioner's application. Collins, 817 N.E.2d 829.
Discussion 1. The Petition Is Appropriate for Consideration
First, the petition is timely. The Court of Appeals denied Petitioner leave to appeal on August 11, 2004. See Collins, 817 N.E.2d 829. Petitioner's conviction became final ninety days later, on November 9, 2004, the date his time to seek a writ of certiorari to the Supreme Court expired. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 534 U.S. 924 (2001). Petitioner had one year from that date, or until November 9, 2005, to file his petition. 28 U.S.C. § 2244(d)(1)(A). The petition, which was filed on November 4, 2005, was filed before that date and is therefore timely.
Second, Petitioner has exhausted this claim. A federal court may not consider the merits of a claim unless that claim was fairly presented in federal constitutional terms to the "highest state court from which a decision can be had." Daye v. Attorney General, 696 F.2d 186, 191 n. 3 (2d Cir. 1982) (en bane), on remand, 712 F.2d 1566 (2d Cir. 1983), cert. denied, 464 U.S. 1048 (1984). On direct appeal, Petitioner presented his claim to the Appellate Division in federal constitutional terms by alleging the deprivation of a right specifically protected by the Constitution and citing to the federal constitution and federal caselaw throughout his brief. Petitioner then asked the Court of Appeals to review this claim in his letter seeking leave to appeal, and thereby presented the issue to the highest state court that could hear it.
2. The Standard of Review
Because the Petitioner's claim was "adjudicated on the merits" in the state court, see Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (state decision qualifies as an adjudication on the merits where it disposes of petitioner's federal claim on substantive grounds and reduces that disposition to judgment), this Court can grant Petitioner's application for habeas corpus relief only if he can show that the Appellate Division's decision rejecting those claims 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" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., for the Court).
In order to prevail under the "unreasonable application" clause, Petitioner bears a "heavy burden" to show that the Appellate Division identified the correct governing legal principle from the Supreme Court's precedent but "unreasonably applie[d] that principle to the facts" of his case. Id.; accord Christie v. Hollins, No. 01 Civ. 11605, 2003 WL 22299216, at *2 (S.D.N.Y. Oct. 7, 2003). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "Under § 2254(d)(1)'s `unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (quoting Williams, 529 U.S. at 411). Rather, the state court's application of federal law must be "objectively unreasonable." Lockyer, 538 U.S. at 76 (citing Williams, 529 U.S. at 409).
3. The Appellate Division's Holding Was Not an Unreasonable Application of Clearly Established Federal Law
Petitioner argues that the trial court's exclusion of evidence of possible third-party culpability — specifically, evidence regarding other robberies that had been committed in the Rangel Houses during the relevant time period — was an unreasonable application of Supreme Court precedent denying him the right to present a defense.
A criminal defendant "is entitled by the Constitution to a meaningful opportunity to present a complete defense." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (citing Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986); Rock v. Arkansas, 483 U.S. 44, 51-53 (1987))). However, this right is not unlimited and is subject to "reasonable restrictions." Id. at 58. "Central among these restrictions are state and federal rules of procedure and evidence `designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'" Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973); citing Crane, 476 U.S. at 690). Courts may therefore exclude evidence sought to be introduced by a defendant "through the application of evidentiary rules that serve the interests of fairness and reliability. . . ." Id. (citing Taylor v. Illinois, 484 U.S. 400, 410 (1988)).
The Second Circuit has established a two-step process for evaluating whether the exclusion of evidence at trial violated the defendant's constitutional right to present a complete defense. First, the habeas court must assess the "propriety" of the trial court's evidentiary ruling. Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006) (citing Wade, 333 F.3d at 59;Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001)). TheHawkins court explained the second step as follows:
If potentially exculpatory evidence was erroneously excluded, we must look to "whether `the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (quoting United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (alteration in original); see also Wade, 333 F.3d at 59 (stating that "[t]his test applies post-AEDPA").
On the other hand, if the evidentiary ruling was correct pursuant to a state evidentiary rule, our inquiry is more limited. We consider whether the evidentiary rule is "`arbitrary' or `disproportionate to the purposes [it is] designed to serve.'" United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)); see also Holmes v. South Carolina, 547 U.S. 319, ___, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006). A state evidentiary rule is "unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308, 118 S.Ct. 1261.Hawkins, 460 F.3d at 244.
Furthermore, as noted by the Hawkins court, the Supreme Court has had a "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Id. (quoting Crane, 476 U.S. at 689). "[T]he Constitution leaves to the judges who must make these decisions `wide latitude' to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues." Crane, 476 U.S. at 689-90 (internal quotations omitted).
a. Propriety of the State Court's Evidentiary Ruling
New York law regarding the admissibility of evidence of third-party culpability is as follows:
[B]efore permitting evidence that another party committed the crime for which a defendant is on trial, the court must balance the probity of the evidence against the prejudicial effect to the People . . . "The admission of evidence of third-party culpability may not rest on mere suspicion or surmise." The concern is that the evidence of third-party culpability will cause "undue prejudice, delay and confusion" of the evidence presented to the jury. In order to determine whether the evidence will be admitted, the court must allow the defense "to make an offer of proof outside the presence of the jury to explain how it would introduce evidence of third party culpability." Then, the court must allow the prosecutor to make counter-arguments.People v. Schulz, 4 N.Y.3d 521, 528 (N.Y. 2005) (citing and quoting People v. Primo, 96 N.Y.2d 351 (2001)).
In Schulz, 4 N.Y.3d 521, the New York Court of Appeals ruled that the trial court had not abused its discretion in excluding third-party culpability evidence; namely, the photograph of a third party who defendant had claimed was the actual robber. After allowing the defense to make a proffer of evidence concerning the photograph and the prosecution to counter that proffer of evidence, both outside the presence of the jury, the trial court had excluded the photograph because there "was no `sufficient nexus between that suspect or the person that you say committed the crimes, and this crime, to show that that person committed this particular crime.'" Id. at 528. The trial court ruled that it would allow the defense to call two officers to testify concerning the photograph, but such witnesses were never called, nor did the defense cross-examine the two eye-witnesses to the robbery using the photograph. Id. The defense did, however, question a detective during trial regarding a string of robberies being investigated in a nearby precinct at the time of the robbery for which the defendant was being tried. Id. at 526.
Schulz was convicted of first degree robbery after he was identified as the perpetrator at trial by one of two eye-witnesses. Upon review, the Court of Appeals held that "[i]n the circumstances of this case, the trial court did not abuse its discretion in determining that the photograph . . . would have caused undue delay, prejudice and confusion, and properly precluded the evidence." Id. at 529.
By way of comparison, in People v. Primo, 96 N.Y.2d 351, the New York Court of Appeals ruled that third-party culpability evidence had been improperly excluded from a trial for attempted murder. The evidence in question was a ballistics report linking bullets recovered at the crime scene to a gun used by a third party in a later, unrelated assault. The Primo court held that when coupled with proof that the same third party had been present at the scene of the attempted murder for which the defendant was on trial, the probative value of the ballistics report "plainly outweigh[ed] the dangers of delay, prejudice and confusion." Id. at 357.
Here, Petitioner was afforded more than one opportunity to make a proffer of evidence regarding the other alleged Rangel House robberies, (H1 at 130-36; H2 at 12-13; H3 at 178-83), but failed to establish any "facts or circumstances" that would "tend clearly to point out someone besides the [Petitioner] as the guilty party." Schulz, 4 N.Y.3d at 529 (quoting Greenfield v. People, 85 N.Y. 75, 89 (1881)). Defense counsel's offer of proof was that police paperwork indicated that officers were involved in an investigation of a pattern of robberies in the Rangel Houses in the summer of 2001, (H1 at 13; H2 at 12), that officers had questioned Petitioner at the time of his arrest about a pattern of robberies, (H1 at 132), and that there had been a wanted poster or police canvassing of the neighborhood regarding a pattern of robberies, (H3 at 178-79). Defense counsel admitted that he had no specific information regarding these other robberies except that "there were robberies of residents of the Rangel Houses during the summer of 2001 being perpetrated by somebody of a description other than [Petitioner's] description," (H2 at 13), and he "presum[ed]" that the pattern involved "push in of a door, at the door of elderly people," (H3 at 179). Petitioner has contended that the other robberies were "crimes that were very similar in time, place and type of offense to the robbery of Mrs. Soto." (Pet'r's Mem. in Supp. 36.) However, Petitioner failed to offer affirmative evidence that there was, in fact, a pattern of robberies committed in the Rangel Houses during the summer of 2001. Nor did Petitioner offer evidence that these alleged other robberies were similar to the Soto robbery with respect to such details as style of robbery, type of victim, or time of day.
Furthermore, defense counsel asserted that evidence of other robberies of a similar character in the same community as the Soto robbery would be "highly relevant" if one of the descriptions given by Soto matched those given of the perpetrator of the other robberies. (H3 at 181.) Yet defense counsel never provided the court with the descriptions given in the other robberies and therefore never demonstrated the relevance of the evidence sought to be admitted.
On more than one occasion, the trial court indicated that it would entertain further argument on the issue. (H2 at 15; H3 at 183.) Defense counsel, however, did not seek to reopen the discussion on this issue or make a more definite showing as to the admissibility of this evidence. Counsel asked Officer Alfano if the content of a discussion with other officers concerned "a pattern of robberies," a question that the court promptly ordered the jury to disregard. (Trial Tr. at 334.) Defense counsel did not seek to pursue this avenue outside of the hearing of the jury. (Id.)
Because Petitioner failed to make any showing that the other robberies were connected to the Soto robbery in either time, type of victim, manner of robbery, or perpetrator, the trial court did not act improperly under New York law in excluding such evidence as speculative. See Bradley v. Burge, No. 06 Civ. 0040(JGK), 2007 WL 1225550, at *6 (S.D.N.Y. Apr. 19, 2007) (denying habeas petition on grounds that third-party culpability evidence was properly excluded: "The fact that there were other rapes in the area and that another person was arrested for those rapes does not suggest beyond speculation that the other person committed the rapes at issue in this case."); Ramos v. Phillips, No. 104-CV-1472-ENV, 2006 WL 3681150, at *7 (E.D.N.Y. Dec. 12, 2006) ("Even a minimal finding of potential delay, prejudice, or juror confusion would have sufficed to justify the exclusion.").
Since after Primo, New York courts employ traditional balancing in determining the admissibility of third-party culpability evidence, the trial court's decision here is one upon which the Supreme Court has expressed "reluctance to impose constitutional constraints." Hawkins, 460 F.3d at 244 (quoting Crane 476 U.S. at 689). It also involves the type of potentially prejudicial evidence that "the Constitution leaves to the judges who must make these decisions `wide latitude' to exclude." Crane, 476 U.S. at 689-90.
Petitioner has contended that defense counsel was effectively precluded from obtaining the relevant evidence from the prosecution and that the trial court rendered its ruling on the issue without any inquiry on its own part. (Pet'r's Mem. in Supp. 14 n. 2, 53-55.) Specifically, during one of the pretrial hearings, defense counsel attempted to question Officer Alfano about an investigation of robberies in the Rangel Houses, and the court sustained the prosecution's objection to that question. (H1 at 77-78.) In addition, according to defense counsel, one of the officers involved in Petitioner's arrest who testified during the trial was also involved in the investigation of the alleged other Rangel House robberies. (See H2 at 12-13.) However, that officer was not questioned by the court about these alleged other robberies. (Pet'r's Mem. in Supp. 53-54.)
Finally, requests by defense counsel and the court for information regarding the alleged pattern of other robberies was met with strong opposition from the prosecution:
THE COURT: Miss Nochlin, could you do this — again, you have access to the information; the defense doesn't — if there are robberies in the [R]angel Houses during June, July, of last year — May, June and July of last year that fit a certain pattern and that pattern is similar to the robbery of Miss Soto — in other words, the same type.
MS. NOCHLIN: Judge, they didn't even show this defendant to other witnesses. There is no —
THE COURT: Fine.
MS. NOCHLIN: This is a fishing expedition.
THE COURT: Fine, But I'm just saying if there is — I don't have the information. You would agree with me there might be a certain situation under which this would be admissible at trial? If there was someone going around robbing people in those projects in a certain manner the same as the way in which Miss Soto was robbed, you would agree, if those were the facts, that might be admissible? We would have to have a discussion about that. You are saying it doesn't exist.
MS NOCHLIN: I'm presenting that case to say that I should not be responsible for looking at every open 61 in the [R]angel Projects or anywhere else to provide to counsel so that he can try, as Primo says, to confuse the jury with irrelevant facts.
THE COURT: Okay. I'm not saying you have to do that.
MS. NOCHLIN: That's why I presented Primo. And now you are asking me to now look through every 61 that might exist to see if there is anyone who might have robbed someone in [R]angel.
THE COURT: You didn't hear me say that.
MS. NOCHLIN: I have to do that in order to figure out if there were a pattern of robberies in May, June and July in [R]angel.
THE COURT: Let me backup. We will discuss this on April 10th. I', saying between now and April 10th you can each work on your arguments, present your arguments and we will discuss it further.
(H1 at 132-36.) Petitioner has contended that the requisite information could have been obtained by questioning those officers involved in either the canvassing or distribution of the wanted poster related to the alleged other robberies. (Pet'r's Mem. in Supp. 54-55.) When the pretrial hearing was reconvened, however, a different judge ruled that "all you can argue is an inconsistency of the description, not that the description relates to some description that involved another robbery which is not the subject of this [case]." (H3 at 181.)
It is therefore arguable that while the ultimate evidentiary ruling may not have been improper or erroneous, it was rendered so by a prior erroneous ruling of the court — that being the failure to obtain and review any additional information from the police regarding any pattern of other robberies that may have been taking place in the Rangel Houses during the summer of 2001.
b. Materiality of the Excluded Evidence
Assuming, arguendo, that the trial court's evidentiary ruling was erroneous or de facto erroneous based on an underlying erroneous ruling, see supra, Petitioner is only entitled to relief upon a showing that the excluded evidence was material.See Ward, 333 F.3d at 58-59. To establish that the exclusion of evidence constituted a denial of the right to present a defense, a habeas petitioner must show that "the omitted evidence [evaluated in the context of the entire record" creates a reasonable doubt that did not otherwise exist." Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996) (quoting United States v. Agurs, 427 U.S. 97, 112 (1976)) (alterations in original). In light of the vague and speculative quality of the evidence regarding other robberies, the two eyewitness identifications of Petitioner as the robber, and any problems with the identification of the perpetrator that were presented at trial, Petitioner cannot meet this standard.
Petitioner has contended that "it is certain that the excluded evidence would have produced an acquittal," both because the evidence was "highly probative" and "the identification evidence was weak." (Pet'r's Mem. in Supp. 45.) However, since details were never revealed, the probative nature of the evidence of other robberies remains at issue. With respect to the identification evidence presented at trial, Petitioner has emphasized that Soto gave varying descriptions of the perpetrator, characterizing these descriptions as "distinctly different." (Id.) Soto asserted that she recognized the perpetrator from around the housing complex. Soto's daughter likewise indicated that she recognized the perpetrator as someone who was "always" outside the building. Even if they were unable to precisely describe his features, the Sotos testified that they were familiar with Petitioner. The most significant inconsistencies in Soto's description of the perpetrator concerned his age and clothing, and at trial Soto denied having given the previous descriptions.
The jury was made well aware of the problems with the identification and still chose to credit the Sotos' identification and convict Petitioner. The inconsistencies in Soto's description of the perpetrator, as well as other issues going to her and her daughter's credibility, were highlighted at trial, and defense counsel argued during summation that these discrepancies rendered their identification of Petitioner unreliable. (Trial Tr. at 382-93, 399-400.)
As a result, the Petitioner cannot sufficiently show that when "evaluated in the context of the entire record," which included positive identification of the Petitioner by the victim and a second eye-witness and extensive coverage of the inconsistencies in the eye-witnesses' description of the perpetrator, the excluded evidence of possible third-party culpability would have "create[d] a reasonable doubt that did not otherwise exist."Justice, 90 F.3d at 47; see Ramos, 2006 WL 3681150, at *7 (E.D.N.Y. Dec. 12, 2006) (denying habeas on grounds that even if exclusion of third-party culpability evidence was erroneous, due to its weak probative value, it was not so material as to deprive the petitioner of a fair trial).
Furthermore, the cases relied on by Petitioner are generally distinguishable, as these cases concerned direct appeals rather than habeas petitions and involved the exclusion of very specific evidence that had a demonstrable connection to the charged crimes. See, e.g., United States v. Robinson, 544 F.2d 110 (2d Cir. 1976), cert. denied, 434 U.S. 1050 (1978) (finding it error to exclude evidence that police had concluded that the robber depicted in a bank surveillance photo resembled a specific person who was not the defendant).
c. Infringement on a Weighty Interest of the Accused
Assuming, arguendo, that the trial court's evidentiary ruling was proper under New York's evidentiary rules, under the requisite Wade inquiry, it must still be determined whether the applied evidentiary rule "has infringed upon a weighty interest of the accused." Scheffer, 523 U.S. at 308. As to what constitutes a "weighty interest," the Scheffer court cited toRock, 483 U.S. at 58, which addressed a defendant's right to testify in his own defense, as well as Chambers, 410 U.S. at 302, and Washington v. Texas, 388 U.S. 14, 22-23 (1967), which both addressed a defendant's right to present witnesses at trial.
The evidentiary rule regarding the admissibility of third-party culpability evidence that was applied in this case did not infringe upon such a "weighty interest of the accused."
Conclusion
Based on the foregoing reasoning, Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. The Appellate Division's holding that Petitioner was not denied the right to present a defense as a result of the exclusion of third-party culpability evidence at trial was neither contrary to, nor an unreasonable application of clearly established federal law.
As Petitioner has not made a substantial showing of the denial of a Constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.