Opinion
No. 01 cv. 10708 (JSM)
April 25, 2002
OPINION AND ORDER
Daniel Diaz, who was convicted after a jury trial in the New York State Supreme Court, Bronx County, of Murder in the Second Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends that the trial court: (1) impermissibly limited his voir dire of the potential jurors; (2) erroneously admitted hearsay statements of an anonymous caller, who told the police that the deceased had written the license plate number of his attackers' car on a paper bag, and erroneously entered the paper bag into evidence; (3) improperly limited the cross-examination of a police officer; (4) committed errors in its charge on reasonable doubt and in its summary of the testimony of an eyewitness; and (5) erred in a pre-trial ruling concerning the portions of petitioner's prior criminal record that could be used to cross-examine him should he choose to testify.
In addition to contesting petitioner's claims on the merits, the State argues that the Court should not consider certain of petitioner's claims because he failed to exhaust his state remedies in that the claims were not presented to the highest state court. However, 28 U.S.C. § 2254 (b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are so lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Before turning to petitioner's specific claims it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 289 (2000).
None of the claims asserted by the petitioner meets this standard.
The scope of voir dire is generally committed to the sound discretion of the trial judge. Ham v. South Carolina, 409 U.S. 524, 528, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973) (recognizing "the traditionally broad discretion accorded to the trial judge in conducting voir dire");Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). In this case the court precluded defense counsel from telling potential jurors the content of an exculpatory statement made by petitioner after his arrest, which was ultimately introduced by the prosecutor because it contained an admission that petitioner had been at the scene of the murder. Such a ruling was well within the trial court's discretion. Indeed, in cases tried in this Court jurors are never questioned about the details of the evidence to be presented.
Petitioner's claims that the testimony concerning the contents of an anonymous call to the police and the brown envelope were improperly admitted are without merit. In that call, the caller told the police that the deceased had an altercation with two men earlier in the day and had written the license plate number of their car on a brown paper bag, which was admitted into evidence. The purpose of admitting the content of the call and the bag was to provide background information on how the police came to question petitioner, whose mother was the registered owner of the car. At the time the statement was received, the court gave a limiting instruction that it was not being admitted for its truth. But even if the statement had been admitted for its truth, there would be no constitutional error.
The most critical aspect of the testimony was that the deceased had written down a license plate that was ultimately traced to the petitioner. The petitioner, in his statements to the police, had admitted that he was at the scene of the murder, but claimed that another individual was the shooter.
It is well settled that "the admission of such a statement in violation of hearsay rules does not necessarily result in denial of confrontation rights." Rado v. Connecticut, 607 F.2d 572, 578 fn.4 (2d Cir. 1979). The erroneous admission of hearsay violates due process only if the evidence is crucial to the prosecution's case or devastating to the defense.Jackson v. Scully, 781 F.2d 291, 295 (2d Cir. 1986); Rado, 607 F.2d at 579; United States v. Puco, 476 F.2d 1099, 1104 (2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973). The hearsay statement at issue here was in no sense crucial to the prosecution or devastating to the defense.
There is also no merit to petitioner's claim that the limitations that the trial court placed on his cross-examination of a police officer violated his due process rights. The question whether the exclusion of evidence violates a defendant's due process right to present a defense depends upon whether "the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist." Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001) (citingJones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000)). There is no reason to believe that, had the court's evidentiary rulings been different, the jury would have been left with a reasonable doubt as to petitioner's guilt. —
For petitioner to prevail on his claim that errors in the trial court's charge denied him due process, he must demonstrate, "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 945. Ct. 396; see also Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting and reaffirming Cupp).
While the reasonable doubt charge in this case is not in conformity with the charge generally approved for use in the federal court, since it refers to a reasonable doubt as one for which a reason can be given, it was similar to charges that the Second Circuit has sustained in the face of similar due process claims. Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir. 1996) (citing United States v. Davis, 328 F.2d 864, 867-68 (2d Cir. 1964) (Friendly, C.J.)); Barber v. Scully, 557 F. Supp. 1292, 1296 (S.D.N.Y. 1983), aff'd, 731 F.2d 1073 (2d Cir. 1984)); see, e.g., Pinto v. Stinson, No. 96-2655, 129 F.3d 114 (table), 1997 WL 664866 at *1 (2d Cir. Oct. 21, 1997).
There was also no violation of petitioner's due process rights in the portion of the charge in which the judge summarized the testimony of an eyewitness. Even if the summary was inaccurate, the judge ultimately told the jury to disregard his remarks and rely on their own recollections.
Although petitioner complains that the trial court erred in its pretrial rulings concerning the prior offenses that the prosecutor could confront him with on cross-examination, he did not testify at trial. Since he did not testify, the pretrial rulings are not a basis for habeas corpus relief. Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.