Opinion
No. 00 Civ. 8933 (RJH)(KNF).
October 29, 2004
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Before the Court is the petition of Rafael Mojica ("R. Mojica") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Mojica alleges that his confinement by the state of New York is unlawful because the trial court's jury instruction on the defense of justifiable use of physical force to defend another person: 1) was erroneous and did not convey the applicable law to the jury, thereby violating the petitioner's fundamental due process right to a fair trial; and 2) differed materially from the instruction the trial court had announced an intention to give, depriving the petitioner of the opportunity to make a closing statement addressing all of the matters the jury was instructed to consider, and, thereby, violating his due process right to present a defense.
The respondent opposes the petitioner's application for habeas corpus relief on the grounds that: 1) the trial court's jury instruction was not erroneous; and 2) even if it was erroneous, any error was harmless and did not violate R. Mojica's due process rights.
R. Mojica's petition is analyzed below.
II. BACKGROUND
R. Mojica's incarceration arises out of an April 4, 1994 altercation near the intersection of East Gunhill Road and Putnam Place in Bronx County, New York, during which he shot and killed Joseph Esperon ("Esperon"). The petitioner's brother, Nelson Mojica ("N. Mojica") owed Esperon twenty dollars. At trial, N. Mojica testified that Esperon had assaulted him on several prior occasions, that Esperon had threatened to harm him if the debt was not repaid, and that R. Mojica was aware of at least some of these encounters and threats. N. Mojica testified further that he feared Esperon, in part, because of their difference in size.
N. Mojica stood five feet, ten inches tall and weighed approximately 140 pounds, while Esperon stood approximately six feet, three inches tall and weighed at least 300 pounds, according to testimony given at trial.
On the afternoon of the altercation, Esperon and his girlfriend, Diane Butler ("Butler"), were on one side of East Gunhill Road, when Esperon noticed N. Mojica on the opposite side of the street. Esperon asked N. Mojica when he was going to repay the debt. The two men exchanged words, and, according to N. Mojica, Esperon began to approach N. Mojica and threatened that he was "going to fuck you up and your brother" if N. Mojica did not repay the debt. N. Mojica fled the scene, proceeding west on East Gunhill Road, toward the apartment building in which he and R. Mojica resided, which was a short distance away. Esperon and Butler proceeded in the opposite direction.
When N. Mojica reached his apartment building, he retrieved a wooden baseball bat from nearby bushes. He then proceeded east on East Gunhill Road, in the direction of Esperon and Butler. According to N. Mojica's trial testimony, the petitioner emerged from the apartment building at about this time, noticed N. Mojica walking away with the bat in hand and, without communicating with N. Mojica, followed a short distance behind him.
N. Mojica caught up with Esperon near the intersection of East Gunhill Road and Putnam Place, one or two blocks away from the site of their earlier exchange. Although trial testimony accounts of what occurred next differ, it is undisputed that N. Mojica swung the bat at Esperon, but did not strike him. Esperon then picked up a large metal garbage can from a nearby sidewalk and, according to N. Mojica, raised it above his shoulders, as if he was about to throw it at N. Mojica or to strike him with it. The petitioner, who was a short distance away, then fired a number of shots from a gun, two of which struck Esperon and injured him fatally. R. Mojica and N. Mojica fled the scene, but were apprehended by police officers a short time later.
A Bronx County grand jury returned an indictment charging R. Mojica with: two counts of murder in the second degree (N.Y. Penal Law § 125.25, [2]) and one count of manslaughter in the first degree (N.Y. Penal Law § 125.15), for causing the death of Esperon; one count of criminal use of a firearm in the first degree (N.Y. Penal Law § 265.09[a]); one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03); and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02). N. Mojica was charged with: one count of attempted assault in the first degree (N.Y. Penal Law § 120.10); one count of attempted assault in the second degree (N.Y. Penal Law § 120.05), for attempting to injure Esperon with the bat; and one count of criminal possession of a weapon in the fourth degree (N.Y. Penal Law § 265.01).
R. Mojica and N. Mojica proceeded to trial, jointly, before a jury in New York State Supreme Court, Bronx County. At the trial, R. Mojica conceded, through his counsel's closing statement to the jury, that he shot Esperon intentionally. However, the theory of his defense, which was premised on New York Penal Law § 35.15, was that his use of force was justified because he had acted in defense of his brother. N. Mojica also relied upon a defense of justification. He contended that he had acted in self-defense.
At the request of both defendants, the trial court instructed the jury about the defense of justification. Following its instructions to the jury about the elements of the charged crimes, the trial court began its explanation of the defense of justification. In this portion of the jury instruction, the trial court told the jury that a person may lawfully use physical force — and, accordingly, rely upon the defense of justification — when he reasonably believes such force to be necessary to defend himself or another from an imminent use of physical force by a third person. The trial court also explained that in order for a person to use deadly physical force, he must also reasonably believe that such force is necessary to defend himself or another from an imminent use of deadly physical force by a third person.
However, the trial court also told the jury that: (1) the defense of justification was ordinarily referred to as "self-defense;" (2) "self-defense . . . is for the use of ordinary force, not force that is going to cause death," Tr. 790; and (3) "only the person who uses deadly physical force in his own defense is entitled to claim that he was acting in self-defense." Tr. 792. The trial court referred repeatedly to the defense asserted by the petitioner as "self-defense," although it also used the terms "justification" or "justification of self-defense" in a few instances. The trial court instructed the jury further that a defendant may not rely upon the defense of justification if he was the initial aggressor. The trial court advised the jury that "the person who takes the offensive, which he is not himself being or is about to be attacked and strikes or attempts to strike the first blow is the initial aggressor." Tr. 793.
"Tr." refers to the trial transcript.
The trial court also instructed the jury regarding the mens rea required for the justifiable use of deadly physical force. In order to use deadly physical force against another, the trial court explained, a person must reasonably believe that the use of such force is "necessary to defend himself or the other person from harm — in this instance from the deceased — and that what he reasonably believes to be the imminent use of deadly physical force against him or a third person." Tr. 794.
Thereafter, the trial court told the jury that:
The law provides that even if he reasonably believes both of the above, a person may, nevertheless, not use defensive deadly physical force if he knows that he can avoid it.Id.
Although this part of the instruction mentions only subjective reasonableness, it appears that the phrase "both of the above" may have been intended to refer to the dual requirements of objective and subjective reasonableness. Other parts of the instruction address objective reasonableness.
The trial court concluded its instructions to the jury with a summary of the law of justification that indicated, among other things, that the jury must determine whether R. Mojica had an objectively and subjectively reasonable belief that deadly physical force was necessary to defend his brother against Esperon. Tr. 796-98.
The jury returned a verdict of guilty against R. Mojica for one count of murder in the second degree and one count of criminal possession of a weapon in the second degree. R. Mojica was sentenced to concurrent terms of incarceration: twenty years to life imprisonment for the second degree murder conviction and five to fifteen years imprisonment for the second degree weapon possession conviction.
R. Mojica appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"). He urged that court to upset his conviction because the trial court, inter alia: 1) denied the petitioner his Fourteenth Amendment right to an effective summation when it instructed the jury that R. Mojica had a duty to "avoid" the use of deadly physical force after the trial court had advised counsel that it would not instruct the jury that R. Mojica had a duty to retreat; 2) failed to instruct the jury on the law relevant to that aspect of the justification defense that pertains to the "defense of another person," thereby violating R. Mojica's Fourteenth Amendment right to a fair trial; and 3) diminished the prosecution's burden of proof and violated R. Mojica's Fourteenth Amendment right to a fair trial by failing to instruct the jury to make separate determinations with respect to each defendant regarding who was an initial aggressor. The Appellate Division affirmed the petitioner's conviction. It found, among other things, that the trial court's justification charge, "when read as a whole, was both legally correct and applicable to the facts, and could not have caused any prejudice to [the petitioner]." People v. Mojica, 264 A.D.2d 693, 696 N.Y.S.2d 30, 31 (App.Div. 1st Dep't 1999). The petitioner sought leave to appeal from the Appellate Division's determination to the New York Court of Appeals. On February 29, 2000, an associate judge of the New York Court of Appeals denied the petitioner's application for leave to appeal to that court. See People v. Mojica, 94 N.Y.2d 905, 707 N.Y.S.2d 389 (2000).
Thereafter, R. Mojica filed the instant petition for a writ of habeas corpus. In support of the petition, he raises the same points of federal law that he raised on direct appeal to the Appellate Division.
III. DISCUSSION
Erroneous Jury Instruction"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985) (citing Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400). In particular, when a habeas corpus petitioner alleges that a jury instruction violated his right to due process, the question is whether the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process."Cupp, 414 U.S. at 147, 94 S. Ct. at 400.
The fact that federal habeas corpus relief does not lie for errors of state law, per se, "does not mean, however, that errors under state law cannot result in cognizable violations of a constitutional right to due process." Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001). The specific requirements of due process often depend on state law. Id. Once a state has promulgated laws that define the elements of crimes and the elements of defenses to those crimes, "federal due process [requirements] protect a defendant from conviction unless he is shown in a fair proceeding to have violated those laws." Id. Accordingly, "a finding that [a defendant] was erroneously deprived of a jury instruction to which he was entitled under state law could give rise to a conclusion that he had been deprived of due process." DiGuglielmo v. Smith, 366 F.3d 130, 137 (2d Cir. 2004). However, federal habeas corpus relief is not available when a challenge to a trial court's jury instruction regarding a defense "concerns only what state law required as to its contents." See id.
In the case at bar, R. Mojica contends that the contents of the trial court's jury instruction regarding the defense of justification was erroneous and confusing and did not convey the relevant law to the jury. However, these contentions challenge the content of a jury instruction about a defense created by state law. Cf. N.Y. Penal Law § 35.15. Accordingly, they cannot be the bases for federal habeas corpus relief. See DiGuglielmo, 366 F.3d at 137.
Right to Present a Defense
The petitioner contends that when the trial court delivered a "duty to avoid" instruction to the jury after it indicated that it would not charge the duty to retreat, he was denied the opportunity to give a closing statement addressing the duty to avoid. However, the Appellate Division determined that the duty to avoid is part of the reasonableness element of the defense of justification. See People v. Mojica, 264 A.D.2d at 693, 696 N.Y.S.2d at 31-32. The petitioner has not identified any state statute or decisional law with which the Appellate Division's determination is inconsistent. Therefore, no basis exists upon which to conclude that the Appellate Division's determination is erroneous as a matter of state law. Since the duty to avoid is part of the reasonableness element of the justification defense, an element about which R. Mojica surely expected the trial court to instruct the jury, his contention, that he was denied an opportunity to address an aspect of the reasonableness element in his closing statement to the jury, lacks merit. Consequently, the petitioner is not entitled to habeas corpus relief on this claim.
IV. RECOMMENDATION
For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, 500 Pearl Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Holwell. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).