Opinion
No. 03 Civ. 2741 (SAS)(KNF).
November 18, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Efraim Soto ("Soto"), the petitioner, has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Soto contends that his confinement by the state of New York is unlawful because his right to due process was violated when, at his trial, the presiding state judicial officer gave a "missing witness" instruction to the jury concerning a person whom Soto contends was merely a casual acquaintance of his and not a person under his control. The respondent opposes Soto's application for a writ of habeas corpus. He contends that the claim made by Soto, in his application for the writ, is meritless.
II. BACKGROUND
Soto was charged in two New York County indictments. The grand jury alleged in each indictment that Soto had violated New York Penal Law § 220.39, criminal sale of a controlled substance in the third degree. Soto proceeded to trial before a petit jury on one indictment and, after a verdict of guilty was rendered, determined to plead guilty to the charge contained in the remaining indictment.
In the case that proceeded to trial, the jurors learned that an undercover officer purchased two glassine envelopes containing heroin from Soto for twenty dollars. After the purchase was effected, the undercover officer transmitted a description of the seller to other officers who were in the vicinity. The description was keyed to the seller's clothing and, in particular, the color of the jacket the seller wore. A short time later, Soto was apprehended and two ten dollar bills, which had previously been recorded for use by the undercover officer as buy money, were recovered from Soto.
Soto testified in his own behalf at his trial. He informed the jurors that shortly before his arrest he had encountered Lydia Cruz ("Cruz"), a friend and neighbor of Soto's. Cruz was known to Soto to be a drug user. She asked Soto whether anyone was "out" which, Soto told the jurors, based upon his experience as an ex-drug addict, he understood to be an inquiry concerning whether anyone was selling drugs out on the street. As a result of Cruz's inquiry, Soto approached another of his friends, whom he identified as "Jose," and tendered a fifty dollar bill to Jose in order to obtain one glassine envelope of heroin for Cruz. Jose gave Soto two ten dollar bills and a twenty dollar bill but did not give him a glassine envelope of heroin because police officers arrived on the scene. Soto's trial testimony suggested that, based upon his interaction with Jose, the undercover officer's pre-recorded buy money came to be in Soto's possession.
On the basis of Soto's testimony concerning his encounter with Cruz and his attempt to purchase heroin for her using his own money, the prosecutor requested that the trial court give the jury a "missing witness" instruction, which would permit the jurors to draw an adverse inference against Soto for failing to present Cruz as a defense witness at his trial. The trial court granted the prosecutor's request and gave a "missing witness" instruction to the jury. Soto objected to the "missing witness" jury instruction and, on his direct appeal from his conviction to the New York State Supreme Court, Appellate Division, First Department, he raised the matter as an error by the trial court. The alleged error was the principal ground upon which Soto contended that his conviction should be upset by the Appellate Division. However, in making the claim that the trial court erred when it gave the "missing witness" instruction to the jury, Soto also argued to the Appellate Division that the trial court's error provided the prosecutor with a platform from which to argue to the jury, improperly, that an adverse inference should be drawn by the jurors against Soto for his failure to have Cruz testify on his behalf at the trial.
The Appellate Division affirmed Soto's conviction. It found that, in light of Soto's testimony that Cruz was his friend and next door neighbor, for whom he was willing to purchase drugs with his own money, it was reasonable to presume that Cruz would testify favorably for Soto at his trial and, therefore, Soto had "control" over Cruz as that term is used in connection with the "missing witness" doctrine. Furthermore, the Appellate Division found, based upon its review of the trial record, that Cruz would have provided the jury with material non-cumulative testimony had she been called as a witness for the defense. Therefore, the appellate court found that no error had been committed by the trial court when it gave the jury a "missing witness" instruction. See People v. Soto, 297 A.D.2d 567, 747 N.Y.S.2d 160 (App.Div. 1st Dep't 2002). Soto sought leave to appeal from the Appellate Division's determination to the New York Court of Appeals. Soto's application was denied by an associate judge of that court. See People v. Soto, 99 N.Y.2d 564, 754 N.Y.S.2d 217 (2002). Thereafter, Soto made the instant application for a writ of habeas corpus.
"As applied to the missing witness doctrine, the term 'control' does not have its common meaning, but is a term of art involving the relationship between the witness and the parties. 'Control' means favorable to or under the influence of one party and hostile to another." People v. Jules, 2 Misc.3d 1002(a), ___ N.Y.S.2d ___ (N.Y. Crim. Ct. 2004) (citations omitted).
III. DISCUSSION
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
In the case at bar, the Appellate Division decided Soto's due process claim, premised upon the trial court's determination to give a "missing witness" jury instruction, on the merits. Therefore, in considering whether Soto is entitled to habeas corpus relief, the court typically would have to determine whether the Appellate Division's adjudication resulted in a decision that was contrary to or involved an unreasonable application of federal law as determined by the Supreme Court or was based upon an unreasonable determination of the facts in light of the evidence presented at Soto's trial. However, since the ground upon which Soto seeks the issuance of a writ of habeas corpus involves a claim of error respecting a state trial jury instruction, Soto is not entitled to habeas corpus relief unless he can establish that the challenged jury instruction "by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-147, 94 S. Ct. 396, 400 (1973). This is so because the adequacy of a state court's jury instruction is a matter of state law, see Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117 (1993), and habeas corpus relief is only available for violations of federal law. See 28 U.S.C. § 2254(a); Rasul v. Bush, ___ U.S. ___, 124 S.Ct. 2686, 2693 (2004).
Under New York law, the party seeking a "missing witness" jury instruction must show that the witness in question could be expected to have relevant knowledge and to give testimony favorable to the opposing party. The party opposing the jury instruction can defeat the request by showing, inter alia, that the witness is not under the opposing party's control, is not available to that party, is not knowledgeable about a material issue pertinent to the trial or that the witness' testimony would be cumulative to other evidence. See People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 657-58 (1994); People v. Gonzalez, 68 N.Y.2d 424, 427-28, 509 N.Y.S.2d 796, 799-800 (1986). The record evidence demonstrated that Cruz would have been expected to give favorable, noncumulative testimony on Soto's behalf. She was a friend and neighbor of Soto's. In addition, Soto attempted to purchase drugs for her using his own funds and, in doing so, placed himself in criminal jeopardy. Furthermore, Cruz was knowledgeable about a material issue in the case, to wit, whether Soto was a drug seller. Moreover, no evidence was adduced at the trial that demonstrated that Cruz was not available to be a witness.
A state prisoner seeking habeas corpus relief based upon a claimed improper jury instruction faces a substantial burden.See DelValle v. Armstrong, 306 F.3d 1197, 1200-1201 (2d Cir. 2002) (citing Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1737). He or she must show more than that "the instruction is undesirable, erroneous or even universally condemned," but rather must establish that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 146-147, 94 S. Ct. at 400. Here, the evidence identifying Soto as the seller of heroin to an undercover officer was strong. Soto wore clothing that matched the clothing of the seller, he was apprehended shortly after the sale and possessed the pre-recorded buy money. Based upon the Court's review of the jury instructions, as a whole, in the circumstances of this case, it cannot be said that the trial court's exercise of its discretion in giving a "missing witness" jury instruction so infected the entire trial such that Soto's conviction offends due process.See Cupp, supra.
In addition, in the instant case, Soto has not made any effort to demonstrate how the determination reached by the Appellate Division was contrary to or involved an unreasonable application of federal law. Furthermore, he has not made any showing that the action taken by the Appellate Division on his appeal was based upon an unreasonable determination of the facts in light of the evidence presented at his trial. Therefore, the Court finds that Soto has not met the burdens placed upon him either by statute, 28 U.S.C. § 2254(d), or by Supreme Court decisional law such that he would be entitled to habeas corpus relief.
Inasmuch as the Court finds that, based on the record as a whole, it was proper for the trial court to give the jury a "missing witness" instruction, it was equally proper for the prosecution, knowing that such an instruction would be given by the court, to make reference to Cruz's absence from the trial during its final argument to the jury and to ask the jury to draw an adverse inference against Soto based on her absence.
IV. RECOMMENDATION
Based on the above, it is recommended that Soto's application for a writ of habeas corpus 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 Shira A. Scheindlin, 500 Pearl Street, Room 1620, 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 Scheindlin. 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).