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finding probable cause to arrest where the incident only lasted "a few seconds," holding that "`the endurance of the . . . encounter . . . does not require a different result"
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00 Civ. 3286 (AGS) (JCF).
April 19, 2001.
REPORT AND RECOMMENDATION
Jose Torrez, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery in the first degree. He claims that:
(1) the police arrested him without probable cause, violating his Fourth Amendment rights;
(2) identification testimony was improperly admitted; and
(3) he received ineffective assistance of counsel.
For the following reasons, I recommend that the petition be denied.
Background
On March 28, 1993, at approximately 11:20 a.m., Ivelesse Silva was walking along University Avenue in the Bronx when she noticed a man standing in front of a building on the corner of 179th Street. (W. Tr. 50-51). According to Ms. Silva, this man was Hispanic, of medium to thin build, and wore a blue hooded sweatshirt with the hood up, a black jacket, and jeans. (W. Tr. 52-53, 64-65). The man walked ahead of Ms. Silva, and as she passed him, he grabbed her. (W. Tr. 50-52). Ms. Silva pushed against the perpetrator, but he pinned her against a nearby car with both hands. (W. Tr. 50, 53). While they were face to face, the perpetrator pulled out a small silver gun, pressed it against Ms. Silva's chest, and asked her in Spanish for her money and her jewelry. (W. Tr. 50, 54, 65). She gave him forty dollars and a ring, and he then fled into a nearby building. (W. Tr. 50-51, 54). Ms. Silva called emergency services and described the suspect. As she was talking on the phone, the perpetrator came out of the building and ran toward Aqueduct Park. (W. Tr. 55-56).
"W. Tr." refers to the transcript of the Wade/Mapp hearing. A Mapp hearing refers to a hearing held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine whether a search and seizure is consistent with the Fourth Amendment to the United States Constitution. A Wade hearing is held pursuant to United States v. Wade, 388 U.S. 218 (1967), to determine whether an identification procedure was unduly suggestive.
Detective John Howard and his partners received a radio broadcast describing the robber and drove to the park. There, Detective Howard observed Mr. Torrez wearing a black leather jacket and blue hooded sweatshirt. (W. Tr. 8-9, 14). He fit the description of Ms. Silva's attacker and was at a location near the crime scene shortly after the incident had occurred. (W. Tr. 9, 14, 17). No one else on the street at the time fit the description. (W. Tr. 13, 15-16). The detective stopped Mr. Torrez and identified himself as a police officer. (W. Tr. 18).
He also patted Mr. Torrez down but found no gun. (W. Tr. 10-11, 15, 18).
Meanwhile, Officer Miguel Ramos and his partner heard the broadcast about the robbery and drove to the scene of the crime where Ms. Silva gave them a description of her attacker. (W. Tr. 30). She again stated that he was a Hispanic man wearing a black leather jacket and jeans. (W. Tr. 31-32). Officer Ramos took Ms. Silva in the patrol car to canvass the neighborhood. (W. Tr. 33). A few blocks from the scene Detective Howard stood in the intersection talking to Mr. Torrez. (W. Tr. 33, 37). There were several police cars in the area. (W. Tr. 69). When she spotted the petitioner, Ms. Silva began screaming. After the officers calmed her, she identified Mr. Torrez as her assailant. (W. Tr. 57-58). She was approximately ten feet away from Mr. Torrez at this time. (W. Tr. 69).
On April 19, 1993, Mr. Torrez was indicted for Robbery in the First Degree, N.Y. Penal Law § 160.15[4]. On March 9, 1995, a Wade/Mapp hearing was held in New York State Supreme Court, Bronx County to consider the petitioner's motion to suppress Ms. Silva's identification testimony. The petitioner claimed that the identification procedures were unduly suggestive because of the presence of several police officers and because Mr. Torrez was on his hands and knees. (W. Tr. 82-83). He also argued that the in-court identification was not independently reliable because of the brief description Ms. Silva gave of her assailant, her emotional state at the time of the incident, and the fact that she hesitated in identifying him in court. (W. Tr. 74-77). Justice Lawrence H. Bernstein ruled that Ms. Silva's out-of-court identification was made pursuant to a "prompt on the scene show-up" of a properly detained person and was not impermissibly suggestive. (W. Tr. 87-88).
Additionally, Justice Bernstein found Ms. Silva's in-court testimony independently reliable even though Ms. Silva was hesitant to point out the petitioner in the courtroom during the hearing. (W. Tr. 88). Justice Bernstein concluded that the "hesitation in this Court's opinion came not from doubt but from nervousness and fear and being overwhelmed by the entire situation" and did not undermine the positive identification that she made. (W. Tr. 88-89). Thus, the motion to suppress the identification was denied, and the petitioner's jury trial commenced on March 21, 1995.
Prior to jury selection, the petitioner's attorney requested a Sandoval hearing to suppress prior convictions from being introduced at trial. At the hearing, the judge ruled that if
A Sandoval hearing is a pretrial proceeding in which a defendant, before deciding whether to testify, may seek a ruling from the court to prohibit the prosecution's introduction of the defendant's criminal acts for impeachment purposes. See People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 853 (1974).
Mr. Torrez chose to testify, the prosecutor would be allowed to ask him about a felony conviction in 1992, without specifying its type, and inquire as to whether or not he had been convicted of petit larceny in 1991. (Tr. 18). During voir dire, Mr. Torrez's trial attorney, William J.
"Tr." refers to the trial transcript.
Dowling, used his allotted peremptory challenges to strike a number of potential jurors who had been victims of robberies or exhibited some other potential prejudicial associations. (Tr. 72, 111). For instance, he successfully struck a woman who had been the victim of a crime (Tr. 59, 72); a woman whose nephew was accused of robbery (Tr. 40, 72); a man whose brother was a police officer (Tr. 104, 111); and a woman whose friends included Assistant District Attorneys. (Tr. 104, 111).
At the trial, Ms. Silva testified that although the petitioner had the sweatshirt hood pulled up over his head during the robbery, they had been only about one foot apart and she could still see his face. (Tr. 251-54). She stated that the only time she took her eyes off the petitioner was for a few seconds when she looked down at the gun he was holding. (Tr. 255, 275-76). Ms. Silva further testified that as she was talking to emergency services on the phone, she had another chance to observe the petitioner as he fled in the direction of Aqueduct Park. (Tr. 257). She again positively identified Mr. Torrez in court as the perpetrator. (Tr. 249).
The defense did not call any witnesses at trial. In his closing argument, Mr. Torrez's attorney suggested to the jury that this was a case of simple misidentification by the complaining witness and that the show-up, where Mr. Torrez was on his hands and knees surrounded by police officers, was what prompted Ms. Silva to identify him as the perpetrator. (Tr2. 38).
"Tr2" refers to the second, separately paginated section of the trial transcript.
Mr. Torrez was convicted of robbery in the first degree.
He was sentenced as a second felony offender to a term of imprisonment of four and one-half to nine years. He then filed a direct appeal to the Appellate Division, First Department, asserting that: (1) a "grave risk" existed that he was wrongfully convicted; (2) the description of the perpetrator supplied by the victim was insufficient to provide the police with a basis to stop and detain him; and (3) the in-court identification by the victim should have been suppressed because the victim had only "a fleeting glimpse" of her attacker, provided an insufficient description, and was reluctant to identify him at trial. (Brief for Defendant-Appellant, attached as Exh. 1 to Killian Aff., at 16, 22, 31). In a supplemental brief, the petitioner also argued that he was denied effective assistance of trial counsel and that the court should set aside the verdict in light of the suggestiveness of the show-up identification. (Pro Se Supplemental Brief ("Supp. Br."), attached as Exh. 2 to Killian Aff., at 1, 6). The Appellate Division rejected these claims and affirmed Mr. Torrez's conviction. People v. Torres, 262 A.D.2d 161, 693 N.Y.S.2d 105 (1st Dep't 1999). The court held that the jury verdict was based on legally sufficient evidence and that the suppression motion was properly denied, and it dismissed the remaining claims without comment.
Throughout the state court proceedings, the petitioner's name appeared as "Torres."
In July of 1999, the petitioner filed a motion pursuant to § 440.10 of New York Criminal Procedure Law ("CPL") to vacate his conviction, claiming ineffective assistance of trial counsel. This motion was denied on the grounds that the issue had already been decided on direct appeal. (Order dated Oct. 12, 1999, attached as Exh. 7 to Killian Aff.). In December of 1999, the New York State Court of Appeals denied the petitioner's application for leave to appeal. People v. Torres, 94 N.Y.2d 867, 704 N.Y.S.2d 544 (1999). Mr. Torrez then filed the instant petition for a writ of habeas corpus on April 3, 2000. In it he argues that his conviction was obtained as the result of an unlawful arrest since the police did not have probable cause to stop and detain him. Second, he asserts that the identification in the park should have been suppressed because the victim was "hysterical." Third, he contends that he was denied effective assistance of counsel.
The arguments made by Mr. Torrez in the papers he has submitted to this Court are cursory. In order to give this pro se petitioner the benefit of the doubt, I have also considered the arguments raised in his state appellate briefs.
Discussion
A. Stop and ArrestMr. Torrez claims that the police did not have probable cause to stop and detain him in violation of his Fourth Amendment rights. He further asserts that Stone v. Powell, 428 U.S. 465 (1976), which bars federal habeas corpus relief for most Fourth Amendment claims raised by state prisoners, is limited to issues of improper seizure of physical evidence. His argument is without merit.
In Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 494; see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Gumbs v. Kelly, No. 97 Civ. 8755, 2000 WL 1172350, at *1 (S.D.N.Y. Aug. 18, 2000); Steed v. State of New York Executive Department Division of Parole, No. 00 Civ. 2293, 2000 WL 1593342, at *9 (S.D.N.Y. Oct. 25, 2000).
Though Stone involved physical evidence seized in a search, the Supreme Court has since held that the Stone doctrine applies to a Fourth Amendment challenge to the introduction of a confession made after an unlawful arrest. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983). Accordingly, habeas review is unavailable where the claim is based on an unlawful arrest in violation of the Fourth Amendment. See, e.g., Gantt v. Artuz, No. 97 Civ. 3032, 1999 WL 1206733, at *3 (S.D.N.Y. Dec. 16, 1999) (review of claim that arresting officers did not have probable cause to stop petitioner precluded by Stone); Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *3 (S.D.N.Y. Aug. 12, 1999) (no habeas review of search and seizure claim where probable cause to arrest was questioned); Quinones v. Keane, No. 97 Civ. 3173, 1998 WL 851583, at *4 (S.D.N.Y. Dec. 7, 1998) (no review permitted of search and seizure issues). Therefore, the Stone doctrine clearly applies to Mr. Torrez's claim.
Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (emphasis added). Under this standard, there are only two instances in which a Fourth Amendment claim will be reviewed by a federal habeas court: (1) where the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) where the state has provided a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citing Gates, 568 F.2d at 840).
It is clear that New York has provided the requisite corrective procedures to address Mr. Torrez's Fourth Amendment claim. See CPL § 710; Capellan, 975 F.2d at 70 n. 1 ("federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in . . . [CPL § 710.10], as being facially adequate"); (quotations and citations omitted); Joyner, 1999 WL 608774, at *4. Although the Second Circuit has not defined precisely what constitutes an "unconscionable breakdown," it has said that some sort of "disruption or obstruction of a state proceeding" is required. Capellan, 975 F.2d at 70; see Joyner, 1999 WL 608774, *4 (unconscionable breakdown when "there has been no meaningful inquiry by the state courts into the petitioner's Fourth Amendment claim or when a procedural catch-22 prevents the merits of the petitioner's claim from ever being heard by any state court") (quotations and citations omitted). Mr. Torrez availed himself of New York's corrective procedures: a Mapp/Wade hearing was held in which the trial court determined that the petitioner was properly detained (W. Tr. 87, 89), and Mr. Torrez has failed to demonstrate any breakdown in this process. His Fourth Amendment claim is therefore not reviewable.
B. Identification
Testimony Mr. Torrez next claims that the show-up identification testimony should have been suppressed. Because Ms. Silva's identification testimony was independently reliable, the petitioner's claim fails. "[R]eliability is the linchpin in determining the admissibility of identification testimony. . . ." Manson v. Brathwaite, 432 U.S. 98, 113 (1977). A pretrial identification by a witness is admissible as long as it was not so unreliable as to raise "a very substantial likelihood of irreparable misidentification." Id. at 116 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Neil v. Biggers, 409 U.S. 188, 196-98 (1972). The constitutional validity of identification testimony is analyzed according to a two-part test. First, the court must determine whether the suspect's guilt was suggested by the identification process. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994); Bond v. Walker, 68 F. Supp.2d 287, 301-02 (S.D.N.Y. 1999). Where that is the case, the admission of the evidence will nevertheless satisfy constitutional standards if the court determines that the identification was independently reliable. See Manson, 432 U.S. at 114; Wong, 40 F.3d at 1359.
1. Suggestiveness of Show-up Identification
According to the petitioner, when Ms. Silva identified Mr. Torrez he was on his hands and knees surrounded by police officers and patrol cars. Several courts, however, have found similar show-up procedures not to be unnecessarily suggestive. See, e.g., United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994) (identification of handcuffed defendant illuminated by flashlights of officers not "unnecessarily suggestive"); United States v. Ortiz, No. 99 Cr. 532, 2000 WL 37998, at *1 (S.D.N Y Jan. 18, 2000) (not unduly suggestive where "defendants in handcuffs, standing beside a marked police car, and accompanied by uniformed police officers"); Jones v. Strack, No. 99 Civ. 1270, 1999 WL 983871, at *11-12 (S.D.N.Y. Oct. 29, 1999) (show-up identification with defendant "surrounded by police, with lights flashing, within a few blocks of the incident" not impermissibly suggestive); cf. Wray v. Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (impermissibly suggestive identification where witness shown only one suspect at police precinct).
The only evidence that Mr. Torrez was on his knees at the time of the show-up comes from Ms. Silva's grand jury testimony. She did not recall this detail at trial. (Tr. 286).
Neither the presence of police officers nor indications that the person is in police custody renders the identification improper. Id. Therefore, the identification procedure in the instant case was not unduly suggestive.
2. Reliability of Identification
Even if the show-up had been impermissibly suggestive, the identification evidence was nevertheless reliable. See Wong, 40 F.3d at 1359 (2d Cir. 1994). To determine the independent reliability of an identification, a court examines the following factors: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200; see also Manson, 432 U.S. at 114 (applying Biggers factors to both in-court and out-of-court identifications); United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992).
Ms. Silva had ample opportunity to view the robber throughout the duration of the incident. She was face to face with her assailant (Tr. 254), and although the incident only lasted for a few seconds (W. Tr. 64; Tr. 262), "the endurance of the . . . encounter . . . does not require a different result." Warren v. Miller, 78 F. Supp.2d 120, 136 (E.D.N.Y. 2000) (citing Chavis v. Henderson, 638 F.2d 534, 536-37 (2d Cir. 1980) (forty-five second encounter sufficient to make adequate identification)). Ms. Silva was given additional time to observe her assailant as he questioned her about her jewelry and she responded. (W. Tr. 54; Tr. 253-54). Moreover, she had an opportunity to view the attacker before the confrontation as well as afterwards when he exited from an adjacent building into which he had fled directly after the encounter. (W. Tr. 54-55; Tr. 255-57). Even though Ms. Silva admitted glancing down at the gun used by the assailant, this did not preclude her from capturing his characteristics in her memory. (Tr. 275-76).
Furthermore, her description of the perpetrator accurately matched Mr. Torrez's appearance when he was apprehended. Although she was visibly upset at the time of the show-up, Ms. Silva's identification of the petitioner was unprompted. (W. Tr. 36). Finally, the show-up was close in time to the incident since the police arrived shortly after the encounter, and only five minutes then elapsed before Ms. Silva arrived at the location where the petitioner was apprehended. (W. Tr. 67). See Styles v. Zandt, No. 94 Civ. 1863, 1995 WL 326445, at *4 (S.D.N.Y. May 31, 1995), aff'd, 101 F.3d 684 (2d Cir. 1996) (street show-up proper because identification took place soon after crime at short distance from robbery scene). Thus, the petitioner's challenge to the constitutionality of the identification testimony must be rejected.
C. Ineffective Assistance of Counsel
Mr. Torrez further argues that he was denied the effective assistance of trial counsel in two respects. First, he claims that his trial counsel, Mr. Dowling, failed to strike "presumably" prejudiced jurors. (Supp. Br. at 3). Second, the petitioner claims that Mr. Dowling failed to present an alibi defense. (Supp. Br. at 4). For the reasons discussed below, the performance of petitioner's counsel was not deficient, and the petitioner was not prejudiced.
In order to obtain reversal of a conviction due to ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability of a different result in the proceeding but for the errors of counsel. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). When reviewing the trial counsel's performance, a habeas court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
Accordingly, strategic decisions by counsel do not generally rise to the level of ineffective assistance of counsel. Id. 690-91; see also United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990), Rodriguez v. Mitchell, No. 92 Civ. 2083, 1993 WL 229013, at *3 (S.D.N.Y. June 24, 1993).
1. Failure to Strike Jurors
The petitioner claims that two jurors who served at his trial automatically sided with the prosecution because juror number one, the foreman, had been the victim of a burglary, and juror number six had three relatives who were allegedly associated with law enforcement agencies. The petitioner asserts that these jurors were not suitable because they would be inclined as a result of their experiences and associations to side with the prosecution.
A defendant enjoys the right to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Ross v. Oklahoma, 487 U.S. 81, 85 (1988).
The test for determining whether a juror is biased is "whether the juror . . . had such fixed opinions that [he] could not judge impartially the guilt of the defendant." Patton v. Yount, 467 U.S. 1025, 1035 (1984); accord United States v. Quintero-Barraza, 78 F.3d 1344, 1349-50 (9th Cir. 1996). Actual bias may be demonstrated by direct proof, such as an admission during voir dire. See United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997). By contrast, bias may be presumed only in "those extreme situations where the relationship between a . . . juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations." Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988); accord United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000); see also Torres, 128 F.3d at 45.
In this case, there is nothing in the record to indicate that either juror number one or juror number six was biased against the defendant. Juror number one assured the trial court that, though he had been burglarized, the incident would not have any effect on his ability to be a fair juror. (Tr. 50-51).
Juror number six acknowledged that he had one cousin who used to work for police dispatch. When questioned further, the juror confirmed that he would be able to fairly evaluate police witnesses. (Tr. 91). Furthermore, mere membership in a law enforcement agency "is not presumptively a disqualification for service on a jury in a criminal trial." Mikus v. United States, 433 F.2d 719, 724 (2d Cir. 1970) (citations omitted). Based on the lack of actual or presumed bias of the jurors, the petitioner has not demonstrated that he was prejudiced by his counsel's failure to strike these jurors and has, therefore, failed to establish ineffective assistance of counsel.
2. Failure to Present Alibi Witnesses
Mr. Dowling's decision to proceed with a misidentification defense while foregoing alibi witnesses was strategic and does not rise to the level of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; Rodriguez, 1993 WL 229013, at *5; Grimes v. United States, 444 F. Supp. 78, 80-81 (S.D.N Y 1977). Generally, courts will not inquire whether a course chosen by defense counsel was the best strategy, or even a good one, as long as the defendant was provided with meaningful representation. Instead, a petitioner has the burden of demonstrating that counsel's decision not to present a particular defense was not the result of reasoned professional judgment and that, had counsel presented this defense, there is a reasonable probability that the jury would have reached a different verdict. See Rodriguez, 1993 WL 229013, at *3; Grimes, 444 F. Supp. at 80-81. Here the petitioner has not met that burden because he has neither identified his supposed alibi witnesses nor explained how counsel might have been aware of them.
Conclusion
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Allen G. Schwartz, Room 1350, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.