Carroll v. Hoke

• Decision Date: 04 October 1988
• Docket Number: No. CV 88-1065.,CV 88-1065.
• Citation: 695 F. Supp. 1435
• Parties: Gilbert G. CARROLL, Petitioner, v. Robert HOKE, Warden of Eastern Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

695 F. Supp. 1435

Gilbert G. CARROLL, Petitioner, v. Robert HOKE, Warden of Eastern Correctional Facility, Respondent.

No. CV 88-1065.

United States District Court, E.D. New York.

October 4, 1988.

Gilbert G. Carroll, Napanoch, N.Y., pro se.

Patrick Henry, Suffolk County Dist. Atty. by Arthur Scheuermann, Riverhead, N.Y., for respondent.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Gilbert Carroll ("Carroll" or the "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the application is denied.

I. Background

A. Petitioner's State Court Conviction

In an indictment handed down by a Suffolk County grand jury petitioner was charged with the commission of several sexually-related offenses alleged to have occurred on April 4 or April 5 of 1983. A jury trial was held and on March 14, 1984 petitioner was convicted of the crimes alleged in the indictment. Shortly thereafter, Carroll was sentenced to various terms—the longest of which was a term of six to twelve years—to run concurrently.

Petitioner appealed his conviction to the Appellate Division of the Supreme Court, Second Department, and in an opinion dated February 24, 1986 that Court unanimously affirmed the conviction. See People v. Carroll, 117 A.D.2d 815, 499 N.Y.S. 2d 135 (2d Dep't 1986). Carroll's subsequent application for leave to appeal to the New York State Court of Appeals was denied on April 22, 1986. This proceeding followed.

B. Grounds For Relief

Petitioner urges five grounds in support of the present application. Although the grounds raised are couched in constitutional terms they are, for the most part, restatements of allegedly erroneous evidentiary rulings made by the state trial court.

Labelling ground one as an argument that his conviction was obtained "in violation of the constitutional guarantee of due process of law and the right to a fair trial," Carroll takes issue with various rulings related to his alibi defense. Petitioner's second claim is that the indictment failed to give him constitutionally adequate notice of the crimes with which he was charged. Third, petitioner argues that the trial court's curtailment of cross-examination of the victim regarding her prior sexual conduct deprived him of the constitutional right to confront his accusers.

Petitioner's fourth ground alleges that an allegedly improper ruling concerning the admissability of petitioner's prior attempted robbery conviction violated his constitutional rights. Finally, Carroll argues that the trial court improperly refused to admit a tape recording of a conversation between the complainant and another individual and improperly refused a request to recall the complainant for additional cross-examination concerning the recording. Each ground urged in support of petitioner's habeas application is discussed below.

II. The Present Petition

A. Evidentiary Rulings Concerning the Alibi Defense

Petitioner argues that three evidentiary rulings concerning his alibi defense deprived him of a fair trial. Specifically, it is argued that the trial court improperly allowed the prosecutor to impeach the witnesses' credibility by questioning them as to their failure to disclose exculpatory information to an investigator prior to trial. Second, petitioner takes issue with the trial court's alibi charge. Finally, it is argued that the trial court improperly admitted a "Notice of Alibi" into evidence.

i. Cross-Examination of Alibi Witnesses

As noted above, the grounds raised by petitioner here were also raised in Carroll's appeal to the appellate division. When ruling on the propriety of the prosecution's cross-examination of the alibi witnesses, the state appellate court noted that Carroll's failure to object to this line of questioning at trial rendered the issue unpreserved for appellate review. See Carroll, 499 N.Y.S.2d at 136. The Court also ruled, in the alternative, that the questioning was appropriate. See id.

Where, as here, the state court has ruled alternatively on procedural and substantive grounds the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is implicated. In such a case this Court must assume that an adequate and independent state law ground exists to uphold the ruling, see Phillips v. Smith, 717 F.2d 44, 48 (2d Cir. 1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1287, 79 L.Ed.2d 689 (1984), and petitioner must show cause for his failure to comply with the state rule of procedure and prejudice attributable thereto, id.; see also Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). Since petitioner has offered no reason for his failure to comply with New York's contemporaneous objection rule and the mere failure to object does not, standing alone, constitute the requisite cause, see Murray v. Carrier, 477 U.S. 478, 486-87, 106 S.Ct. 2639, 2644-45, 91 L.Ed.2d 397 (1986), petitioner has not satisfied the first prong of the cause and prejudice test. Accordingly, this Court cannot review the merits of Carroll's claim that the prosecution improperly cross-examined the alibi witnesses.

ii. The Alibi Charge

Petitioner's claim concerning the impropriety of the trial judge's alibi charge is closely related to the claim concerning the allegedly improper cross-examination of the alibi witnesses. Specifically, Carroll claims that the trial judge should have issued a limiting instruction charging the jury that the alibi witnesses failure to speak to the authorities did not render them "liars" who had shirked their responsibilities.

An allegedly erroneous jury instruction will form the basis for issuance of a writ of habeas corpus only if the instruction, when viewed in the context of the entire trial, was so unfair as to deprive defendant of a fundamentally fair trial. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). A habeas petitioner complaining about an omitted jury instruction, when no objection was made to the state trial court's charge, bears a heavy burden. In such a case the federal court must afford the trial court's instruction "extravagant" protection. Henderson v. Kibbe, 431 U.S. 145, 154 n. 11, 97 S.Ct. 1730, 1736 n. 11, 52 L.Ed.2d 203 (1976). Indeed, it is the "rare case in which an improper instruction will justify reversal of a criminal conviction...." Id. at 154, 97 S.Ct. at 1736. This standard is particularly rigid where, as here, the claim of prejudice stems from the failure to give an instruction. See id. at 155, 97 S.Ct. at 1737.

Given this strict standard of review, the Court cannot find that the trial court's failure to give any limiting instruction concerning the testimony of alibi witnesses deprived Carroll of his right to a fair trial. The trial court's charge was not objected to and Carroll never requested the limiting instruction referred to here. The court's instruction tracked New York's pattern jury instruction and there is no indication that the charge, as given, was improper. Since ample evidence rebutting petitioner's alibi defense was presented to the jury, there is no indication that the failure to give the limiting instruction affected the fairness of the trial. In sum, the trial court's alibi instruction was appropriate, no objection was voiced and there has been no constitutional violation. Cf. Wright v. Smith, 569 F.2d 1188, 1191-94 (2d Cir.1978) (although state court's alibi charge might have been in error failure of counsel to object and conduct of entire charge and trial did not require issuance of writ of habeas corpus).

iii. The Notice of Alibi

Petitioner's final argument concerning the alibi defense concerns the "Notice of Alibi"—a document used in state proceedings when a criminal defendant intends to use an alibi defense. Specifically, Carroll argues that it was improper for the trial court to admit the Notice of Alibi into evidence and that its admission deprived him of his right to a fair trial. While respondent agrees that the Notice of Alibi was improperly admitted, it is argued that this error is not of constitutional magnitude and does not, therefore, warrant the granting of a writ of habeas corpus. This Court agrees.

At the outset this Court notes that to prevail on his claim petitioner must show that the error was so pervasive as to have denied him his constitutional right to a fundamentally fair trial. Mapp v. Warden, N.Y. State Corr. Inst., 531 F.2d 1167, 1173 (2d Cir.1976), cert. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976). Petitioner bears a heavy burden since evidentiary errors do not generally rise to the level of a constitutional deprivation requiring the setting aside of a conviction. Lipinski v. People of New York, 557 F.2d 289, 292 (2d Cir.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978); Jenkins v. Bara, 663 F.Supp. 891, 899 (E.D.N.Y. 1987). Where, as here, evidence is claimed to have been erroneously admitted, the issue becomes "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for a conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir.1985). Such evidence has been described as "crucial," "critical," or "highly significant." Id., quoting, Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir.1982).

Applying this standard here leads the Court to conclude that there has been no error of constitutional magnitude. While it is true that there were discrepancies between the alibi notice and the testimony of an alibi witness, these discrepancies were brought out on cross-examination of that witness. Thus, it is unlikely that admission of the notice into evidence had any greater effect than its discussion on cross-examination. Moreover, sufficient additional evidence, notably the testimony of a co-defendant...