Cruz v. Scully

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: LASKER
• Citation: Cruz v. Scully, 716 F.Supp. 766 (S.D. N.Y. 1989)
• Decision Date: 27 June 1989
• Docket Number: No. 88 Civ. 7042 (MEL).,88 Civ. 7042 (MEL).
• Parties: Cristobal CRUZ, Petitioner, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent.

716 F. Supp. 766

Cristobal CRUZ, Petitioner, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent.

No. 88 Civ. 7042 (MEL).

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

June 27, 1989.

Cristobal Cruz, Stormville, N.Y., pro se.

Paul T. Gentile, Dist. Atty., Bronx County, New York City (Peter D. Coddington and Allen H. Saperstein, Asst. Dist. Attys., of counsel), for respondent.

LASKER, District Judge.

Cristobal Cruz, appearing pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 1986, after a jury trial in the Supreme Court of New York, Bronx County, Cruz was convicted of and sentenced for attempted murder in the second degree, assault in the first degree and reckless endangerment in the first degree. The Appellate Division affirmed the conviction without opinion, People v. Cruz, 133 A.D.2d 1018, 519 N.Y.S.2d 988 (1st Dept. 1987), and the Court of Appeals denied Cruz's application for leave to appeal, People v. Cruz, 70 N.Y.2d 1005, 526 N.Y.S.2d 940, 521 N.E.2d 1083 (1987).

Cruz argues that his constitutional rights were violated because: 1) the court's denial of his request for an order compelling the government to produce the grand jury minutes of two of his witnesses violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962), 2) the court's refusal to permit testimony about the complainant's statement to the police violated his Sixth Amendment right to confront witnesses, 3) the prosecutor's summation was constitutionally improper because it attempted to arouse sympathy, and 4) the police's search of and seizure of a gun from his store violated the Fourth Amendment. The state contends that the first three issues are immune from federal habeas review because they were not raised during the trial in accordance with state procedure. Moreover, the state maintains that, even if Cruz has preserved these arguments by objecting in a timely fashion, the petition must be denied because Cruz's arguments lack merit. The state's arguments are persuasive and the petition is accordingly denied.

A. PROCEDURAL DEFAULT

It is the rule in this circuit that, where the state argues on appeal that a defendant cannot prevail on her or his constitutional claims both because the arguments lack merit and the defendant failed to preserve the objection, the Appellate Division's silent affirmance is construed to rest on procedural grounds. Accordingly, the conviction stands on an adequate and independent state ground that bars review of the merits by a habeas court, unless the petitioner can show cause for and prejudice resulting from her failure to object in the state proceedings.¹ Martinez v. Harris, 675 F.2d 51, 53-55 (2d Cir.1982). As was true in Martinez, the state in the case at hand argued in its brief before the Appellate Division that Cruz could not prevail on the merits of his arguments and that he had procedurally defaulted on three of the four arguments now raised in this petition.

Under New York law, "for purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial ... is presented when a protest thereto was registered, by the party claiming error, at the time when the court had an opportunity of effectively changing the same." N.Y.Crim.Proc. § 470.105(2) (McKinney 1983). It is clear that Cruz failed to comply with New York law and thus preserve his challenge to the government's statements during summation: The transcript does not reflect a contemporaneous objection by Cruz to the prosecutor's summation.² Moreover, there is a serious question whether Cruz preserved his Brady and Fifth Amendment arguments. Although he objected at trial to the court's rulings on the grand jury minutes and the admissibility of the victim's allegedly prior inconsistent statement, his objections were rooted in the "interest of fair play"³ and the rules of evidence,⁴ respectively. Because the trial court was not alerted to the basis for the objection, it did not have the opportunity "effectively to change" its ruling within the meaning of § 470.05(2). See People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111 (1982) (defendant failed to preserve arguments for appellate review; objections at trial were either general or premised on different theory); People v. Qualls, 55 N.Y.2d 733, 447 N.Y.S.2d 149, 431 N.E.2d 634 (1981) (defendant failed to preserve argument that evidence was inadmissible hearsay and introduction violated constitutional right of confrontation because defendant objected at trial only on ground that evidence constituted improper bolstering).

Cruz has not argued that there was cause for and prejudice resulting from his failure to preserve his objection sufficient to bring him within the exception of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, even if he could make such a showing, he could not for the reasons discussed below prevail on the merits.

B. Brady MATERIAL

Prior to the trial, Cruz requested that all Brady material be disclosed. Both before and at trial, he asserted that in the "interest of fair play" and under "reciprocal discovery" he was entitled to the grand jury testimony of two witnesses who had testified at the defendant's request. The court denied the requests on the grounds that the witnesses were available to be interviewed and the defense presumably knew the nature of their testimony. At the conclusion of the direct examination of one of the witnesses at issue, upon the request of the defendant, the court required the government to give defense counsel the grand jury testimony of the witness if the testimony was to be used during cross-examination, which the government did. In this petition, Cruz contends that the minutes constituted exculpatory material within the meaning of Brady and thus the court's refusal to require their earlier production was in violation of his right to due process.

To prevail on his Brady claim, Cruz must show that the prosecution suppressed evidence favorable to him and material either to guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. See also United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Moore v. Illinois, 408 U.S. 786 (1972). The government cannot be said to have "suppressed" evidence within the meaning of Brady if the defendant "knew or should have known the essential facts permitting him to take advantage of the evidence in question." U.S. v. Esposito, 834 F.2d 272, 275 (2d Cir.1987). See also United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.), cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983); United States v. Stewart, 513 F.2d 957, 960 (2d Cir.1975); United States v. Persico, 621 F.Supp. 842, 869-70 (S.D.N.Y.1985).

In the case at hand, Cruz presumably knew the substance of the witnesses' testimony, because he had arranged for them to testify before the grand jury. Moreover, he acknowledged that the witnesses were available for him to interview. Thus, Cruz had knowledge of "the essential facts" that would enable him to take advantage of any exculpatory evidence. See LeRoy, 687 F.2d at 618 (government had no duty to advise defendant of allegedly exculpatory testimony of three witnesses where testimony of another witness put defendant on notice that the three might support his defense); Persico, 621 F.Supp. at 869-70 (denying motion under Brady for grand jury minutes of eight witnesses because defendant had access to witnesses, knowledge of portion of testimony that was exculpatory, and could subpoena witnesses). Accordingly, the failure of the state to furnish the grand jury testimony before trial did not violate the Brady rule.⁵

C. SIXTH AMENDMENT

Cruz contends that he was denied his Sixth Amendment confrontation clause rights when the court denied admission of a prior inconsistent statement of Ms. Carmen Morales Saloman, the complainant in this case. When she testified, the defense chose not to cross-examine her about a police report indicating that immediately after she was shot she was unable to identify her assailant. Cruz later sought to impeach Saloman's in-court identification by offering the report as a business record during the testimony of the government's ballistic expert, who had received a copy of the report. The court held the report was inadmissible, because the witness had no knowledge of it and Saloman was under no obligation to give the information. Moreover, the court held the report could not be offered as a prior inconsistent statement because Saloman had given no statement with which it was inconsistent; defense counsel had not asked Saloman if she had been able to identify her assailant when questioned by the police at the scene. The court also precluded defense counsel from asking the officer who signed the police report about Saloman's inability to identify the defendant when she was first interviewed, on the ground that there was no basis for its admission as a prior inconsistent statement. The officer was permitted to state that there was a question on the report "regarding the possible identity of the perpetrator."

This issue raises two questions. First, did Cruz waive his right to confront Saloman when he chose not to cross-examine her while she was on the stand about her alleged earlier statement? Second, did the exclusion of Saloman's statement, when offered through two other witnesses, constitute a denial of Cruz's confrontation clause rights?

The Sixth Amendment right of confrontation is a personal right, which can be, and in this case was, waived by voluntarily agreeing not to cross-examine a witness at trial. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246-47, 16 L.Ed.2d 314 (1966); United States v. Carlson, 547 F.2d 1346, 1357-58 (8th Cir.1976), ...