Edwards v. Fischer

Decision Date07 February 2006
Docket NumberNo. 01 Civ. 9397(RJH)(THK).,01 Civ. 9397(RJH)(THK).
PartiesThomas EDWARDS, Petitioner, v. Brian FISCHER, Superintendent of Sing Sing Correctional Facility, Respondent.
CourtU.S. District Court — Southern District of New York

Thomas Edwards, Ossining, NY, pro se.

Hilary Hassler, Robert M. Morgenthau, District Attorney, New York, NY, for Respondent.


HOLWELL, District Judge.

Petitioner Thomas Edwards brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction for one count of murder in the second degree (felony murder) and one count of robbery in the first degree, crimes for which he is serving concurrent sentences of twenty-one years to life and from twelve to twenty-four years, respectively. In the petition, petitioner argues (1) that his Sixth Amendment right to confront witnesses was violated when the trial court refused to allow cross examination or expert testimony on the subject of the New York City Police Department's ("NYPD") guidelines on the use of deadly physical force; and (2) that the trial court violated petitioner's Fourteenth Amendment rights by giving erroneous instructions on the felony murder charge, and by holding a conference without petitioner and thereafter giving an erroneous Allen charge to the jury.

On July 12, 2004 Magistrate Judge Theodore H. Katz issued a Report and Recommendation (the "Report") recommending that the petition be denied in its entirety. After a brief extension, petitioner filed timely objections to the Report. For the reasons set forth below, the Court adopts the Report in its entirety and denies the petition.


The facts underlying petitioner's trial and incarceration are extensively outlined in the Report which is attached to this opinion for ease of reference. Petitioner and three accomplices attempted to rob a Chemical Bank branch located at 91st Street and Broadway in Manhattan. As they were fleeing the building one of Edward's accomplices, Sidney Fisher, exchanged shots with two police officers responding to a report of the robbery. Fisher ran west exchanging shots with and hitting a third police officer who had joined the chase. On 93rd Street, Fisher grabbed a bystander to use as a shield and continued to fire at the approaching officers. Fisher was hit and released the bystander but fell into a crouch and pointed his gun at the officers. Several officers fired at Fisher, killing him. However, the bystander was also hit, apparently by an officer's errant shot, and died as a result of her wound. At the same time Edwards and another accomplice fled eastward and were arrested, hiding in a building on 91st Street. Petitioner was thereafter charged with felony murder and robbery.

At a November 18, 1993 pretrial hearing petitioner's trial counsel sought permission to call an expert to testify regarding NYPD guidelines (the "Guidelines") on the use of deadly physical force. (See November 18, 1993 Preliminary Hearing Transcript 4 ("First Prelim. Hrg. Tr.").) At a second hearing conducted on December 3, 1993, the trial court preliminarily ruled that it was "not inclined to allow expert testimony on the issue of whether the police conduct was an intervening cause of the bystander's death." (December 3, 1993 Preliminary Hearing Transcript 2 ("Second Prelim. Hrg. Tr.").) The court offered, however, that "once counsel gets the transcript of the grand jury minutes and/or other discovery, if you choose to have your expert review that matter and summarize what he or she wants to say, you can do that and make your record whether you think it will add or detract from the jury consideration on the issue." (Id. at 2-3.) Petitioner did not subsequently proffer proposed expert testimony on the subject of the Guidelines.

But the subject did come up at trial. The transcript shows that during the cross-examination of Officer Bauman, counsel for petitioner's co-defendant asked: "[n]ow, when you were in the Police Academy receiving your training, you were instructed in certain situations when you would be authorized to use deadly force against another person, correct?" (Trial Tr. 2489.) The State objected to this question but was overruled after Officer Bauman answered affirmatively. Counsel then asked Officer Bauman a follow up question: "[d]eadly physical force would encompass shooting at them, correct?" (Id.) Before the officer could answer, the state renewed its objection and a sidebar was called.

At the sidebar, the State argued that defense counsel's line of questioning was inconsistent with the court's December 3 ruling in that it would impermissibly place before the jury the question of whether the officers' actions had violated the Guidelines. (Id. at 2490-91.) Counsel for petitioner's co-defendant responded that he only intended to ask the following three questions about Officer Bauman's police training: "(1) [were you] trained in the use of deadly force; (2) [can you use it] if somebody is shooting at you; [and] (3) [isn't it true that] you are not obligated to use it and you are trained not to use it if it would endanger innocent lives." (Id. at 2495.) The court then gave petitioner's counsel an opportunity to be heard on the subject. Counsel responded: "I am joining in his application, Judge." (Id. at 2496.)

The court then ruled that Officer Bauman could be asked those three questions, provided they were prefaced with the phrase "[a]s a trained and experienced officer, you would agree ...." (Id. at 2499-500.) At the same time, the court advised counsel that it would not allow inquiry into Officer Bauman's "particular training or deadly force or what his understanding is [regarding] what is in any manuals," explaining that it felt such issues irrelevant. (Id. at 2501.) The court concluded by asking for "[a]ny exceptions or further points." (Id. at 2502.) Petitioner did not note any exceptions, either in response to this invitation or during the remainder of Officer Bauman's testimony. (See id. at 2502-28B.)

After the jury convicted petitioner of robbery and felony murder, petitioner appealed on Sixth and Fourteenth Amendment grounds. With respect to petitioner's Sixth Amendment claim, the New York Appellate Division, First Department, held that "[s]ince [petitioner] acquiesced in the [trial] court's compromise ruling and did nothing to alert the court that it had still not provided appropriate relief, [petitioner] failed to preserve [his] claim that the court improperly precluded cross-examination of police officer concerning the internal police guidelines on the use of deadly force." People v. Edwards, 278 A.D.2d 151, 152, 717 N.Y.S.2d 596 (1st Dept.2000). The First Department also noted that, had it reviewed the claim, it would have concluded that "there was no need for a trial within a trial on the subject of police conduct" and that the trial court had nevertheless "allowed the defense wide latitude in which to delve into [the] subject [of deadly physical force]." Id.1

Petitioner also claimed on appeal that the trial court violated his due process rights by failing to instruct the jury to consider whether Fisher's flight had terminated by the time the bystander was killed and by failing to give proper supplemental instructions in response to the jury's questions on this issue. Finally, petitioner claimed that he was deprived of his right to be present during a material stage of trial because he was not present at a colloquy in the judge's robing room on an Allen charge, which charge petitioner claims was coercive. The First Department rejected these claims without discussion. Id.

The New York Court of Appeals denied petitioner leave to appeal. People v. Edwards, 96 N.Y.2d 758, 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 (N.Y.2001). This petition followed and, as noted, on July 12, 2004, Magistrate Judge Katz issued a report recommending that it be denied. The Court now turns to petitioner's objections to the Report, beginning with the applicable standard of review.


A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. If no objections are filed, or where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," reviewing courts should review a report and recommendation for clear error. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept.30, 2002); accord Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). On the other hand, where objections to a report are "specific and ... address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y.1992).

Petitioner does not expressly object to the Report's recommendation that his Fourteenth Amendment claims be denied.2 This Court finds no clear error in that recommendation and therefore adopts it in its entirety.3 The remainder of the Report — to which petitioner has objected with specificity — deals with petitioner's Sixth Amendment claim that he was denied the opportunity to cross examine state witnesses on the subject of the Guidelines. A de novo review of those sections of the Report follows.


Edwards filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 1047132, 110 Stat. 1214 (April 24, 1996). Thus, this Court applies the standard of review established by Section 2254(d) of AEDPA. Torres v. Berbary, 340 F.3d 63,...

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