Evans v. Artuz, 97 CV 3017(RR).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation68 F.Supp.2d 188
Docket NumberNo. 97 CV 3017(RR).,97 CV 3017(RR).
PartiesRodney EVANS, Plaintiff, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Defendant.
Decision Date30 September 1999
68 F.Supp.2d 188
Rodney EVANS, Plaintiff,
Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Defendant.
No. 97 CV 3017(RR).
United States District Court, E.D. New York.
September 30, 1999.

Page 189


Page 190

Rodney Evans, Stormville, NY, pro se.

Honorable Charles J. Hynes, Kings County District Attorney, Brooklyn By Phyllis Mintz, Assistant District Attorney, for Respondent.

Memorandum and ORDER

RAGGI, District Judge.

Rodney Evans, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Evans was convicted in 1990 after a jury trial of Murder in the Second Degree, N.Y. Penal Law § 125.25[1] (McKinney 1998), and Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03 (McKinney 1998). He is presently incarcerated, serving concurrent prison terms of twenty years to life for murder and five to fifteen years for weapon possession. He now challenges his conviction on the grounds (1) that he was denied his right to be present at a material stage of his trial, specifically, portions of jury selection; (2) that the trial court denied him a fair trial by failing accurately to charge the jury on

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the law; and (3) that prosecutorial misconduct in summation further denied him a fair trial.

Respondent initially moved to dismiss the petition as time-barred. This court granted the motion, relying on the "reasonable" time standard endorsed by the Court of Appeals in Peterson v. Demskie, 107 F.3d 92 (2d Cir.1997). See Evans v. Artuz, 68 F.Supp.2d 188 (E.D.N.Y.1999). The Second Circuit subsequently reconsidered Peterson in Ross v. Artuz, 150 F.3d 97 (2d Cir.1998) (granting prisoners whose convictions became final before the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), a one-year grace period to file for habeas relief). In light of Ross, the Circuit vacated this court's dismissal of Evans's petition and remanded the case for further proceedings. See Evans v. Artuz, No. 97-2764 (2d Cir. Sept. 25, 1998).

Both sides have now fully briefed the merits of Evans's claims. The court has carefully considered the submissions of the parties and the record of proceedings in the state courts. For the reasons stated herein, it concludes that Evans's claims are without merit and that his petition for a writ of habeas corpus must be denied.

Factual Background

1. Introduction

At approximately 5:30 p.m. on January 13, 1989, a number of young people, most in their teens and early twenties, left Mid-wood High School in Brooklyn where they had just attended a basketball game and went to the nearby McDonald's restaurant at 2154 Nostrand Avenue. For the better part of an hour, these high school and college students ate, talked, and generally enjoyed themselves. Suddenly, gunshots were heard, and within moments, 18-year old Tondalayo Alfred was fatally wounded, the innocent victim of an attempt by 18-year old petitioner Rodney Evans to kill a neighborhood youth known simply as "Freddy."

2. Trial1

Rodney Evans conceded that he fired the shot that killed Tondalayo Alfred on January 13, 1989. The key point in dispute at his trial was whether he had acted in a reasonable attempt to defend himself against Freddy.

a. The Prosecution Case

To support its theory that Evans was guilty of second degree homicide committed without justification, the prosecution relied on the testimony of three eyewitnesses, Tasha George, Joann Ross, and the victim's younger sister, Tobia Alfred. Ms. George, the only one of the three who knew both Evans and Freddy, testified that she had a brief, inconsequential conversation with petitioner in the McDonald's on January 13, 1989. Then, as she was getting ready to leave the restaurant, she saw Freddy, whom she also knew, standing by the Nostrand Avenue entrance. Ms. George was about to greet Freddy when she heard a gunshot. She turned and saw that petitioner was firing at Freddy. Ms. George saw Freddy, who was unarmed, twist a restaurant chair out of its base and then use it to shield himself from the gunfire. Ms. Ross, who did not know Evans but who would later identify him in a police lineup, testified that she also saw petitioner fire his gun repeatedly toward the front of the restaurant. There were no shots fired from the opposite direction. The third eyewitness, Tobia Alfred, testified that she too heard gunfire in the McDonald's. She turned in its direction and caught a glimpse of a young man shooting a 9 mm semi-automatic pistol. She could not identify the shooter since she and her older sister, Tondalayo, quickly sought cover under their table.

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Their efforts proved futile. Shots continued to be fired, one of which struck Tondalayo Alfred in the arm, the other of which entered her chest, piercing her heart and lungs and ultimately killing her.

Considerable ballistics evidence was recovered at the crime scene, but no gun was ever found. Police experts would testify that the four spent shells and various deformed bullets found at the McDonald's, as well as the bullet that killed Tondalaylo Alfred, were all fired from the same 9 mm weapon. There was no ballistics evidence to suggest that any other gun had been fired.

b. The Defense Case

The crux of the defense case was the testimony of petitioner Rodney Evans. He admitted that on January 13, 1989, he carried a loaded 9 mm gun into the Nostrand Avenue McDonald's and fired it repeatedly at Freddy. He insisted that he acted in self defense after Freddy drew a gun and pointed it at him. Evans explained that he greatly feared Freddy, who was reputed to have killed one of petitioner's friends the previous month. In the intervening weeks, various friends told Evans that Freddy was looking to kill him too. Evans stated that he had never quarreled with Freddy and knew of no reason why the man would wish to harm him. Nevertheless, Evans began to carry a loaded firearm whenever he thought he might encounter Freddy.

Evans testified that he had purchased his 9 mm gun the previous summer in Virginia. He claimed to have been the victim of various unreported robberies and thought a gun would afford him protection. In fact, Evans never carried the weapon until he heard of Freddy's threats against him.

Evans insisted that the last person with whom he discussed these threats was Tasha George in the McDonald's restaurant on January 13, 1989. He claimed that Ms. George asked Evans why Freddy was looking to kill him.2 Soon after, Freddy entered the restaurant, saw petitioner, and pulled a gun from his rear waistband. Evans testified that he could not recall if Freddy ever fired the gun; nevertheless, he insisted that he feared for his life and for that reason started to discharge his own weapon.3 He stated that he had never operated a gun before, but relied on what he had seen on television in pulling back the slide and firing a number of rounds. Evans asserted that his intent had not been to kill Freddy but only to frighten him. He acknowledged that after he began shooting, Freddy threw a chair at him, but he could not recall exactly how he did this.4 Evans fled from the rear of the restaurant to avoid any further encounter with Freddy.

3. Procedural Background

The jury found Evans guilty of intentional Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. On March 27, 1990, he was sentenced to concurrent terms of

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twenty years to life for murder and five to fifteen years for weapon possession.

On direct appeal to the New York Supreme Court, Appellate Division, Second Department, Evans filed briefs both through counsel and pro se. He challenged (1) the trial judge's charge on justification, interested witnesses, and intent; (2) the sufficiency of the evidence; (3) the prosecutor's summation; (4) the trial court's treatment of defense counsel; (5) limitations on defense cross-examination; and (6) his exclusion from parts of the jury selection process.

While this appeal was pending, Evans filed a pro se motion with the trial court to vacate his conviction pursuant to N.Y.Crim. Proc. Law § 440.10 for the prosecution's alleged failure to disclose an autopsy tape as required by People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961) and N.Y.Crim. Proc. Law § 240.45(1)(a). On March 7, 1994, the Supreme Court denied the motion finding (1) that Evans had failed to establish the existence of the tape at issue; and (2) that, even if the Medical Examiner's office had prepared such a tape, the prosecution could not be found in violation of state law for failing to produce material in the possession of a non-investigatory department. See People v. Evans, No. 763/89 (N.Y. Sup.Ct. Kings Co. Mar. 7, 1994). On May 20, 1994, the Appellate Division, Second Department, summarily denied leave to appeal. See People v. Evans, No. 94-02786 (N.Y.App. Div.2d Dep't May 20, 1994).

A few months later, on August 22, 1994, the Appellate Division affirmed petitioner's judgment of conviction. See People v. Evans, 207 A.D.2d 500, 615 N.Y.S.2d 914 (2d Dep't 1994). It ruled that the evidence was sufficient to support the jury's verdict of guilty See id. at 500, 615 N.Y.S.2d at 915. The court also rejected petitioner's claim that he had been denied his right to be present during material stages of his trial. It found that part of the claim was factually unsupported. See id. ("While the defendant was not present when the challenges were discussed, he was present during the entire voir dire and was present when the challenges were given effect, because the challenged jurors were excused and others were sworn in open court"). The remainder depended on a state court ruling that did not apply retroactively to jury selections occurring before April 7, 1992. See id. at...

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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
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    ...in jury selection or otherwise frustrate the fairness of the proceedings against him." Cohen, 290 F.3d at 490 (quoting Evans v. Artuz, 68 F.Supp.2d 188, 195 (E.D.N.Y.1999)) (bracketing b. Batson Hearing. Haywood also argues that his constitutional rights were violated when he was deprived o......
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    ...rights provided he is present for juror questioning and the formal reading of challenges in open court. See, e.g., Evans v. Artuz, 68 F.Supp.2d 188, 195 (E.D.N.Y.1999); Benitez v. Senkowski, 1998 WL 668079, at *8 (S.D.N.Y. Sept.17, 1998). As Judge Raggi said in [The defendant] was able to v......
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