Fagon v. Bara, 86 Civ. 2685.

• Decision Date: 30 June 1989
• Docket Number: No. 86 Civ. 2685.,86 Civ. 2685.
• Citation: 717 F. Supp. 976
• Parties: Andrew FAGON, Petitioner, v. Raymond R. BARA, Jr., Superintendent, Arthur Kill Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents.
• Court: U.S. District Court — Eastern District of New York

717 F. Supp. 976

Andrew FAGON, Petitioner, v. Raymond R. BARA, Jr., Superintendent, Arthur Kill Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents.

No. 86 Civ. 2685.

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

June 30, 1989.

Andrew Fagon, pro se.

Kevin Lubin, Asst. Dist. Atty., New York City, for respondents.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Petitioner pro se, a parolee formerly in state custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ For reasons stated below, the petition is denied.

FACTS

At approximately 2 a.m. on June 6, 1982, petitioner's codefendant, Lloyd Heron, and another man entered Bell's Social Club at 638 East 169th Street in the Bronx and held up at gunpoint five patrons of the bar and the bar's owner. Two police officers arrived on the scene while the robbery was in progress and observed the two men leave the club and run to a nearby car. Already inside the car were the petitioner, who was in the driver's seat, and another man, who was sitting beside him. Heron jumped into the backseat of the car, which sped away immediately; the other man fled into a schoolyard.

The police gave chase, pursuing the car for about five minutes, until it crashed into a wall at the intersection of Morris and Teller Avenues. Petitioner jumped out of the driver's seat and Heron and the other man jumped out of the passenger's side of the car. A policeman found petitioner a short time later, crouching beneath the front porch of a nearby private house. After resisting arrest, petitioner was subdued and handcuffed. Heron was also arrested, and two firearms were found on his person. A subsequent search of the automobile turned up a bottle of Harvey's Bristol Creme which had been stolen from the bar.

At petitioner's jury trial before the State Supreme Court for Bronx County, one robbery victim, Virginia Allen, testified that petitioner was not one of the two men who entered the bar and robbed her, while another victim, Henry Lynden, testified that he did not recognize petitioner. Lynden also stated that he heard the voices of more than one robber, but only saw two of them. Frank Bell, the bar's owner, could not identify anyone.

Police Officer George Drumgoole testified that petitioner was not the other robber who ran out of the bar with Heron and fled into the schoolyard. Police Officer Ostris Maldonado testified that he did not see the face of the robber who ran into the schoolyard.

However, one of the bar's patrons, Mary Hargrove, identified petitioner as one of the two robbers, and testified that he had robbed her at gunpoint. She also stated that the bar was dimly-lit, that she had consumed a sixpack of beer over the three hours prior to the robbery, and that she saw petitioner from distances of two to six feet, but only for three to four seconds at one point during the robbery and for about two seconds at another point.

Petitioner testified on his own behalf at trial, stating that he was a gypsy cab driver who had been forced into the role of getaway driver at gunpoint by the man sitting next to him in the front seat. He also contradicted the State's account of his arrest in numerous respects, claiming that he came out of hiding when he felt assured that no shootout would occur, and that he immediately told the police that he was only a gypsy cab driver who had been forced to drive the getaway car.

The judge's charge to the jury included an instruction on liability as an accessory to the crime, N.Y. Penal Law § 20.00, and instructions on the affirmative defense of duress, N.Y. Penal Law §§ 25.00(2) and 40.00(1). On February 16, 1984, the jury convicted petitioner of six counts of first degree robbery (one count per victim) pursuant to N.Y. Penal Law § 160.15 and six counts of second degree robbery pursuant to N.Y. Penal Law § 160.10.

Petitioner was sentenced to six concurrent terms of four to twelve years on the first degree robbery counts, and six concurrent terms of three to nine years on the second degree robbery counts.

The Appellate Division affirmed petitioner's conviction without opinion on March 13, 1986. People v. Fagon, 118 A.D.2d 1050, 499 N.Y.S.2d 1000 (1st Dep't 1986). The New York Court of Appeals denied leave to appeal on June 12, 1986. People v. Fagon, 68 N.Y.2d 667, 505 N.Y.S.2d 1033, 496 N.E.2d 691 (1986).

Petitioner filed his petition with this court on August 12, 1986, alleging that

(1) the prosecution failed to prove beyond a reasonable doubt that petitioner either participated in the robbery or intentionally helped the robbers escape;

(2) the court should have suppressed Ms. Hargrove's in-court identification;

(3) the statute embodying the affirmative defense of duress, N.Y. Penal Law §§ 25.00(2) and 40.00(1), unconstitutionally shifted to the petitioner the burden of negating the element of intent; and

(4) the court erred in not granting a mistrial after the prosecutor made a remark, within the jury's hearing, implying that the prosecution's witnesses would be endangered if their addresses were revealed to the defense.

DISCUSSION

1. Exhaustion

The State claims that petitioner has failed to exhaust state remedies with respect to the first and last of the claims enumerated above (insufficient evidence and prosecutorial misconduct), and that the entire petition therefore must be dismissed under the rule in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The court disagrees. "Obviously if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his habeas petition, he will have fairly presented his legal basis to the state courts." Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984); Nunez v. Stevens, No. 87 Civ. 4, 1987 WL 16976 (S.D.N.Y. Sept. 10, 1987) (1987 U.S. Dist. LEXIS 8118). Petitioner's Appellate Division brief cited "U.S. Const. Amend. XIV" in support of these two claims and thereby "fairly presented" their constitutional basis to the state court. Petitioner's State Appellate Brief at i, ii, 2, 22, 4.² Accordingly, the court finds that the claims were exhausted.

2. The Merits

A. Insufficient Evidence

Plaintiff asserts that the State failed to prove beyond a reasonable doubt that petitioner either participated in the robbery or intentionally helped the robbers escape. In assessing such a claim, a court should not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1978) (emphasis in original) (citation omitted). Rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original).

The Supreme Court has cautioned the federal courts that, under this standard, the jury retains almost the entire range of its traditional discretion as sole judge of the facts:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Id., 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original) (footnotes omitted).

Therefore, this court is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony. United States v. Zabare, 871 F.2d 282, 286 (2d Cir.1989) (on appellate challenge to sufficiency of evidence, "the reviewing court must draw all reasonable inferences and resolve all issues of credibility in favor of the verdict"); Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir.1981) (rejecting insufficient evidence claim because jury was entitled to believe State's witnesses despite inconsistencies in their testimony and State's evidence); Soto v. Lefevre, 651 F.Supp. 588, 592 (S.D.N.Y.1986) (federal habeas court has no power to redetermine comparative credibility of conflicting eyewitness testimony); Milton v. Riley, No. 88 CV 2848, 1988 WL 140663 (E.D.N.Y. Dec. 16, 1988) (1988 U.S. Dist. LEXIS 14842) (federal habeas court must adhere to credibility findings of state jury); Bunting v. Kelly, No. 87 Civ. 120, 1987 WL 10734 (S.D.N.Y. May 7, 1987) (1987 U.S. Dist. LEXIS 3593) (same); Hinton v. Scully, No. 85 Civ. 0162, 1985 WL 1431 (S.D.N.Y. May 30, 1985) (LEXIS, Genfed library, Dist file) (same).

Rather, the court must ask itself whether the jury could have rationally returned a verdict of guilty on all counts if it believed all the evidence tending to support that verdict. See Tibbs v. Florida, 457 U.S. 31, 45 n. 21, 102 S.Ct. 2211, 2220 n. 21, 72 L.Ed.2d 652 (1982) (if jury believed testimony of sole eyewitness, despite its weaknesses, due process standard of Jackson v. Virginia was satisfied).

In order to return the verdict of guilty on all counts, the jury must have believed either or both of two scenarios: (1) that petitioner participated in the robbery inside the bar; or (2) that petitioner drove the getaway car, and did so of his own volition, with the intention of assisting the robbers.

As previously discussed, at trial, petitioner did not dispute that he drove the getaway car and that he jumped out of the driver's seat at or just before the time the car crashed.

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