Sanders v. Sullivan
| Decision Date | 08 January 1988 |
| Docket Number | No. 85 Civ. 4014 (CBM).,85 Civ. 4014 (CBM). |
| Citation | 701 F. Supp. 1000 |
| Parties | Walter SANDERS, Petitioner, v. James E. SULLIVAN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Henry Putzel, III, Obermaier, Morvillo & Abromowitz, P.C. by Alan J. Brudner, New York City, for petitioner Walter Sanders.
Robert M. Morgenthau, Dist. Atty., New York County by Marc Frazier Scholl, Robert M. Raciti, New York City, for respondent James E. Sullivan.
Walter Sanders petitions this court, pursuant to 28 U.S.C. § 2254(a) (1982), for a writ of habeas corpus to set aside an April 19, 1982 judgment of the New York Supreme Court, New York County, Hon. Fritz W. Alexander II, J., convicting him, after a jury trial, of manslaughter in the second degree (N.Y.Penal L. § 125.15 (McKinney 1987)), two counts of robbery in the first degree (N.Y.Penal L. § 160.15 (McKinney 1975)), robbery in the second degree (N.Y. Penal L. § 160.10 (McKinney 1975)), criminal possession of a weapon in the second degree (N.Y.Penal L. § 265.03 (McKinney 1982)), and criminal possession of a weapon in the third degree (N.Y.Penal L. § 265.02 (McKinney 1982)).
Sanders appealed his conviction to the Appellate Division, First Department, claiming error in the discharge of a juror during the trial and prosecutorial misconduct. The First Department affirmed the conviction without opinion on January 31, 1984. People v. Sanders, 99 A.D.2d 686, 471 N.Y.S.2d 727 (1984). Sanders was denied leave to appeal to the New York Court of Appeals on May 16, 1984.
On October 9, 1984, Sanders moved for relief pursuant to N.Y.Crim.Proc.L. § 440.10 (McKinney 1983), alleging ineffective assistance of counsel and knowing use of perjured testimony by the prosecutor. The Supreme Court, New York County, denied the motion without a hearing on March 8, 1985, and Sanders' application for leave to appeal was denied.
Sanders advances four grounds for habeas relief in his petition to this court, filed April 22, 1985: (1) Prosecutorial misconduct in insinuating that a witness did not exist whom the prosecutor knew had testified before the grand jury and whose testimony at trial would have been exculpatory; (2) Improper discharge of the jury foreperson at the close of the Government's case when she stated that she could not vote to return a guilty verdict; (3) Ineffective assistance of counsel; and (4) The prosecutor's knowing use of perjured testimony.1
It is apparent from the foregoing that Sanders has exhausted his state remedies with respect to the claims in his petition. He pursued the first two claims to the New York Court of Appeals, where leave to appeal was denied; as for the second two claims, there is no appeal as of right of the denial of a § 440.10 coram nobis motion. N.Y.Crim.Proc.L. § 450.15 (McKinney 1983).
In an opinion filed January 21, 1987, this court found that Sanders' claims of ineffective assistance and prosecutorial use of perjured testimony required an evidentiary hearing, and granted Sanders's motion for appointment of counsel. The hearing was held on June 19, 1987. Counsel for Sanders filed proposed findings of fact and conclusions of law on August 17, 1987; the State's proposed findings and conclusions were received in chambers on August 18, 1987; petitioner's reply to those proposed findings and conclusions was filed on August 31, 1987; and a brief by the State in reply to petitioner's proposed findings and conclusions was received in chambers on September 1, 1987.
The facts underlying the offense of which petitioner was convicted are as follows. Petitioner and his accomplice, one Omar Sabir (also known as Bruce Thomas), who were ostensibly interested in a drug buy, approached Carmelo Perez, a known drug dealer, in the hallway outside the Harlem apartment in which Perez lived with his common-law wife, Irma Semiday. Petitioner claimed at trial that he and Sabir were trying to buy drugs from Perez, as instructed by a man petitioner knew only as "Eric," who had entrusted him with $500 for the purchase. Perez, however, claimed that petitioner and Sabir proceeded to rob him at gunpoint. Sabir's views remain unknown, because he was killed by a gunshot during the dispute that broke out between the two visitors and Perez. According to Perez, both petitioner and Sabir confronted him in the hallway and then fired their guns across the hall in the general direction of Irma Semiday when she opened her door to see what was happening outside the apartment. There was evidence at trial that one of the shots fired from petitioner's gun hit and killed Sabir. Petitioner, taking the stand in his own defense, contested this version of the events, claiming that he did not fire the shot that killed Sabir and, indeed, denying that he even possessed a gun on the day of the shooting. According to petitioner, the fatal shot was fired by Irma Semiday who, having armed herself, surreptitiously reopened her door.
On February 23, 1982, after the State rested on its direct case, the jury foreperson, Ms. Peggy Fybish, asked to be excused from further service because she "had become prejudiced and could no longer serve as a fair and impartial juror." Transcript, People v. Sanders, Indictment No. 5530-80, at 471 (hereinafter Transcript). The court immediately conducted a hearing on this request, found that the juror's self-assessment was correct, and ordered her discharged, as it had the power and obligation to do under N.Y.Crim.Proc. L. § 270.35 (McKinney 1982).2 Petitioner claims that this was error.
A federal habeas court's power to review the factual findings of a state court is limited. Under 28 U.S.C. § 2254(d), this court must presume the correctness of the state court's factual findings unless one of eight enumerated circumstances obtains. 28 U.S.C. § 2254(d)(1)-(8). Under the last of these circumstances — that this court, on examination of the relevant parts of the record, should "conclude that the state court's factual determination is not fairly supported by the record," it would of course be compelled to find the state court in error.
We can, however, draw no such conclusion from the record. Petitioner asserts that the discharge of Ms. Fybish violated his right to a fair trial. He observes, quite correctly, that jurors necessarily form tentative conclusions at every stage in a trial, and argues that Ms. Fybish differed from the other jurors in this case only by being more vociferous in expressing those tentative opinions. This court cannot agree. The minutes of the hearing disclose that Ms. Fybish had been experiencing a combination of extrajudicial problems. She was consistently late for trial, supposedly because she had not been receiving her unemployment checks and was very low on money. Transcript at 477. The day of the hearing she complained that she had broken her glasses and would not be able to see if they broke again. Id. More importantly, Ms. Fybish expressed more than the merely tentative conclusions each juror necessarily forms throughout a case. She asserted that she found many features of the People's case to be "inconsistent, incredible, unbelievable," id. at 473. She had developed the conviction that without the introduction of the murder weapon into evidence or at least an explanation of its disappearance, petitioner could not be convicted, id. at 480-81, even though petitioner was charged with crimes of which possession of a weapon is not an element. Although she said her mind was "not totally shut," id. at 480, when asked by the trial judge "You are saying you have already made up your mind about the case, is that the long and short of it?," id. at 476, she responded Id. On these facts, under the presumption of correctness established by § 2254(d), this court holds that the trial court was well within the limits of § 270.35 in discharging this juror. Cf. People v. Perkins, 124 Misc.2d 1060, 478 N.Y.S.2d 789, 790 (1984) ().
In any case, Ms. Fybish was replaced by an alternate juror who had been present throughout the trial. If, as petitioner maintains, Ms. Fybish was still capable of impartiality, the trial court merely "replaced one impartial juror with another impartial juror," an action that surely cannot have deprived petitioner of his right to a fair trial.3
Throughout the trial, petitioner tried to establish that he and Sabir had not been robbing Perez when Sabir was shot but had been purchasing drugs at the request of, and with money supplied by, a man named "Eric." "Eric," petitioner claims, is one Eric Grant, who was incarcerated at the time of petitioner's trial and had in fact testified before the grand jury. Petitioner argues that by referring to Eric as "last name unknown" on a number of occasions,4 the Petition at 4-C.
This court is unable to accept petitioner's contentions. Each reference to "Eric" complained of by petitioner can be construed as an attempt to cast doubt on the strength of the alleged friendship between petitioner and Eric, rather than as an attempt to cast doubt on Eric's existence. Two examples should suffice.
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