Shaheed v. Martuscello
| Decision Date | 10 January 2011 |
| Docket Number | 10 Civ. 3288 (BMC) |
| Parties | TARIQ SHAHEED, Petitioner, v. D. MARTUSCELLO, Superintendent, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner brings this proceeding under 28 U.S.C. § 2254 seeking review of his state court convictions for illegal weapons possession, reckless endangerment, resisting arrest, and drug possession, for which he was sentenced to fourteen years on the weapons count and lesser concurrent time on the other counts. The charges arose out of petitioner's firing of multiple shots at a home; the police apprehended him shortly after the shooting following a high speed car chase ending in a crash, together with the gun and ammunition which matched that used in the shooting.
Petitioner raises three points of error in his timely petition, all of which are exhausted: (1) the trial court improperly sustained the prosecutor's reverse-Batson objection, so that two of the six Asian-American jurors against whom petitioner attempted to exercise peremptory challenges were seated; (2) the trial court improperly rejected a missing witness instruction; and (3) the trial court improperly sustained an objection to a police officer testifying on cross-examination as to an arguably exculpatory statement that petitioner made at the time of his arrest.
Familiarity with the facts is assumed, although some additional facts will be set forth as necessary to address petitioner's arguments. For the reasons set forth below, none of these claims have merit and the petition is therefore denied.
Petitioner exercised peremptory strikes against each of the six Asian-Americans that appeared in his venire. The trial court denied the prosecutor's objection under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), after the third strike, finding no prima facie case of discrimination, as well as another objection after the fourth strike, finding that the prosecutor had demonstrated a prima facie case but that petitioner had offered non-pretextual reasons for objecting to the Asian-American venire persons. However, the trial court sustained additional objections as to the fifth and sixth strikes after petitioner's trial counsel claimed that the decisions to strike were "strategic" because petitioner wanted to seat specific other members of the venire (non-Asian-Americans) to whom she had not even spoken, and her other reasons were inconsistent with her decision not to strike other non-Asian-American jurors.
There is no right to exercise peremptory challenges under the Constitution. Rivera v. Illinois. — U.S. —, 129 S. Ct. 1446, 1450 (2009). Habeas relief will only lie if the result of disallowing a defendant's peremptory challenges is that the jury is not impartial, and if that is the case, the Batson issue is largely immaterial because a petitioner always has a right to an impartial jury. Id at 1454. In light of Rivera, petitioner cannot show that the state court's decision wascontrary to or an unreasonable application of Supreme Court precedent. See 28 U.S.C. §2254(d); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495 (2000).1
In addition, there was nothing wrong with the trial court's application of the Batson procedure. It followed the three-step procedure according to Batson. Relief here would be particularly inappropriate given the deference this Court must give to the trial court's findings of fact. Even in the context of a Batson as opposed to a reverse-Batson challenge, the determination at step three is a finding of fact that is accorded "great deference" and reviewed for clear error on direct appeal; "the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed." Hernandez v. New York, 500 U.S. 352, 364-65, 111 S. Ct. 1859 (1991). This deference "stems from the fact that the best evidence of the credibility vel non of a race-neutral explanation will often... be the demeanor of the attorney who exercises the challenge, and such evaluations of demeanor lie [ ] peculiarly within a trial judge's province." Messiah v. Duncan, 435 F.3d 186, 196 (2d Cir. 2006) (internal citations and quotation marks omitted). On collateral review of a Batson challenge, to grant relief based on a state court's determination at step three, "a federal habeas court must find the state-court conclusion [to be] 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Rice v. Collins. 546 U.S. 333, 338, 126 S. Ct. 969 (2006) (quoting 28 U.S.C. § 2254(d)(2)). In addition, under 28 U.S.C. § 2254(e)(1), the determinationis "presumed to be correct, " and a defendant has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. at 338-39.
Petitioner's habeas point is based on re-arguing his counsel's effort to persuade the trial court that the strikes were not pretextual. There was more than a rational basis for the trial court's decision to reject that argument. Petitioner's trial counsel struck Asian-Americans who she had not even asked any questions, allegedly to seat two non-Asian Americans in the venire who she knew nothing about and might not have been seated in any event. She attempted to justify this based on relationships the Asian-Americans had with police officers that were more distant than relationships of other non-Asian-American jurors who she did not strike. Even if habeas relief for granting a reverse-Batson challenge was available, petitioner would not be entitled to it.
The people in the house at the time the shots were fired included Yvonne Boxhill (the owner of the house) and two of her relatives, Tyrone Branch and Tyrone Jones (the "Tyrones"). The prosecution called only Boxhill. She did not see the shooting, but observed the car that became the subject of the high speed police chase from her bedroom window after the shots were fired; she then ran to the porch and saw the vehicle again, and observed a person driving who she could not see well enough to identify, driving away.2 She also testified that when she got to her porch, the Tyrones had already gotten there. At the conclusion of the prosecution's case, defense counsel alerted the court that she intended to request a missing witness instruction because theprosecution had not called either of the two Tyrones. Counsel's theory was that since the Tyrones had already arrived at the porch when Boxhill got there, they may have seen more.
"A missing witness charge invites the jury to draw an adverse inference against a party that fails to call a witness whose 'production... is peculiarly within [its] power.'" United States v. Gaskin. 364 F.3d 438, 463 (2d Cir. 2004) (quoting United States v. Mittelstaedt. 31 F.3d 1208, 1216 (2d Cir. 1994)). The Second Circuit has explained that, "[b]ecause we recognize that 'an aura of gamesmanship' frequently accompanies requests for missing witness charges, we afford [trial] judges considerable discretion in deciding when they should and should not be given." Gaskin, 364 F.3d at 463 (citations omitted). In addition, "[l]ike the failure to give any other jury instruction, the failure to issue a missing witness instruction does not raise a constitutional issue and cannot serve as the basis for federal habeas relief unless the failure 'so infected the entire trial that the resulting conviction violated due process.'" Klosin v. Conway. 501 F. Supp. 2d 429, 444 (W.D.N.Y. 2007) (quoting Cupp v. Nauehten. 414 U.S. 141, 147, 94 S. Ct. 396 (1973)).
I see no error at all in the trial court's exercise of its discretion to decline to give a missing witness charge, let alone an error of constitutional magnitude or a disregard of Supreme Court authority by the Appellate Division. A fundamental requirement for a missing witness charge under New York law is that the missing witness would be expected to give testimony favorable to the defendant. See e.g.. People v. Gonzalez. 68 N.Y.2d 424, 427-28, 509 N.Y.S.2d 796 (1986). Here, the defense attorney's favorability argument was premised on the assumption that since the Tyrones had already reached the porch when Boxhill arrived, they must have seen more, and the prosecution therefore tactically chose not to call them because they would have identified a shooter other than petitioner. But that argument was rank speculation, especially since Boxhill gave a very specific identification of the car; the police shortly thereafterapprehended that car with petitioner in it after a high speed chase; and petitioner had ammunition matching that used in the shooting and was observed by the police throwing the weapon used in the shooting from the car during the chase. See Toland v. Walsh, No. 9:04-CV-0773 (GLS), 2008 WL 65583, at *14-15 (N.D.N. Y. Jan. 4, 2008) ().
In addition, there was no evidence that the Tyrones had arrived on the porch more than an instant before Boxhill. Rather, the evidence showed that lots of people in the neighborhood had come running out to see what was happening after the shots were fired; there was no reason to think that this did not include the Tyrones. Viewing the totality of the evidence, the trial court acted well within its discretion, and could have reasonably concluded that it was defense counsel's request for a missing witness instruction, not the prosecution's failure to call the Tyrones, that constituted an attempt at tactical manipulation. See Brown v. Spitzer, No. 05 Civ. 1553 (BMC), 2007 WL 2406870, *3 (E.D.N.Y. Aug. 21, 2007) (...
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