Opinion Bank # O-309 (Re: NCJIC  256.6.1.8 [Voluntary Intoxication: Any Degree Of Intoxication Must Be Considered].)

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Stevenson v. Strack (SD NY, May 11, 1999) 1999 WL 294805

UNITED STATES DISTRICT COURT

William STEVENSON, 

                            Petitioner,                                                            No. 96 CIV 8429(DC)

v.

Wayne L. STRACK, Superintendent, 
Fishkill Correctional Facility, 

                            Respondent.

_______________________________________/

William Stevenson, Wallkill Correctional Facility, Wallkill, Petitioner Pro Se.

Robert T. Johnson, Esq., Bronx County District Attorney, By Robert L. Moore, Esq., Genevieve A. Felix, Esq., Assistant District Attorneys, Bronx.

MEMORANDUM DECISION

CHIN, D.J.

   Pro se petitioner William Stevenson brings this petition seeking a writ of habeas corpus pursuant to  28 USC 2254, challenging his state court convictions for attempted murder and assault. For the following reasons, the petition is denied.

BACKGROUND

    Stevenson was tried in N.Y. Supreme Court, Bronx County, in November 1987 for the attempted murder and assault of his wife and step-daughter. The evidence introduced at trial  [Footnote 1] established that on June 5, 1984, at approximately 6:30 a.m., Stevenson entered the apartment where his wife, Robin Stevenson, and her children, Turrell and Talaya, were asleep. When Robin told Stevenson to leave her alone, Stevenson told her she was "no good" and "didn't need to live." Stevenson stabbed Robin under the left side of her chest saying, "Bitch, you [are] going to die," and then stabbed her twice in her abdomen, once on her right hand, and once above her right elbow. He also slashed Robin across her left eye and stabbed her twice in her left leg. The attack resulted in the loss by Robin of her spleen as well as a portion of her stomach, and damage to her leg requiring a permanent foot brace. 

    Robin's seven-year-old daughter, Talaya, saw Stevenson stabbing her mother and ran out of the apartment. Stevenson chased Talaya down a stairwell, grabbed her, and threatened to stab her if she did not jump out of the window that was in the stairwell between the second and third floors. When Talaya grabbed the window's safety bars, Stevenson pulled Talaya's hands away from the bars, causing her to fall to the second-floor ledge.

    After a jury trial, Stevenson was convicted on November 13, 1987 of two counts of Attempted Murder in the Second Degree,  N.Y. Penal L. S 125.25[1], one count of Assault in the First Degree,  N.Y. Penal L. S 120.10[1], and two counts of Assault in the Second Degree,  N.Y. Penal L. S 120.05[2]. Stevenson was sentenced to concurrent, indeterminate prison terms of: from eight and one- third to twenty-five years for the attempted murder counts, from five to fifteen years for the first-degree assault count, and from two and one-third to seven years for the second-degree assault counts.

    The Appellate Division modified Stevenson's conviction by reversing and dismissing his conviction of second-degree assault by use of a knife, and otherwise affirmed. See  People v. Stevenson, 550 N.Y.S.2d 306 (1st Dep't 1990). The New York Court of Appeals denied leave to appeal, see  People v. Stevenson, 558 N.Y.S.2d 905 (1990), and then denied Stevenson's renewed application, see  People v. Stevenson, 568 N.Y.S.2d 925 (1990).

DISCUSSION

    Stevenson asserts three claims in his petition for habeas corpus: (1) he was denied a fair trial based on the trial court's charge to the jury; (2) he was denied his right to due process because the trial court improperly allowed cross-examination regarding his prior convictions; and (3) he was denied due process because the trial court admitted into evidence the prior statement of victim Robin Stevenson to a social worker.

    A.     General Standards for Habeas Relief

    A state petitioner seeking federal court review of a conviction pursuant to  28 USC 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States."  28 USC 2254(a). Federal habeas corpus relief is not warranted to correct errors of state constitutional, statutory, or procedural law unless a federal issue is also presented.  28 USC 2254(d); see  Estelle v. McGuire, 502 U.S. 62, 68 (1991) (holding that federal habeas corpus "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States"). The question therefore in any habeas corpus proceeding is "whether the petitioner's federal constitutional rights were violated."  Montalvo v. Portuondo, No. 97 Civ. 3336, 1998 WL 851589, at 6 (S.D.N.Y. Dec. 9, 1998).

    A.     The Jury Charge

    Stevenson asserts as his first ground for habeas relief that the trial court's jury charge deprived him of a fair trial.

            1.     Legal Standard

    Errors in state jury charges are questions of state law and therefore are not reviewable on a petition for a writ of habeas corpus absent a showing that the jury charge deprived the defendant of a federal constitutional right. See  Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990);  United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir.), cert. denied,  423 U.S. 872 (1975). The standard of habeas review of state jury instruction "is not whether the state court's 'instruction is undesirable, erroneous, or even "universally condemned," ' but whether 'the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." '  Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978) (quoting  Cupp v. Naughten, 414 U.S. 141, 146-47 (1970)); see  Blazic, 900 F.2d at 541.

            2.     Petitioner's Allegations

                    a.     Refusal to Charge Lesser Included Offense

    Stevenson claims that although the trial court agreed there was sufficient evidence to give an intoxication charge, it refused to charge reckless assault as a lesser included offense, "thereby depriving the jury of any meaningful alternative to the specific intent charges submitted for its consideration." (Pet'n Rider at 2).

    To establish entitlement to a lesser included offense charge, a defendant must show that "(1) it is theoretically impossible to commit the greater crime without committing the lesser and (2) a reasonable view of the evidence would permit the jury to find that the defendant had committed the lesser, but not the greater, offense ."  Rice v. Hoke, 846 F.2d 160, 165 (2d Cir.1988); see  Keeble v. United States, 412 U.S. 205, 208 (1973); N.Y.Crim. Proc. L. S 300.50(1).

    Here, it is not disputed that Stevenson's conduct satisfied the first prong:

    Reckless assault is a lesser included offense of intentional assault. See  N.Y. Penal L. SS 120.10(1),  120.05(4); see also  People v. Green, 452 N.Y.S.2d 389, 392 (Ct.App.1982) (holding that lower mental states are "necessarily included in the higher forms of mental culpability"). Stevenson fails to satisfy the second prong, however, for no reasonable view of the evidence supports a finding that he committed reckless assault as opposed to intentional assault. The record fully supports the state court's finding that petitioner acted intentionally. See  Knapp v. Leonardo, 46 F.3d 170, 175 (2d Cir.) ("[F]actual findings of trial and appellate state courts are presumed to be correct in federal habeas proceedings unless they are not 'fairly supported by the record." '), cert. denied,  515 U.S. 1136 (1995). Petitioner, for example, told Robin immediately prior to the attack that she was "no good" and "did not need to live," and stabbed her eight times while saying that she was going to die.

    Evidence of intoxication may be considered as negating the element of intent. See  N.Y. Penal L. S 15.25;  People v. Isrile, 406 N.Y.S.2d 491 (1st Dep't 1978). Although the trial court gave petitioner the benefit of an intoxication instruction, the record supports the Appellate Division's finding that "the issue of [petitioner's] intoxication should not have been submitted to the jury."  People v. Stevenson, 550 N.Y.S.2d 306, 308 (1st Dep't 1990). As the Appellate Division found, there was insufficient evidence of intoxication for a reasonable person to entertain a doubt regarding Stevenson's intent. Id.; see  People v. Orr, 350 N.Y.S.2d 750, 751 (1st Dep't) ("The charge should be given if there is sufficient evidence of intoxication in the record for a reasonable man to entertain a doubt as to the element of intent on that basis."), aff'd,  362 N.Y.S.2d 862 (1974). While his brother observed petitioner drinking, for example, that observation was several hours before the attack and the brother did not state that petitioner exhibited signs of intoxication. In addition, petitioner's mother, who also saw petitioner the night before the attack, did not mention that he had been drinking. Accordingly, petitioner was not entitled to the lesser included charge of reckless assault and therefore the trial court did not violate state law, let alone deprive petitioner of due process.

                    b.     Intoxication Evidence

    Stevenson also claims that the trial court's jury charge on intoxication was unbalanced because it failed to mention critical defense evidence. It appears as though the evidence to which petitioner refers is his brother's testimony that petitioner was drinking alcohol approximately six or seven hours before the attack.

    As discussed above, however, petitioner was not entitled to the intoxication charge in the first instance because there was insufficient evidence of intoxication for a reasonable person to entertain a doubt regarding intent. In any event, having reviewed the trial court's charge on intoxication, [Footnote 2] I find that the charge was balanced. The trial court was not required to marshal the evidence for the jury, except to the extent necessary to explain the application of the law to the facts and to ensure that the charge was balanced. See  United States v. GAF Corp., 928 F.2d 1253, 1263 (2d Cir.1991);  People v. Saunders, 485 N.Y.S.2d 250, 250 (Ct.App.1984); see also N.Y.Crim. Proc. L. S 300.10(2). Further, even if failure to include evidence of petitioner's purported intoxication were error, such error would be harmless because of the overwhelming and undisputed evidence against petitioner. 

                    c.     Burden of Proof

    Finally, Stevenson claims that in its charge to the jury, the trial court "shifted the burden of proof to [petitioner] on the essential element of intent." (Pet'n Rider at 3). Specifically, petitioner asserts that the charge emphasized that intoxication was not a defense by failing to state that the prosecution had the burden of disproving petitioner's claim that he was intoxicated. (Pet'n at 5).

    As mentioned above, the record supports the Appellate Division's ruling that petitioner was not entitled to the intoxication charge in the first instance. In any event, I find that the charge was fair and did not unduly shift the burden to petitioner. The court did not state that it was petitioner's burden to prove that he was intoxicated. The charge did, however, state that it was the prosecution's burden to prove intent beyond a reasonable doubt. (Felix Aff. Ex. 1 at 18). Further, the trial court clearly explained how a finding that Stevenson was intoxicated could negate intent:

    [Stevenson] cannot be guilty of Attempted Murder in the Second Degree, Assault in the First Degree or Assault in the Second Degree if at the time he committed the acts he was so under the influence of intoxicating liquors that he was unable to form or incapable of having the specific intent to commit the Crimes of [Attempted] Murder in the Second Degree, Assault in the First Degree or Assault in the Second Degree. Specific intent, as I've already stated, is a necessary element of those crimes. I charge you further ... that if you believe this [d]efendant, although he may have been drinking, was still capable of forming a specific criminal intent [albeit] a drunken one, then his responsibility is the same as if he were perfectly sober.

(Id. at 17-18 (first three alterations added)). The court also stated that: "[A]ny intoxication, not merely total intoxication, may be considered by the jury in determining whether the [d]efendant possessed the required intent to commit the crimes charged." (Id. at 18 (second alteration added)).

    Moreover, petitioner does not present any evidence that the challenged portion of the charge was unfair "in the context of the overall charge."  Justice v. Hoke, 45 F.3d 33, 34 (2d Cir.1995) (quoting  Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).

    B.     The Trial Court's Sandoval Ruling

    At a pretrial hearing, the prosecution sought to introduce evidence of Stevenson's prior convictions. The trial court ruled that, in the event Stevenson chose to take the stand, the prosecution would be permitted to ask him about the following: (1) the underlying facts of his 1977 trespass conviction; (2) whether he had been convicted of disorderly conduct in 1982; and (3) his July 1979 and February 1980 cases involving assaults with a knife. The court further ruled that the prosecution could not cross-examine Stevenson regarding a pending 1984 case or the underlying facts of his disorderly conduct conviction. In light of these rulings, Stevenson chose not to testify at trial.

    Stevenson asserts that the trial court's rulings deprived him of his right to testify on his own behalf. He argues that the trial court misapplied  People v. Sandoval, 357 N.Y.S.2d 849 (Ct.App.1974), in failing to give proper weight to the need for Stevenson's testimony regarding the defense theory of lack of intent. Stevenson also argues that the trial court did not give proper weight to the "remote in time" and "similar" nature of Stevenson's prior convictions.

    It is well-settled that a petitioner's failure to testify at trial is fatal to any claim of constitutional deprivation arising out of a Sandoval- type ruling.  Luce v. United States, 469 U.S. 38, 43 (1984) (dismissing direct appeal from federal conviction based on challenge to district court's ruling that a prior conviction constituted permissible evidence for limited impeachment under  Fed.R.Evid. 609(a), on the ground that defendant failed to testify at trial); see also  Peterson v. LeFevre, 753 F.Supp. 518, 521 (S.D.N.Y.) (dismissing habeas petition based on alleged deprivation of right to testify arising from trial court's Sandoval ruling on the ground that defendant failed to testify at trial), aff'd,  940 F.2d 649 (2d Cir.1991).

    The Luce doctrine has been held to apply to federal habeas corpus review of state court convictions.  Carrasquillo v. Kirk, 677 F.Supp. 193, 194 (S.D.N.Y.1988). A habeas petitioner's failure to testify at trial is "fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling because," absent such testimony, a court "has no adequate non- speculative basis upon which to assess the merits of that claim."  Peterson, 753 F.Supp. at 521 (citing  Carroll v. Hoke, 695 F.Supp. 1435, 1439-40 (E.D.N.Y.1988), aff'd,  880 F.2d 1318 (2d Cir.1989));  Underwood v. Kelly, 692 F.Supp. 146, 151 (E.D.N.Y.1988), aff'd,  875 F.2d 857 (2d Cir.), cert. denied,  493 U.S. 837 (1989). Here, Stevenson chose not to testify at trial. Accordingly, his petition for habeas corpus relief based on this ground is denied.

    C.     Victim's Prior Statements

    Finally, Stevenson claims that the trial court's erroneous admission of privileged communications between the victim and her social worker violated his right to due process.

    To prevail on a claim of evidentiary error, a habeas petitioner must show that the error was "so pervasive as to have denied him a fundamentally fair trial."  Collins v. Scully, 755 F.2d 16, 18 (2d Cir.1985); see  United States v. Agurs, 427 U.S. 97 (1976). Under this standard, the petitioner must show that there is a reasonable probability that the erroneously admitted evidence affected the jury's decision.  Collins, 755 F.2d at 19 (stating that the standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it").

    During an interview with a social worker ten days after the stabbing, Robin stated that Stevenson had attacked her in a "drunken, jealous rage."  [Footnote 3] Stevenson sought to introduce Robin's statement as a prior inconsistent statement to impeach her trial testimony that Stevenson was not intoxicated at the time of the attack. Rather than admit into evidence the one statement Stevenson sought to introduce, the trial court admitted the social worker's entire report in which Robin had expressed her feelings about the stabbing.

    Statements made by Robin to the social worker were confidential communications protected from disclosure pursuant to law and, thus, were erroneously admitted. See  N.Y. C.P.L.R. 4508; see also  People v. Tissois, 531 N.Y.S.2d 228 (Ct.App.1988). Stevenson asserts that the admission into evidence of Robin's entire prior statement denied him due process because the information was inflammatory and prevented fair deliberation by the jury. 

    Considered in the context of the overwhelming evidence of Stevenson's guilt, I find that the trial court's erroneous admission of the social worker's report did not alter the outcome of the trial. See  Vargas v. Hoke, 664 F.Supp. 808, 812 (S.D.N.Y.1987) (finding that an erroneously admitted prior statement "was of trivial importance" and "added little to the People's already compelling case" where defendant's attempted murder conviction was adequately supported by testimony of victim that defendant had stabbed him repeatedly). The error was not so pervasive as to deny Stevenson a "fundamentally fair trial."  Collins, 755 F.2d at 19. Accordingly, Stevenson's petition for habeas corpus relief based on this ground is also denied.

    D.     Certificate of Appealability

    As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See  28 USC 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. See generally  Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir.1997); see also  Rodriguez v. Scully, 905 F.2d 24, 24 (2d Cir.1990) (per curiam);  Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir.1979). This Court certifies pursuant to  28 USC 1915(a)(3) that any appeal from this order would not be taken in good faith. See  Coppedge v. United States, 369 U.S. 438 (1962).

CONCLUSION

    For the reasons set forth above, Stevenson's application for a writ of habeas corpus is denied. The petition is dismissed and a certificate of appealability will not issue. The Clerk of the Court shall enter judgment accordingly.

SO ORDERED.

FOOTNOTES:

Footnote 1:  Neither party has submitted a copy of the trial transcript, and respondent represents that he has been unable to obtain the transcript. The Court can nonetheless decide the instant petition without the transcript. Rule 5 of the Rules Governing S 2254 Cases permits the use of "a narrative summary of the evidence" in lieu of an unavailable state court transcript. See also  Bundy v. Wainwright, 808 F.2d 1410, 1415 (11th Cir.1987) ("If no transcript is available, a narrative summary may be furnished."). Further, petitioner does not contest any of the facts adduced by respondent or included in the Appellate Division's decision. Moreover, petitioner appears to have his own copy of the record. (Letter from petitioner to the Court (Dec. 7, 1998)). See  Martinez v. Johnson, 104 F.3d 769, 773 (5th Cir.) (ruling that the district court did not abuse its discretion by denying petitioner's request to discover portions of the record where petitioner "had copies or portions of copies of his state court record and did not explain why he no longer had access to them"), cert. denied,  118 S.Ct. 195 (1997). Finally, the relevant portions of the record were included in the respondent's record. Respondent submitted a copy of petitioner's appellate brief, for example, which includes the trial court's charge to the jury on intoxication that petitioner challenges. (Felix Aff. Ex. 2).

Footnote 2:  The intoxication charge was reproduced in the brief petitioner filed with the Appellate Division. (See Felix Aff. Ex. 1 at 16-18).

Footnote 3:  In contrast, at trial Robin testified that Stevenson was not drunk at the time of the attack and that she did not recall telling anyone that Stevenson had been drunk.