Appeal from the United States District Court for the Eastern District of New York (Weinstein, Ch.J.) denying an application for a writ of habeas corpus. Affirmed.
Newman, Cardamone and Davis,*fn* Circuit Judges. Jon O. Newman, Circuit Judge, dissenting in part and concurring in part.
CARDAMONE, Circuit Judge:
This appeal is from the denial of habeas corpus relief in the Eastern District. Defendant, Thomas Mallette, was convicted in New York State Supreme court for manslaughter in the first degree after a passenger seated in the front seat of his auto shot and killed a 16-year-old Brooklyn youth. Defendant raises two issues on appeal. He claims, first, that his sentence was enhanced because of his refusal to identify his passenger. Second, he argues, since he himself saw no evil, heard no evil and spoke no evil that the evidence of intent before the state court jury was insufficient to support his manslaughter conviction. Neither argument is persuasive. The State court trial judge did not enhance, but merely refused to show leniency when imposing sentence on defendant. The second argument is flawed because the question for the jury is not whether he heard or spoke evil, but whether he had an intent to do evil.
Mallette was indicted for murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the first degree. The first degree manslaughter count on which he was convicted was a lesser included offense to second degree murder. He was also found guilty of attempted murder and the weapons count. The sufficiency challenge is raised only as to the manslaughter conviction.
When defendant appeared for sentencing, the prosecutor asked that the maximum sentence be imposed because of the nature of the crimes and because the defendant, by refusing to identify the killer, had shown no remorse. Defense counsel argued that Mallette should be shown leniency because he had no prior criminal history and was a 29-year-old married man with children. At sentencing, the state trial judge took Mallette's assertion that he feared reprisal at face value, but noted that the jury had rejected Mallette's duress claim. The state judge observed that while Mallette may have been afraid to reveal the man's name:
it thwarts justice and an innocent boy . . . of 16 with no prior record of any kind is dead. And if Mr. Mallette were willing to assist us, to bring the other person to justice I would find it very easy to be reasonable and lenient.
The trial judge emphasized that Mallette was an active participant in the homicide and that he had twice driven his car back to the scene of the original shooting while his passenger attempted to kill the other youths at the scene. Finally, the trial judge noted that Mallette had ample opportunity to escape when stopped later by the police. The sentencing court also commented that the defendant had lied when he claimed not to know his passenger's true identity. Defendant's sentence was imposed concurrently on all counts: 7 to 21 years on the manslaughter and murder counts and a maximum 5 to 15 years on the weapons count. Under New York Penal Law § 70, the maximum sentence on the first two counts is 8 1/3 to 25 years. The maximum sentence was not imposed, the state judge explained, because Mallette had no previous record. The Appellate Division affirmed Mallette's conviction and the Court of Appeals denied leave to appeal.
Appellant then instituted a habeas proceeding in the United States District Court for the Eastern District of New York before Judge Jack B. Weinstein. The district court judge denied defendant's application for a writ concluding that Mallette failed to raise a constitutional issue that warranted federal intrusion into a state criminal matter.
The scenario for this senseless slaying developed as follows. An unidentified corrections officer referred to as "Eddie" and Mallette had met in a Brooklyn bar five or six times before the night of the fatality. Both were residents of Staten Island. After a number of drinks at the same Tollgate Bar on the night of the killing, the two left in Mallette's green Volkswagen and drove to a park in Brooklyn. They stopped at the corner of Tenth Avenue and 42nd Street. Perez, Martinez and several other youths were sitting on a park bench a few feet away. The youths testified that the occupants of the Volkswagen asked them for cocaine and they responded that they had none and did not know anyone who did. Eddie then summoned Martinez to the car and questioned him again about cocaine. Martinez testified that when he approached the car he observed a gun on Eddie's lap. When Martinez repeated that he knew of no one selling cocaine, Eddie became abusive. Perez and Jiminez then approached the car to see what was happening. As the two came toward Mallette's car, Eddie opened fire. Perez cried out: "I've been shot." After Eddie fired three or four more shots, the Volkswagen sped off. Immediately following the shooting of Perez, Mallette made a U-turn and chased Martinez -- who was on foot and running -- the wrong way up a one-way street, while his passenger fired out the car window at the fleeing youth. After driving once around the park, Mallette then drove back to the same park corner where the youths were now gathered around their wounded friend, Perez. As the car approached, Eddie opened fire again. After this second shooting spree, Mallette and Eddie drove uptown. Mallette testified that Eddie had said that all the kids in that park "deserved what this kid got." Less than a half hour later, as Perez still was lying in the street with a bullet wound to his stomach, and the other youths were describing the preceding events to police officers, defendant and Eddie returned a third time. When the boys identified the Volkswagen, the police gave chase, but lost defendant's car. Perez died a few days later.
Later, the same morning, while defendant and his passenger were enroute to Staten Island, a police captain stopped them. When Eddie showed a badge identifying himself as a corrections officer, they were allowed to proceed. The same police officer stopped defendant's car again a short while later at the entrance to the Verrazano Bridge. Mallette exited the car and produced his license and registration, while his passenger remained seated inside. Mallette said nothing to the captain about the shooting on either occasion. Still later that morning according to Mallette, Eddie threatened to shoot him and his family if he ever said anything about the incident.
Mallette testified in his own behalf. His defense consisted of adopting a posture of "see no evil, hear no evil and speak no evil." Thus, he testified he stopped his car at the park corner right before the fatal shooting of Perez, because Eddie wanted to, but that he (Mallette) "did not know why" and "did not ask." Although it was a hot summer night and Eddie was wearing only a shirt and trousers Mallette testified that he did not see the gun in Eddie's lap that Martinez had observed because he was "looking straight ahead." He knew that his passenger was a corrections officer. The gun was of a size and type that policemen ordinarily carry. Mallette says he did not hear Eddie questioning Martinez about cocaine because "he was not listening." Finally, defendant failed to inform the police captain about the shooting because he "didn't have a chance to say anything." The jury in reflecting on Mallette's credibility, knew that he had testified that he knew nothing about Eddie; yet, later in the trial when confronted with an earlier statement that he had made in which he described Eddie as his friend, Mallette admitted that he knew who Eddie was, but was unwilling to reveal his identity. Mallette also claimed that he never went back to the Tollgate Bar after the shooting, this conflicted with the testimony of ...