Campbell v. Fischer

103 F. App'x 683

• Court: Court of Appeals for the Second Circuit
• Decided: July 14, 2004
• Docket: No. 03-2574
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Petitioner-Appellant Tyrone Campbell was convicted, after a jury trial in the Supreme Court of the State of New York, Queens County, of robbery, reckless endangerment, and possession of a weapon, in connection with the armed robbery of a jewelry store. Petitioner now appeals the district court’s (Weinstein, J.) denial of his petition for a writ of habeas corpus. The district court certified just one issue for appeal to this Court: whether Campbell’s constitutional right to due process of the laws was violated when the trial court refused to give a “missing witness” charge.

The only issue at trial was whether Campbell was one of the three perpetrators. One witness identified Campbell as a perpetrator. A second witness was not able to identify him in a lineup, and was not called by the prosecution at trial. Defense counsel requested a missing witness charge, contending that the witness was knowledgeable about a material issue. See People v. Kitching, 78 N.Y.2d 532, 536-37, 577 N.Y.S.2d 231, 583 N.E.2d 944 (1991) (reversing a conviction for sale and possession of a controlled substance in the third degree, due to the trial court’s erroneous denial of defendant’s request for a missing witness charge). The trial court denied the request.

Having examined all the evidence before the jury, we conclude that any error was harmless under either the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 638-39, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) or that established by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We have considered all of petitioner’s claims and, finding them meritless, AFFIRM the judgment of the district court.