Opinion
02 Civ. 2124 (RWS)
February 12, 2003
RICKI BYNUM, #98-A-2019, Great Meadow Correctional Facility, Comstock, NY, Petitioner Pro Se.
HONORABLE ROBERT M. MORGENTHAU, District Attorney for New York County, By: NICOLE BEDER, ESQ., MORRIE I. KLEINBART, ESQ., Assistant District Attorneys, Of Counsel, New York, NY, Attorneys for Respondent.
OPINION
Petitioner pro se Ricki Bynum ("Bynum") seeks a writ of habeas corpus to set aside his custody grounded in two judgments of the Supreme Court, New York County, rendered on December 13, 1997 and March 26, 1998. In his petition, Bynum raises the exact same grounds that were rejected on appeal.
For the following reasons, the petition is denied.
Facts
The Offense Conduct
Bynum's convictions arose from a string of violent gunpoint robberies that culminated in the point-blank shooting of Police Officer Francis Latimer as Bynum fled from the last of the series of robberies. The robberies began on January 16, 1996, when Bynum got into the livery cab of Domingo Encarnacion ("Encarnacion") at West 157th Street and Broadway. After driving for a few blocks, Bynum drew a pistol, demanded money and ordered Encarnacion out of the car. Bynum fled in the car and abandoned it.
Over the next month, Bynum committed three identical robberies of livery cab drivers Travis Bello, Anthony Stewart ("Stewart") and Sylvester Okoro ("Okoro") near Utica Avenue and Montgomery Place in Brooklyn. Each time, Bynum got into the car and asked the driver to drive him to a destination on a nearby quiet block. When the cab arrived at the destination, Bynum pulled out a large black semiautomatic pistol to effect the robbery. Of this group of victims, Okoro resisted, and petitioner shot him in the leg and fled on foot empty handed.
On August 15, 1996, Bynum robbed livery driver Gilberto Bello at West 152nd Street and Saint Nicholas Place in the same fashion as described above. This time, as he fled in Bello's car, he was spotted by Officer Latimer ("Latimer") and Sergeant Thomas Scollan, in a marked police car. As they followed him, Bynum jumped out of the livery cab, pulled out his pistol and took aim at the police car. As Latimer drove by slowly, Bynum opened fire at Latimer, striking him in the head. Latimer lost control of the police car and it accelerated down the block, plowing into parked cars. Bynum continued to fire on the police car as he escaped on foot. Latimer survived the shooting, though blinded and grievously damaged by the near total destruction of the right temporal lobe of his brain. Latimer has no recollection of the events immediately preceding and following the shooting.
A search of the shooting scene uncovered a partially loaded .40-caliber Glock pistol, which ballistics examination linked to the earlier shooting of Okoro. On August 19, 1996, during a canvass of the neighborhood in which the Brooklyn cab robberies had occurred, one of the Brooklyn victims spotted Bynum and identified him as the assailant. As a result, Bynum was arrested at approximately 7 p.m. that evening.
Bynum's Inculpatory Statement to Detectives
After Bynum's arrest, Detectives James Lynagh ("Lynagh") and Detective John Bourges ("Bourges") questioned Bynum for the first time at 9:45 p.m. on August 19, 1996. Lynagh informed Bynum that he was to be questioned regarding the livery cab robberies; no mention was made of the Latimer shooting. Lynagh read Bynum the standard Miranda warnings, and Bynum waived his rights and signed the form. Lynagh questioned Bynum about the livery cab robberies, and Bynum denied committing the robberies. Lynagh felt that Bynum was "playing with" them and trying to find out what the police knew. Bynum was permitted to eat, drink, use the restroom and take short breaks during the interview, which ended at about 11:30 p.m.
At approximately 12:30 a.m., Brooklyn Detective Anthony Angotti and his partner began questioning Bynum about his whereabouts over the previous few days, but not about the robberies. They talked for about an hour, then left. At no time did Bynum ask for an attorney or to stop the questioning.
Between 3:00 and 3:30 a.m., Bourges and Manhattan Homicide Detective Darryl Hayes ("Hayes") arrived to speak to Bynum again. Hayes questioned Bynum about the cab robberies. Bourges left the room after about 10 minutes. Bynum never asked to stop or to have an attorney. During the interview, Bynum stated that he feared his New Jersey parole might be violated, and he denied committing the robberies. When Hayes told Bynum that he already had information incriminating Bynum in the robberies and shooting, Bynum agreed to make a statement.
At about 5:00 a.m., Hayes summoned Lynagh to take Bynum's statement about those crimes. When Hayes and Lynagh returned, Bynum asked for a lawyer. Hayes, angry that Bynum had wasted the detectives' time "blowing smoke" at them, said "I'm from Manhattan North Homicide Squad and the reason that I was here, I was here to have a statement taken from you in reference to a police shooting in Manhattan." Bynum then remarked, "If I had g[iven] you statements on the car robberies, I would have been fucked on the police shooting."
Lineup Identifications of Bynum
At 8:00 a.m. on August 20, 1996, the morning after Bynum was arrested, Bourges arranged for an eyewitness to the Latimer shooting, Kippax Williams ("Williams"), to view a lineup. Bourges told Williams "to remember the time frame" and "not to be influenced" by facial hair, but to "look at each face" carefully. Bourges then brought Williams into the lineup room, having kept him separate from the participants prior to that time.
Inside, Williams looked through the one-way window at the lineup, and Bourges asked him if he recognized anyone. Williams replied, "Maybe. I don't know. Number two [Bynum] is the closest." Bourges asked Williams "what was different" and "what was the same" about Bynum as compared to the shooter. Williams said that Bynum's build was the same but that he did not recall the shooter having "as much facial hair or as much head hair."
Bourges asked Williams if he would like to look more closely at the participants, and Williams said he would. Number one approached the window, and Williams said it was not him. Bynum then approached, and Williams again remarked that he had the same "build" but that he did not recall as much facial hair. Bourges reminded Williams of the time that had elapsed since the shooting, and Bynum sat down. Numbers three through six approached and each time, Williams again remarked that Bynum appeared to be the shooter except for the facial hair, and he told Bourges that "[h]e wanted to be sure." Bourges asked Williams if he would like to see the participants up close again, and Williams agreed.
This time, the participants approached one at a time in reverse order, beginning with number six. At numbers six through three, Williams quickly answered in the negative for each. When Bynum approached again, Williams again declared that he "just d[id]n't remember as much hair." Bourges asked him which features were the same, and Williams responded, "Everything is the same, I just don't remember as much facial hair." Bynum sat down, and Williams looked at number one and ruled him out. Since Williams had told Bourges that Bynum's "height, weight, complexion, face, everything" but his hair was the same as the shooter's, Bourges asked Williams to grade the similarity on a ten-point scale. Williams gave Bynum an eight. Williams then left the viewing room.
At about 8:30 a.m., Manhattan robbery victim Bello was brought into the viewing room after being properly instructed. Bello did not see Williams prior to the lineup. As Bello looked through the window, Bourges asked him whether he recognized anyone. Bello answered, "Number two [Bynum]. It's not any of the others." Bourges asked Bello about each of the men numbered one, and three through six, whether they could be the robber. Bello replied as to each that he could not. Bello also remarked that he did not "remember as much facial hair" on the robber. Bourges told Bello that he "had to be sure" and asked him again whether Bynum was the robber. Bello said, "[Y]es, it's not any of the others," and Bourges again asked Bello if he was sure. Bello said that he was sure and was escorted out.
Two Brooklyn victims, Stewart and Timothy Humenic, then viewed the same lineup. Stewart asked to have each participant say, "Give me your money." Bynum was the second to speak. When he did so, Stewart identified him as the robber. Lynagh nonetheless required the remaining the participants to state the phrase.
On October 3, 1996, Lynagh conducted another lineup for Brooklyn victim Okoro. Bynum's trial attorney attended. Counsel objected that the fillers Lynagh obtained from a local men's shelter were too different from Bynum for a fair lineup. At counsel's request, Lynagh obtained other fillers. Okoro then viewed the lineup and identified Bynum.
The Indictments
By Indictment Number 7413/96, filed on August 26, 1996, a New York County Grand Jury charged Bynum with two counts of attempted first-degree murder, two counts of attempted second-degree murder, one count of aggravated assault upon a police officer, one count of attempted aggravated assault upon a police officer, three counts of first-degree assault, one count of attempted first-degree assault, two counts of first-degree robbery, four counts of first-degree criminal use of a firearm, two counts of second-degree weapon possession and one count of third-degree weapon possession arising from the Bello robbery and Latimer shooting.
On December 12, 1996, Encarnacion identified Bynum in another lineup. By Indictment Number 11223/96, filed on December 27, 1996, a New York County Grand Jury charged petitioner with first-degree robbery for that crime.
Prior Proceedings
The People moved to consolidate the two indictments on January 29, 1997. They also sought an in limine ruling permitting them to introduce into evidence four Brooklyn livery cab robberies purportedly committed by Bynum including the Bello, Stewart and Okoro robberies. In a decision dated April 16, 1997, Justice Harold Rothwax consolidated the two Manhattan indictments and ruled that evidence of the Bello, Stewart and Okoro robberies, but not the fourth Brooklyn robbery, would be admissible at the Manhattan trial.
Petitioner next moved, inter alia, for suppression of his inculpatory statement and identification evidence pertaining to the charged and uncharged crimes. On June 9, 1997, Justice Rothwax presided over a hearing on those motions. In a ruling from the bench the next day, Justice Rothwax denied the suppression motions in their entirety.
On June 12, 1997, Bynum's first trial began before Justice Rothwax. In addition to objecting to certain pretrial rulings, Bynum now objects to the exclusion of certain testimony of defense witness Michael Holmes and to the untimely disclosure of certain purportedly exculpatory police records. The State in its papers has presented a thorough recounting of the evidence presented at trial and, in the absence of any contentions from Bynum that such presentation was inaccurate, it will be accepted as presented. State's Mem. of Law, 14-45.
In a document submitted on September 5, 2003, Bynum admitted and denied certain statements presented in the State's answer to Bynum's petition. Bynum did not present any contradictory facts other than that two-page document. In light of the evidence presented at trial that supports the State's rendition of facts in its Answer, however, Bynum's objections to the Answer are unavailing.
On July 18, 1997, Justice Rothwax accepted a partial verdict and the jury convicted Bynum of first-degree robbery for robbing Encarnacion under Indictment 11223/96. On July 19, 1997, the jury announced that it could not reach a verdict on the remaining robbery and attempted murder counts under Indictment 7413/96, and Justice Rothwax declared a mistrial.
In September 1997, while awaiting trial on the Brooklyn robberies at the Brooklyn House of Detention, Bynum admitted to confidential informant Simon Newman that he had shot a police officer, adding that he would have shot the eyewitness as well, had he noticed him.
In October 1997, a Brooklyn jury acquitted Bynum of charges stemming from the Bello, Stewart and Okoro robberies.
On December 13, 1997, Justice Wetzel sentenced Bynum to a determinate term of 25 years for robbing Encarnacion and stayed the execution of sentence pending Bynum's retrial on the unresolved counts.
Bynum's retrial began on February 9, 1998 before Justice Wetzel and a jury. Bynum moved to suppress Newman's testimony and, after a Massiah hearing (see State's Mem. at 45-50), Justice Wetzel denied the motion. Bynum now objects, and in his appellate brief objected, to several other rulings. First Justice Wetzel permitted the impeachment of Bello by the prosecution. Second, the court again excluded certain testimony of defense witness Michael Holmes. Third, the court did not permit the jury to consider the issue of the "voluntariness" of Bynum's alleged statement to Newman. Finally, Bynum argues that the identifications by Williams and Bello should have been suppressed because they resulted from an unduly suggestive lineup and lineup procedures. In the absence of any assertion by Bynum that the evidence presented at trial was not as recounted by the State, it will be considered as detailed in the State's Memorandum of Law. See State's Mem. 50-62.
On February 27, 1998, the jury convicted Bynum of two counts of attempted first-degree murder for shooting Officer Latimer and trying to shoot Sergeant Scollan and one count of first-degree robbery for robbing Bello. On March 26, 1998, Justice Wetzel sentenced Bynum to indeterminate terms of from 25 years to life for the attempted murder counts and to a determinate term of 25 years for the robbery count, all sentences to run consecutively to each other and to the sentence under Indictment Number 11223/96.
Appellate counsel filed a brief on petitioner's behalf, in the Appellate Division, First Department. On August 17, 2000, the Appellate Division, First Department, unanimously affirmed Bynum's conviction. People v. Bynum, 275 A.D.2d 251, 712 N.Y.S.2d 523 (1st Dep't 2000) ("Bynum II"). With regard to the first trial, the court held that (1) the trial court had properly admitted evidence of the Brooklyn robberies, (2) the trial court had properly consolidated the two indictments, (3) the late disclosure of police reports had not prejudiced petitioner, (4) that the hearing court had properly denied suppression of Bynum's statement, and (5) that any error could not have affected the verdict. Id. at 251-52, 712 N.Y.S.2d at 525-26. With respect to the second trial, the court held that the trial court properly permitted the People to impeach their own witness, that the trial court properly denied Bynum's request to have the jury consider the voluntariness of his statements to a confidential informant and that Bynum's motion to suppress identification testimony was properly denied. Id. Finally, the court held that both trial courts had properly precluded collateral and remote testimony by Holmes concerning alleged police misconduct. Id.
Appellate counsel then sought leave to appeal from the First Department's order to the New York Court of Appeals. That request was denied by certificate dated December 27, 2000. People v. Bynum, 95 N.Y.2d 961, 722 N.Y.S.2d 478 (2000).
On February 27, 2002, Bynum filed the instant petition, consisting primarily of the legal analysis section of his appellate brief. The State responded on August 2, 2002. Bynum submitted an additional response on September 5, 2002, and the petition was considered fully submitted at that time.
Discussion
I. Standard of Review
In addressing Bynum's habeas petition, the Court is mindful that Bynum is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers . . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
Bynum has submitted as his habeas petition the exact brief which counsel submitted on his behalf on direct appeal to the Appellate Division and which was rejected by that court. In determining whether the Appellate Division properly rejected Bynum's arguments, this Court is constrained by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, this Court must presume the state court's factual findings to be correct and may overturn those findings only if the petitioner offers clear and convincing evidence of their incorrectness. 28 U.S.C. § 2254(e). A state court adjudication may be overturned only if it
The First Department's decision is an adjudication on the merits. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001).
Pub.L. 104-32, 110 Stat. 1214 (effective April 24, 1996), 28 U.S.C. § 2244-66.
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
"Clearly established Federal law" includes only holdings of Supreme Court decisions and does not include dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. Williams, 529 U.S. at 405-06. An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Williams, 529 U.S. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Williams, 529 U.S. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 N.2 (2d Cir. 2002).
II. The Appellate Division's Rejection of Bynum's Nine Arguments Was Not Contrary to Clearly Established Federal Law
Bynum raised nine issues to the First Department, and the First Department rejected each of them. Therefore, because Bynum raises each of the issues again, he may only obtain relief if that adjudication was contrary to clearly established Federal law. Bynum has not submitted any additional argument to explain why such adjudications are contrary to clearly established Federal law. In light of his pro se status, however, as well as the teachings of Rudenko v. Costello, 286 F.3d 51 (2d Cir. 2002), the Court will address individually each of the nine issues and the First Department's analysis thereof.
A. Procedurally Barred Claims
The State claims that three of the nine claims are procedurally barred because Bynum presented to the state court only state claims relating to the three circumstances and thus cannot obtain relief on federal claims arising from the same set of facts. These three claims relate to the consolidation of the two indictments (Point IV), the impeachment of the prosecution witness Bello (Point VI) and the trial court's refusal to allow the jury to consider the issue of the voluntariness of the statement Bynum made to a jailhouse informant (Point VIII).
A review of Points IV, VI and VIII of the appellate brief (and also the instant petition) reveals that the arguments focus almost exclusively on claims based on state procedural law. Claims based on purported failures to comply with state procedures are not cognizable on federal habeas review. E.g., Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984) ("It is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law."); see also McDarby v. Dinkins, 907 F.2d 1334, 1337 (2d Cir. 1990); Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987). Therefore, Bynum can obtain relief on these claims only if the passing references to constitutional violations based on these claims are sufficient to exhaust the constitutional claims.
In order to exhaust claims, the state appellate courts must have had a fair opportunity to pass on the claims. E.g., Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275-78 (1971). The state court presentation must "include reference to a specific federal guarantee, as well as a statement of the facts which entitle petitioner to relief" and "it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the `substance' of such a clam to a state court." Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Bynum's appellate brief does no more than cite to the constitutional underpinnings of state claims for these three claims. It does not argue any separate violation of the Constitution, and the mere citations are no more than "general appeals" that are insufficient to constitute exhaustion. Indeed, the First Department did not even address the constitutional issues directly as it had done with each and every other claim. As a result, the three claims were not exhausted. In the absence of a showing of cause and prejudice for the failure to raise the claims, Wainwright v. Sykes, 433 U.S. 72, 87 (1977), the claims are procedurally defaulted and cannot afford habeas relief.
B. Admission of Evidence of the Uncharged Brooklyn Cab Robberies in First Trial
As Point I of his appellate brief, Bynum argued that the trial court should not have permitted the prosecution to present evidence regarding the uncharged Brooklyn crimes. The First Department rejected this argument:
[T]he various Brooklyn and Manhattan incidents shared a sufficiently unique modus operandi such that proof that defendant committed the Brooklyn offenses was material evidence that [Bynum] committed the charged Manhattan crimes. Furthermore, the weapon used in one of the Manhattan incidents was linked by ballistics evidence to one of the Brooklyn incidents. [Bynum]'s identity as the perpetrator in the Brooklyn cases was established by clear and convincing evidence after sufficient proceedings pursuant to People v. Ventimiglia ( 52 N.Y.2d 350).
Bynum II, 275 A.D.2d at 251.
In order to obtain a writ of habeas corpus on evidentiary grounds, a petitioner must demonstrate that admission of the challenged evidence violated a constitutional right, e.g. Bell v. New York, 506 F. Supp. 590, 594 (S.D.N.Y. 1981), and that the challenged evidence was of such magnitude when "viewed objectively in light of the entire record," as "to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it," Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). Such a situation is not present here.
Both state and federal practice permit evidence of petitioner's uncharged crimes or bad acts on the prosecution's direct case, provided that the evidence is relevant to some issue other than petitioner's criminal disposition, and the probative value outweighs any prejudice. Fed.R.Evid. §§ 403(1), 404(b); Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1498-99 (1988). "Rule 404(b) permits evidence of similar acts to prove a `signature crime,' i.e., a modus operandi where the crimes are `so readily identical in method as to earmark them as the handiwork of the accused.'" United States v. Mills, 895 F.2d 897 (2d Cir. 1990) (citations omitted). Such evidence may also be admitted when it tends to prove the defendant's identity or other relevant facts. E.g., United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995) (approving admission of evidence of uncharged robbery to show ownership of firearm in crime presently charged). If the evidence admitted satisfied the Federal Rules of Evidence, habeas relief may not obtain. E.g., Ford v. Crinder, 2001 U.S. Dist. LEXIS 7454 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a (state) criminal defendant's due process rights or provide a basis for habeas corpus relief").
The Appellate Division affirmance's of Justice Rothwax's decision was not contrary to clearly established federal law. Justice Rothwax held that the evidence that Bynum shot Okoro near Utica Avenue in Brooklyn was direct evidence connecting Bynum to the Latimer shooting on West 157th Street in Manhattan because both crimes involved the same gun, and Okoro had identified Bynum as his own assailant. Thus, Justice Rothwax deemed the Okoro incident "highly probative" of Bynum's identity as the perpetrator of the August 15, 1996 crimes. Because the affirmance was not in contravention of clearly established federal law, this claim fails.
In any case, any resulting error was harmless as the jury only convicted Bynum of the Encarnacion robbery at the first trial — and not of the Bello robbery or Latimer shooting — and thus it is clear that the jury followed the trial court's instructions that they should not hold the uncharged crimes evidence against Bynum on the issue of propensity to commit crime.
C. Exclusion of Holmes Testimony in Both Trials
Bynum argues as Point II and VII that he should have been permitted to elicit particular testimony from Holmes, who was nearby when Officer Latimer was shot but was not close enough to see the shooter, that the police detectives had pressured Holmes to identify Bynum as the shooter notwithstanding his inability to do so. Both Justice Rothwax and Justice Wetzel permitted Holmes to testify only as to his observations at the time of the shooting. The First Department affirmed those decisions. Bynum II, 275 A.D.2d at 252 ("[T]he respective courts properly exercised their discretion in precluding excessively collateral and remote evidence concerning alleged police misconduct.") (citing People v. Hudy, 73 N.Y.2d 40, 56 (1988)).
Trial courts have broad discretion to exclude evidence that is immaterial, irrelevant or otherwise inadmissible based on rules of evidence. Chambers v. Missippi, 410 U.S. 284, 302 (1973). Similarly, they have "wide latitude" to exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice or confession to the jury. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). In order to present a constitutional violation of the right to present a defense based on an exclusion of evidence, a petitioner must demonstrate that such exclusion was either "`arbitrary' or `disproportionate to the purposes [it was] designed to serve," and that such ruling has "infringed upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted).
The finding of the First Department that the hearing courts had exercised their discretion appropriately is not contrary to clearly established federal law. Bynum's arguments primarily focus on Holmes's excluded testimony as proof that the entire identification process was tainted by police misconduct. Holmes's testimony would not be admissible for such purposes. Holmes's testimony concerning his own alleged experiences in the identification process could not be used to suggest that the other witnesses were similarly pressured. Each individual who participated in the identification process would have to be asked about their individual experience in order to reveal that the process was infected. Thus, the exclusion was not arbitrary and did not infringe upon a weighty interest of Bynum. As a result, the finding that the testimony was collateral and remote was not contrary to clearly established federal law, and these points cannot provide relief.
D. Prosecution's Failure to Disclose DD-5s Prior to First Trial
Bynum contends in Point III that the belated disclosure of two newly discovered complaint follow-up reports ("DD-5s") violated the People's obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), mandating a new trial. The reports stated that neither Bello nor Stewart could make an identification of the person who robbed them.
The appellate brief focused a great deal in Point III on Bynum's claims under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961). Such claims are not cognizable on this petition. E.g., Morrison v. McClellan, 903 F. Supp. 428, 429 (E.D.N.Y. 1995) ("Any error under Rosario at trial would be a violation of state law, and, thus, not subject to review under a petition for a writ of habeas corpus."); Cruz v. Scully, 716 F. Supp. 766, 769 n. 5 (S.D.N.Y. 1989) (same).
During the People's case, just before Bello and Stewart testified regarding the uncharged Brooklyn robberies, the People turned over two DD-5s, indicating that each victim had expressed the view that he could not make an identification. The prosecutor explained that the documents had not been part of Detective Lynagh's file on the Brooklyn robberies, that when Lynagh was assigned there was no indication in his file that any investigative work had already been done, and that Lynagh discovered the DD-5s only during trial when the prosecutor asked him to search for additional paperwork. All the parties agreed that the statements should have been turned over before opening statements.
Bynum's counsel moved for a mistrial and argued that the suppression hearing should be reopened with regard to the lineups and an evidentiary hearing held on the uncharged crimes evidence. Justice Rothwax declined to reopen the suppression hearing, noting that there was no indication that the detectives who conducted the lineups even knew of Bello's and Stewart's statements, "much less t[ook] advantage of it." Second, the court declined to conduct an evidentiary hearing on the uncharged crimes evidence because his ruling rested on the modus operandi, rather than on any identification of Bynum by Bello and Stewart. Thus, the court concluded that the late disclosure had not "in any way prejudiced or harmed" Bynum as to the pre-trial hearings. The court did note that counsel's inability to refer to the DD-5s in her opening could have amounted to a "minor disadvantage," but it was "not the kind of disadvantage or prejudice that should result in a mistrial."
When Bello and Stewart testified, they were cross-examined regarding the DD-5s. Neither stated that he had ever felt that he would not be able to identify his assailant, and neither remembered saying otherwise to the police.
On appeal, the First Department held that the late disclosure did not warrant a mistrial "since there was no showing of bad faith on the part of the People and the defense received the reports in time to cross-examine the witnesses about their purported belief at one time that they would not be able to identify the assailant." Bynum II, 275 A.D.2d at 252.
To obtain a new trial on basis of an alleged Brady violation, a petitioner must demonstrate "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). As the Appellate Division recognized, the only potential prejudice would have occurred in the pre-trial proceedings and during the opening statement because Bynum obtained the DD-5s prior to the testimony of Bello and Stewart and thus was able to cross-examine them. Further, Justice Rothwax stated that the belatedly discovered DD-5s would not have altered his pre-trial rulings. Therefore, the First Department's finding that the delay did not present a reasonable probability that the result of the proceeding would have been different is not contrary to clearly established federal law, and the Brady claim must be rejected.
E. Admission of Bynum's Inculpatory Statement
In Point V, Bynum claims that the inculpatory statement he made following his invocation of the right to an attorney should have been suppressed. Justice Rothwax rejected that claim at a suppression hearing, and the First Department affirmed his decision:
The hearing court properly denied suppression of defendant's precinct statement, since the detective's preceding remark, under the totality of the circumstances, was not reasonably likely to elicit incriminating statements. In any event, were we to find that this statement should have been suppressed, we would find that error to be harmless because the statement, which was received in evidence at the first trial only, pertained, at most, to the crimes of which the first jury failed to reach a verdict, and could not have affected the guilty verdict reached at that trial.
Bynum II, 275 A.D.2d at 252.
Federal law is clear that once a defendant in custody has invoked his right to counsel, he may not be interrogated. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). A statement made after a request for an attorney need not be suppressed, however, if it is not made in response to police interrogation. United States v. Gazzara, 587 F. Supp. 311 (S.D.N.Y. 1984). Interrogation encompasses actions that "the police should know are reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
The First Department's holding reflected language used in the Innis opinion, although it did not cite that case. Further, it was not an unreasonable application of that precedent to find that Detective Hayes's remark was not likely to elicit an incriminating admission. Hayes made a declaration of frustration; he did not ask a question. Further, the earlier interrogation had been about the Brooklyn car robberies, not the Latimer shooting, which was the subject of the inculpatory statements.
In addition, it was also not unreasonable to hold that the admission of that statement, even if erroneous, was harmless for the reasons stated by the First Department. E.g., Chapman v. California, 386 U.S. 18, 24 (1967) (error must be harmless beyond a reasonable doubt). As a result, Point V is also unavailing.
F. Identifications by Bello and Williams
Bynum raises as his ninth and final claim that the identifications by Williams and Bello should have been suppressed because they resulted from unduly suggestive lineup procedures involving variances in complexion and weight amongst Bynum and fillers as well as Detective Bourges's conduct as Williams viewed the lineup.
Justice Rothwax denied the suppression motion, concluding after examination that although the participants had "slightly different complexions," all of the participants appeared to be of a similar age and build and had similar facial hair, and thus, the lineup called "no special attention" to Bynum. He added that nothing that Detective Bourges had said to either Williams or Bello called attention to Bynum, noting that it had been Williams who had called attention to" Bynum, while Bello had "quickly" identified Bynum.
On appeal, the First Department rejected the challenge because "[n]othing in the composition of the lineup or the detective's remarks to the witnesses before and during the viewings unfairly singled out" Bynum. Bynum II, 275 A.D.2d at 252.
In determining the admissibility of identification testimony over an objection that a pre-trial identification procedure was unduly suggestion, a court must engage in a two-step process. First, the court must determine if the process was impermissibly suggestive. If it was, the court must decide whether it was so suggestive as to raise a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198 (1972) (citation omitted); United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994). Justice Rothwax determined that the process was not impermissibly suggestive and therefore did not proceed to the second step. The Appellate Division concurred.
In light of AEDPA, it must be assumed that the hearing court's factual finding that Bynum and the fillers appeared to be of similar age, had similar builds and sported similar facial hair is correct. 28 U.S.C. § 2254(d)(2), (e)(1). It must also be assumed correct that Detective Bourges called no special attention to Bynum. Therefore, Bynum's claims based on facts contrary to these, in the absence of any showing that these were unreasonable determinations of the facts in light of the evidence presented, must be rejected.
The trial court did find, however, that Bynum and the fillers had slightly different complexions. Therefore, the limited question presented for this Court is whether it is contrary to established federal law to find that a lineup is not impermissibly suggestive where there the petitioner and fillers are similar except for slightly different complexions. Bynum does not point to any Supreme Court precedent addressing this particular issue. Indeed, his primary arguments rely on differences in build and hairstyle which were rejected as a matter of fact by the hearing court and thus must be presumed true for the purposes of deciding this motion. Therefore, habeas relief is denied on this ground as well.
Conclusion
For the foregoing reasons, Bynum's petition is denied.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
It is so ordered.