Opinion
CV-01-6862 (ERK)
August 25, 2003
CORRECTED MEMORANDUM AND ORDER
Petitioner Lamonte Johnson seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his 1987 New York State conviction on two counts of second-degree murder. After a jury trial, petitioner was sentenced to two consecutive terms of twenty years to life. The Appellate Division affirmed the conviction on February 11, 1991. People v. Johnson, 170 A.D.2d 535, 566 N.Y.S.2d 538 (2d Dep't 1991). Judge Kaye denied his application for leave to appeal. People v. Johnson, 77 N.Y.2d 996, 571 N.Y.S.2d 922 (1991). After moving repeatedly and unsuccessfully to collaterally attack his conviction, petitioner filed this petition.
Background
The underlying crimes were committed on the morning of June 24, 1986, when petitioner and an unapprehended accomplice shot and killed Lance Gonzalez on Myrtle Avenue in Brooklyn, then chased down and fatally shot Damon Rogers on Vernon Avenue.
Police found the body of Rogers within five minutes. (Tr. 31). The body of Gonzalez was found shortly thereafter. The shooting was witnessed by two persons; one who testified to being on the street at the time (he had seen petitioner intermittently in the area for "a couple of months" — Tr. 262-264), and one who claimed to have seen the shootings through a window in his girlfriend's apartment (and who had engaged in a fight with petitioner about a year beforehand — Tr. 51-52). Both had been shown photographic arrays by police officers and picked petitioner from the photographs of six similar-looking individuals. Additionally, both identified him at trial While there was a reference at the trial to "Number Two," referring to petitioner's position in the photo array (Tr. 366), and references to the first witness's meeting with the detective who showed him the photo array (Tr. 397), the fact that the witness selected petitioner from the array itself was never mentioned.
Selvin Spencer, the witness against petitioner who claimed to have been on the street at the time of the murders, identified petitioner at trial. (Tr. 264 — 265). Spencer agreed to testify at trial in return for certain promises that had been made to him. Specifically, as stated on the record at the trial;
The [prosecutors] promised in exchange for truthful testimony that we will contact the Manhattan District Attorney's office where [the witness] has a pending case and ask them to consider reducing the felony to a misdemeanor, and if they could not do that, to consider reducing the felony to a lesser felony . . . which would require state time. We also promised that we would contact the Parole Board and tell them that if this witness testified truthfully we would notify the Parole Board of that and recommend that they consider not violating him, but we could not guarantee anything that the Parole Board does, nor anything that the Manhattan District Attorney's Office would do in connection with this case, and we further promised that we would ensure Mr. Spencer's safety . . . if he does do any state time and would attempt to have him housed in federal custody for his safety.
(Tr. 357).
Nevertheless, after being called to the stand at trial, Spencer declined to testify. The trial judge instructed him outside the presence of the jury to testify or give a good reason not to, or face contempt of court charges. The witness still refused to testify or give any reason for his refusal. (Id. at 265-266). Ultimately, the trial judge threatened to hold Spencer in contempt "100 times" and told Spencer that he could impose consecutive thirty-day sentences consecutively for each such refusal to testify. (Id. at 266-267). At this point, the witness revealed that he and his family had received threats. He stated that his reason for refusing to testify was because of the threats against his family. (Tr. 276). A hearing was held to examine the threats, and Spencer's father testified that he had received a call from the witness's ex-wife. She told him, "I got a call from a man saying that if your son testifies he was going to bring harm to me and the two kids and your family." (Tr. 311). A detective who was in the holding pens with petitioner and Spencer testified that she overheard a conversation between the witness and another individual whom she believed to be petitioner. (Tr. 317). She testified that the individual said, "That guy in there, Rahim [the witness's nickname], you better do the right thing." Spencer responded, "Don't worry about it, Lamont, I'm not with them. I'm not going to testify." (Tr. 318-319). According to the detective "[a] conversation went back and forth and I don't know who the inmates were but somebody asked what Rahim [Spencer] was wearing, another person said he was wearing a blue burgundy sweatsuit." (Tr. 319). The detective heard Spencer use the name Lamonte, and also the nickname Majesty. (Id.). The nicknames Majesty and Your Majesty had previously been associated with petitioner. (W. Tr. 60. Tr. 264).
Ultimately, Spencer agreed to provide trial testimony and, in the presence of the jury, he described how he observed petitioner and his accomplice leave the car and argue with the victims, and then saw petitioner, gun in hand, chasing one of the victims around the corner, where he heard the victim pleading for his life and then "ten or fifteen shots." (Tr. 336). After petitioner was convicted, he filed three separate motions to vacate his convictions. The principal ground for relief, as related in the first two motions, turns on the testimony of Selvin Spencer, described above.
Discussion (1)
On or around November 9, 1989, petitioner, acting pro se, filed his first of three 440.10 motions to vacate the judgment of conviction. He supported his petition with six affidavits, including one from an individual who stated that he was "getting high" with the key witness at the time of the shootings, and three from people claiming that the witness admitted to using drugs during the shooting that he witnessed and that he was forced by detectives to testify falsely against petitioner. On March 14, 1990, the trial judge summarily denied the motion without a hearing. The Appellate Division denied permission to appeal.
Petitioner's second 440.10 motion was filed in May 1993. He submitted another five affidavits, including one from the key witness dated October 19, 1992, that read in part (spelling and grammar errors corrected):
"The following statement is made on behalf of [petitioner], who has been wrongfully convicted of two (2) homicides. I believe his conviction was wrongfully obtained and that it was based at least in part, upon my own testimony, which was the product of coercion by the detectives that were involved and the Office of the District Attorney of the County of Kings. It was in several elements essentially untrue, that were known to and by the District Attorney to be false. I was induced to offer false testimony by the threats and promises made by the detectives and District Attorney's office. They promised to lift my parole hold and gave me a deal on my case (at the time) of Johnson's trial; to testify falsely against Mr. Lamonte Johnson. At no time did I see Mr. Lamonte Johnson, the night of June 24th, 1986. I was in the building getting high on crack. I'm coming forward now, because my conscience is really bothering me, and I can't let an innocent man do time for a crime he never committed. I am scared that the detectives and the Assistant District Attorney will continue to harass me if they find out I made this statement/affidavit, but I just can't live with this anymore. I will even come forward in a court of law, to testify to the enclosed contents."
The District Attorney countered by pointing out that, in the previous seven months, the witness had written fourteen letters (actually seventeen) to an Assistant District Attorney describing the assaults to which he was being subjected, and the threats of further harm to his person unless he recanted his testimony. The letters are annexed to the Affidavit of Assistant District Attorney Adam Charnoff dated July 29, 2003, The District Attorney also submitted another letter from Spencer postmarked exactly one month after the recantation affidavit which read:
"I am written you to let you know, I have been threaten and my family have been threaten. I am at Adirondack Corr Facility up state New York. I testify against [petitioner] on a double homicide. He was convicted and sentence to 40 to life in prison. He written a friend of his here, and threaten to kill my family, as well as me. The affidavit was written out already. All I had to do was sign it to keep from getting attack again as I did in Franklin Corr Facility March of this year. I was slice across my right arm with a razor twice. When I testify for your office in 1987 of March in Brooklyn Supreme Court. The District Attorney's A.D.A. Brain Harnic, and D.A. Mark Feltman, and Dan Sanders, promise to protect me which they have no live up to. I refuse to get assaulted any more. I have to protect my self and my family. I have a wife and two kids also. I'm serving a 2 to 4 year term for a robbery 3 which as a D felony. I have 14 months in already. I have 10 months left. I was approve for work release by the facility. Please I am asking your office to write a letter of recommendation to temporary release, and explain to them that I'm having problem with other inmates in the correction system and that I would be safer in a work release facility on the streets because as long as I'm in the system he has made me a promise that he would take my life if it's the last thing he does. He knows people in just about every facility. Please write a letter to [name and address omitted]. He is waiting to hear from you. I will not go back in court and testify. I will stick to my promise also. That's why I am sending you all these papers that were mail back to me. Please act as soon as possible, because once [petitioner] fines out I am not going back in court to retestify, he will be written every in my facility. My life is at stake. Good luck."
The trial judge summarily denied petitioner's motion without an evidentiary hearing. The Appellate Division denied permission to appeal.
Petitioner argues that he was deprived due process of law when the police and prosecution allegedly coerced the key witness to testify falsely at trial, and when the trial court refused to grant his 440.10 motions based on the witness's recantation. A claim for relief based on newly discovered evidence must fail because "such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Herrera v. Collins, 506 U.S. 390, 400,113 S.Ct 853, 860, 122 L.Ed.2d 203 (1993) (quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759 (1963)). The Supreme Court has said that the conviction must be set aside if the newly discovered evidence shows that "(1) the prosecution knew, or should have known, of the perjury and (2) there is any reasonable likelihood that false testimony could have affected the judgment of the jury." Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (internal citation and quotation marks omitted).
While the Second Circuit had held in Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988) that habeas corpus relief may be granted even in the absence of prosecutorial knowledge of perjury, it observed recently that Sullivan "explicitly relied on Justice Douglas' dissent inDurley v. Mayo, 351 U.S. 277 (1956)." Drake v. Portuondo, 321 F.3d at 345, n. 2. Because "AEDPA permits us to rely only on clearly established Supreme Court precedent," the Second Circuit held that only knowing use of perjured testimony could provide a basis for habeas corpus relief. (Id.).
Less than five months after Drake was decided, another panel of the Second Circuit ignored its decision in Drake, as well as its discussion of Sanders v. Sullivan, and relied onSanders in granting habeas corpus relief even in the absence of knowing use of perjured testimony. Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003). In such a case, the Second Circuit held that "due process is violated only if the testimony was material and `the court [is left] with a firm belief that, but for the perjured testimony, the defendant would most likely have not been convicted.'" (Id. at 108) (internal citation omitted). In so doing, "we decide whether the jury probably would have altered its verdict if it had the opportunity to appraise the impact of newly-discovered evidence not only upon the factual elements of the government's case but also on the credibility of the government's witness." (Id. at 109) (internal citations omitted).
While Ortega cannot be reconciled either with AEDPA orDrake v. Portuondo, it does not appear to matter, for the purpose of this case, whether a showing of knowing use of perjured testimony is a necessary element for obtaining habeas corpus relief. Under the standard for obtaining relief in either circumstance or under New York Law, N.Y. Crim. P.P. § 440.10(1)(g), petitioner cannot prevail here. Specifically, the trial transcript demonstrates that, notwithstanding the consideration for his testimony, Spencer had a change of heart and declined to testify. Instead, he was coerced into testifying by a threat of approximately eight years in jail for contempt. Nevertheless, petitioner's counsel wisely chose not to elicit this fact before the jury because it would have put before the jury the evidence of the threats made to Spencer and because it would also have shown that the witness testified out of fear of punishment for contempt rather than promises by the District Attorney. Under these circumstances, the evidence would have been devastating.
The newly-discovered evidence, which purportedly shows that it was the prosecutor who forced the witness to testify falsely, suffers from the same flaw, because it is accompanied by persuasive evidence that the witness, Selvin Spencer, was recanting his testimony due to the threats. A jury fully apprised of the circumstances of the witness's trial testimony, namely, that he refused to testify because he feared for his life and he did so only because he was coerced by the trial judge, and fully apprised of the evidence of threats motivating the recantation of the evidence offered by the witness, would hardly have altered its verdict. Nevertheless, in light of the uncertain state of Second Circuit law, it would be wiser to develop the record with respect to the issue whether the prosecutor knowingly used perjured testimony by Spencer. Indeed, at the oral argument of the motion, the parties agreed that the case would be remanded to the New York State Supreme Court for findings of fact with respect to this issue. See Gonzalez v. Quinones, 211 F.3d 735, 738 n. 3 (2d Cir. 2000). Such a remand "offers the state court the opportunity to conduct an inquiry into the facts. The state court's failure to do so would not necessarily result in voiding the judgment." Id. If the state court declines to conduct the necessary inquiry, I will do it myself.
(2)
In July of 1996, petitioner filed his third motion to vacate the convictions, claiming that the prosecutor failed to discloseBrady material. In a memorandum decision on August 6, 1997, the trial judge denied the petitioner's motion. Petitioner's application for leave to appeal to the Appellate Division was denied. Specifically, petitioner alleged that the prosecutor had not made known to the defendant that there were bullets and bloodstains found inside one of the victim's vehicles. Petitioner alleged that this evidence would have given him the opportunity to confront the key witness who testified that he saw the shootings occur outside the vehicle.
This claim is belied by the property voucher invoice of the car which the trial prosecutor had appended to his answer to defense counsel's pretrial omnibus motion, a copy of which is contained in the Supreme Court trial folder, and which had been served upon defense counsel prior to defendant's trial. The property voucher, numbered A166513V, revealed that "[a]t t/p/o car was found running opposite 985 Myrtle Ave. Bklyn, N.Y.1 spent shell found in car rear seat" (see property voucher appended as People's Exhibit A to the Memorandum of Law filed in opposition to petitioner's § 441.10 motion.) (emphasis added). It is clear from the voucher that all parties were aware that another bullet shell was found inside the victims' car, even though the murders occurred outside the car.
Moreover, although defendant claims that the prosecutor concealed evidence that bloodstains had been observed inside the victims' automobile, defendant has failed to even establish that bloodstains were, in fact, found inside the car. In support of his claim that bloodstains had been observed in the automobile, defendant merely quotes from the January 26, 1995, New York City Corporation Counsel's answer to defendant's Article 78 petition, that:
With regard to petitioner's request for item 3 (A list of any/all items or evidence taken from the car, i.e., blood stains, spent shells, spent shell casings, fingerprints, and also the bullets recovered from the interior of said automobile, and a copy of its voucher number) . . . those documents are not accessible because they had been in NYPD's Crime Scene Unit storage facility . . . and were destroyed in a flood . . .
(Defendant's § 440.10 Affirmation at 4, ¶ 10, referring to Defendant's Exhibit D at 10, ¶ 45). As is clear from the above answer, however, the Corporation Counsel was merely quoting verbatim from defendant's generalized request in his petition for "any/all" evidence, including bloodstains and other items of evidence which may have been discovered in the car. The City's answer did not confirm or establish that bloodstains were, in fact, present inside the automobile. Petitioner does not provide any other evidence which tends to substantiate his bare claim that bloodstains were present inside the car.
Even assuming, arguendo, that bloodstains were observed inside the automobile, petitioner's claim that the prosecutor suppressed such information is refuted by the record. Initially, during defendant's Criminal Court arraignment on June 28, 1986, the prosecutor served written notice on defense counsel, pursuant to Penal Law § 450.10, giving defense counsel the opportunity to inspect the vehicle prior to its release to its owner (see copy of P.L. § 450.10 notice, appended as People's Exhibit B to the Memorandum of Law filed in opposition to petitioner's § 440.10 motion). Subsequently, on August 8. 1986, the trial prosecutor, Brian Harnick, mailed a letter to defense counsel, John Noland, Esq., confirming their telephone agreement that defense counsel was to inspect the vehicle at the Whitestone Automobile Pound prior to its release to the owner of the car. The letter included such pertinent information as the year, make and Vehicle Identification Number of the car, and the voucher and storage numbers of the car (see Harnick Letter, dated August 8, 1986, appended as People's Exhibit C to the Memorandum of Law filed in opposition to petitioner's § 440.10 motion). Thus, defendant'sBrady claim regarding the District Attorney's alleged suppression of the "exculpatory" evidence found inside the victims' car is clearly refuted by the record, by unquestionable documentary proof and numerous witnesses who, even though they were reluctant or refused to identify petitioner as the shooter, testified that they observed the shootings occur outside the vehicle. Indeed, the two bodies were both found some distance from the vehicle.
In his Memorandum, petitioner also claims that the prosecution failed to disclose that a .32 caliber shell was recovered near the body of one of the victims. This claim is without merit. Detective Burgos testified at trial that Crime Scene Unit detectives gave him two bullets and a spent shell that had been found at the scene. (Tr. 38-39). In his Memorandum, petitioner notes in a footnote: "At trial, Police Officer Burgos testified that a spent shell was found near [the victim] but there was no testimony as to its caliber." This statement is incorrect, Detective Burgos testified that the shell was 32 caliber. (Tr. 48).
Petitioner attaches to his Memorandum a police report from Detective Cavuto stating that witnesses "state that the deceased was chased by a male black [or] [H]ispanic who shot him," and petitioner alleges that the "black or Hispanic" portion exonerates him because he is black. Since black would fit the description "black or Hispanic," it is unlikely that this evidence would have affected the outcome of the trial. Petitioner also alleges that the prosecutor withheld "prior interviews with [the key witness] that materially contradict trial testimony, and recorded interviews with witnesses who exculpate petitioner." It has been established that Selvin Spencer, under the alias of Jimmy Davis, indeed made recorded statements to an Assistant District Attorney. The claim that these statements were not turned over to petitioner's counsel is contradicted by the trial record which reveals that the prosecutor informed defense counsel that the Rosario packet disclosed to him contained statements by Spencer given under the alias "Jimmy Davis," (Tr. 196/256), and that defense counsel utilized those statements in his cross-examination of Spencer at trial (Tr. 348-49).
Petitioner argues that he was prejudiced by the non-disclosure of a DD-5 — a memorandum prepared by Detective Chimil, in which Spencer is quoted as saying in an interview that a third male got out of the car and ran away. The DD-5 is also alleged to be significant because Spencer did not name petitioner, whom at trial he testified that he knew as "Your Majesty." The transcript of the Wade hearing indicates that the DD-5 was turned over to defense counsel. (Tr. 21). Moreover, Detective Chimil testified repeatedly at the Wade hearing that Spencer told him that he did not know the name of the shooter he picked out in the photo array, (Tr. 47), nor did he know his nickname. (Tr. 57, 65).
Finally, in determining the materiality of this allegedly undisclosed DD-5 and another so-called "Homicide Sheet" that was also allegedly not disclosed, the judge who denied the § 440.10 application wrote that:
A comparison of the information on the reports received via the FOIL requests and the testimony at trial shows that the information is duplicative of the Assistant District Attorney's audiotape interview of the defendant and the defendant's grand jury testimony which were timely turned over. People v. Acevedo, supra, 178 A.D.2d 536. The statements in the homicide sheet and the DD-5 report that the defendant requested are substantially similar to Mr. Spencer's trial testimony (see Defense Exhibit F). There is no additional or different information in those documents that would have adversely affected defendant's trial counsel's opportunity for cross-examination of Mr. Spencer on his account of the shooting and his identification of the defendant as one of the shooters. The homicide sheet contains no information relating to Mr. Spencer's general credibility.
There was full cross-examination of Mr. Spencer's ability to observe, his statements and credibility. The jury was aware of Mr. Spencer's lengthy record, his cooperation agreement, and his use of a false name when he first talked to the police and to the Assistant District Attorney. The defendant has not identified any information in the untimely received documents which he did not know about at the time of trial that would have affected his trial differently. Thus, the defendant has failed to show a "reasonable possibility" that the alleged failure to receive the homicide sheet and the DD-5 interview sheet affected the verdict (People v. Jackson, supra, 78 N.Y.2d, at 649; People v. Vilardi, supra, 76 N.Y.2d, at 77). The motion based on Rosario violation is denied.
This decision, which is contained in Exhibit N to the Affidavit filed in opposition to the petition, and which petitioner does not address in his petition, is entitled to a deferential standard of review under AEDPA. Under that standard, petitioner is not entitled to the relief he seeks.
(3)
During the trial, one witness (the one claiming to have seen the shootings from his girlfriend's apartment) testified that he was "not exactly sure" that he recognized the shooter. (Tr. 57). This was in conflict with his grand jury testimony wherein the following examination took place:
Q "After you saw them shoot the guy who got shot, where did those people go, the one in the white sweatsuit and the one in the grey?"
A "They ran."
Q "The guy in the white sweatsuit, that's the person you had a fight with a long time ago, right?"
A "Yeah."
The witness's testimony before the grand jury was then used to impeach his trial testimony. (Tr. 58). Petitioner did not object to the use of grand jury testimony, and never requested that the jury be instructed that the grand jury testimony was for impeachment purposes only, rather than evidence against the defendant, and such an instruction was not given.
Petitioner now claims that he was denied due process of law and his right to confront witnesses against him when this impeachment was permitted. This claim is without merit. Petitioner had the right to, and indeed did, cross-examine the witness whose grand jury testimony was used. "[T]he Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).
(4)
Petitioner was afforded a Wade hearing, where he challenged the photo array identification of himself by the two witnesses (who, due to current and previous interactions with petitioner, requested that the District Attorney identify them as Witness A and Witness B). Two detectives who had presented the photo array to the two witnesses were called to testify. Despite petitioner's request (and the initial request of the trial court), the two witnesses themselves did not testify at the hearing. While the trial judge determined that the array was not suggestive, (Tr. 91-93), the jury was not apprised of the photo identifications made by the eyewitnesses.
On November 10, 1988 (prior to filing any of the three 440.10 motions), petitioner filed a brief with the Appellate Division. Among the five points argued for review was that petitioner was deprived of his due process right to a fair trial and to a fair pretrial hearing on whether his identification by eyewitnesses should be suppressed by the trial court's refusal to allow the eyewitnesses to testify at the hearing.
In affirming the judgment of conviction, the Appellate Division held:
[Petitioner's] contention that it was error for the hearing court to render its Wade ruling in the absence of testimony from either of the [government's] eyewitnesses is without merit. In this case, [petitioner] failed to meet his burden of establishing that the pretrial photographic array shown to the eyewitnesses was suggestive. Therefore, it was not necessary for the [government] to show through the testimony of the eyewitnesses that an independent source for their in-court identifications existed [citation omitted].People v. Johnson, supra, 170 A.D.2d 535, 566 N.Y.S.2d 538 (2d Dep't 1991). The Appellate Division holding was specifically directed to petitioner's claim that the failure to call the eyewitness at the Wade hearing made it impossible to determine whether there was an independent source for their identification. Pet. App. Div. Brief at 50. The rejection of petitioner's claim was not unreasonable. Indeed, the fact that petitioner was known to the eyewitness and was not a stranger is itself compelling evidence of an independent source for the identification.
Moreover, petitioner had the opportunity and incentive to explore fully the factors relevant to the reliability of the eyewitness identification when the witness testified at trial. Indeed, the Supreme Court has held that cross-examination of witnesses at trial is a valid way of eliciting facts surrounding the identification and may supply a basis for the decision on admissibility. Watkins v. Sowders, 449 U.S. 341 (1981). If any material evidence had been adduced at trial relevant to the admissibility of the eyewitness identification, petitioner could have moved to reopen the hearing. C.P.L. § 710.40(4). See Gagne v. Coughlin, 995 F. Supp. 268, 274-77 (E.D.N.Y. 1996) aff'd 129 F.3d 254 (2d Cir. 1997).
(5)
Petitioner also argues that the evidence was insufficient to convict him. "In a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that, upon the record evidence adduced at the trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct 2781, 2791-2792, 61 L.Ed.2d 560.
In this case the Appellate Division found that "[v]iewing the evidence in the light most favorable to the prosecution . . . it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt."People v. Johnson, supra, 170 A.D.2d 535, 566 N.Y.S.2d 538 (2d Dep't 1991) [internal citation omitted]. This holding is not unreasonable.
Conclusion
The case is remanded to the New York State Supreme Court (Kings County) to make findings of fact with respect to whether the District Attorney knowingly had any knowledge that Selvin Spencer did not testify truthfully. Should the New York State Supreme Court decline to so, I will conduct a hearing here to resolve this factual issue. Gonzalez v. Quinones, 211 F.3d 735, 738 n. 2 (2d Cir 2000). The petition is stayed and the case is closed for administrative purposes until the completion of those proceedings.