Smith v. Artus

Filing 16

ORDER denying petition for writ of habeas corpus and dismissing the petition; declining to issue a certificate of appealability and denying in forma pauperis status for purpose of an appeal. Signed by Hon. Michael A. Telesca on 6/16/09. (JMC)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

KENNETH SMITH, No. 98-B-1337 Petitioner, -vDALE ARTUS, Superintendant of Clinton Correctional Facility Respondent. 03-CV-6636 MAT ORDER

INTRODUCTION Petitioner Kenneth Smith ("Smith") has filed a pro se

petition (Docket No. 1) seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY Following a jury trial, Kenneth Smith was found guilty of Robbery in the First Degree (Penal Law § 160.15), two counts of Robbery in the Second Degree (Penal Law § 160.10), Assault in the Second Degree (Penal Law § 120.05), Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02), Unauthorized Use of a Vehicle in the First Degree (Penal Law § 165.08), Grand Larceny in the Third Degree (Penal Law § 155.35), Criminal

1

This matter has been re-assigned to the undersigned. 1

Mischief in the Third Degree (Penal Law § 145.14), and Reckless Endangerment in the Second Degree (Penal Law § 120.20). This conviction stems from an incident that occurred at the intersection of Broadway Street and Jefferson Avenue in the City of Buffalo. Shortly after 11:00am on December 24, 1996, Robert

Johnston ("Johnston"), a service technician for Pay-Tel, parked his company van to service a pay phone near the intersection of Broadway and Jefferson in the City of Buffalo. Johnston accessed the pay phone, Smith T. 365, 371.1 As him and

approached

demanded the keys to his van. pushed him in the chest. pointed at Johnston.

When Johnston refused, Smith

Smith then pulled out a gun, which he Upon seeing the gun, Johnston A

T. 373-374.

ran into the street in an attempt to summon help. T. 375.

woman in a car saw Johnston, and opened the passenger door to her vehicle for him to get in. As Johnston tried to enter the car, Smith blocked access to the door with his body. Johnston

began to run when Smith grabbed him and hit him in the back of the head with the gun. T. 378. Stunned from the blow, Johnston

turned to face Smith, who then hit him over the top of the head, causing him to fall and temporarily lose consciousness. John Manzella ("Manzella"), a United States Army recruiter, was in his car in the area of Broadway and Jefferson when he
1

Citations to "T.__" refer to the trial transcript.
2

witnessed Smiths attack on Johnston.

T. 38, 41-43.

When he

saw Smith pick up Johnstons keys from the ground, enter the white van, 911 and drive his away, mobile he gave chase T. in his car He while later

calling

from

phone.

36-50.

identified Smith as Johnstons attacker at the scene of Smiths arrest. Buffalo "Officer Police was Officer Nathanial on Wright 24, ("Wright" 1996 in or the

Wright")

off-duty

December

vicinity of Broadway and Jefferson, when he observed contact between the van that Smith was driving and Manzellas car.

Maneuvering his car into oncoming traffic, Wright got out and approached Smiths drivers side window where he displayed his badge and ordered Smith to pull over. T. 161. Smith ignored Both

this request and continued to drive down Jefferson Avenue.

Wright and Manzella pursued the white van until it crashed into a tree in a vacant lot on Mortimer Street, where Smith jumped out and ran through several yards before the two men lost sight of him. T. 164-165.

Officer Wright proceeded back to Jefferson and Broadway, where he met up with Manzella and began to drive around looking for the fleeing suspect. Manzella described the perpetrator as

a thin black male, about six feet tall, wearing a longer-thanknee-length black coat and knit cap with a Nike emblem on it.

3

T. 99, 47, 68, 126. Wright described the suspect as about fivefeet-nine to five-feet-ten inches tall, with a medium build, wearing a mid-length black coat. T. 167. In response to

several 911 calls, police converged at 320 Monroe Street and entered the building, where Smith was apprehended.2 Upon his

seizure, Smith was clad in a hooded sweatshirt and light-colored jacket, which was muddy. Officer Jimmie Adams T. 294, 296. At trial, Buffalo Police testified that former

("Officer

Adams")

Officer Carl Fleming ("Officer Fleming") discovered a black down coat and knit cap lying underneath a rock by a house directly to the rear of 320 Monroe Street. length of the coat as T. 263-264. below the Adams described the waist. T. 264.

slightly

Although the clothing had been taken into police custody, the prosecution never produced the clothing at trial. Both Manzella and Wright identified T. 125. Smith as the

perpetrator outside of 320 Monroe Street, approximately fifteen minutes after the chase, when Smith was apprehended. The

victim, Johnston, was taken by ambulance to South Buffalo Mercy Hospital. Police intercepted the ambulance and displayed Smith T. 385-

to Johnston; Johnston identified Smith as the suspect. 386.

2

At his arrest, Smith gave police the name "Kenneth Smith" with a date of birth of December 7, 1967. It was later determined that Smiths real name and date of birth was "Raymond E. Smith", April 8, 1965. 4

Johnston

testified

via

videotape

as

a

"special

witness"

pursuant to N.Y. Crim. Proc. Law ("C.P.L") appearing at the Grand Jury proceedings. Johnston December was 7, shown 1967, a and photograph not of of a

§ 190.32 in lieu of

During that procedure, Kenneth E. Smith, Smith, the born actual

Raymond

suspect involved the robbery.

Johnston identified the person in T. 402. Due

the photograph as the perpetrator of the robbery. to Johnstons misidentification, the People

accordingly

instructed jurors not to base their decision on the victims identification, but only on the identification of the other two witnesses. T. 5, 6. The

A Wade hearing was conducted on September 15, 1997.3

trial court found that the three show-ups (identification of Smith by Manzella, Wright, and Johnston) were not suggestive, and they occurred could the promptly. be supported would Further, by the the in-court show-up suppress

identification evidence, and

pre-trial not

court

therefore

identification testimony stemming from the show-up. The jury found Smith guilty on all charges and a verdict was entered on May 15, 1998. The trial court sentenced Smith as

a persistent violent felony offender to an indeterminate term of imprisonment of twenty-five years to life for the conviction of
3

United States v. Wade, 388 U.S. 218 (1967) (due process clause precludes states from obtaining evidence through unduly suggestive identification procedures). 5

Robbery

in

the

First

Degree

and

to

lesser

concurrent

indeterminate terms for the other offenses. While his direct appeal was pending, Smith collaterally

attacked his conviction in state court.

On February 1, 1999,

Smith filed a motion pursuant to C.P.L. § 440.10 seeking to vacate his conviction, alleging: (1) that material evidence

presented at trial was known by the prosecution to be false; and (2) improper and prejudicial conduct by the Prosecution. latter is comprised grand jury and of the Peoples failure to The

disclose to the

Johnstons Wade

identification the complete

until

subsequent to

hearing,

failure

disclose

misidentification by three other individuals.4

Smiths first

claim was denied, and his second claim relating to Prosecutions delayed disclosure of the "misidentification" by Johnston was also denied as sufficient facts appeared in the record to permit Appellate review, and appeal was pending at that time.5 On direct appeal, Smiths appellate counsel raised ten The

issues, four of which are raised in the instant petition.

Appellate Division, Fourth Department, modified the judgment by reducing Smiths conviction of Grand Larceny in the Third Degree to the lesser- included offense of Petit Larceny and vacated the sentence
4 5

imposed

thereon.

His

conviction

was

unanimously

Only one individual, Robert Johnston, wrongly identified the suspect. Pursuant to New York Criminal Procedure Law § 440.10(2)(c). 6

modified on the law and as modified affirmed on December 21, 2001. People v. Smith, 289 A.D.2d 1056 (4th Dept., 2001). Appellate Division held: The

(1) Smith was not denied right to

confront witnesses based on state's failure to preserve Brady material, and the adverse inference charge was proper; (2)

suppression of identification testimony of the eyewitnesses was not warranted; (3) the trial courts error in admitting the

victim's show-up identification of defendant was harmless; and (4) that viewed in totality, Smith was afforded meaningful Leave

representation.

People v. Smith, 289 A.D.2d 1056, 1058.

to appeal to the Court of Appeals was denied on April 1, 2002. People v. Smith, 98 N.Y. 2d 641 (2002). On October 24, 2002, Smith brought a second C.P.L. §

440.10 motion for vacatur based on an alleged deprivation of effective assistance of counsel. counsel was already found by Since the issue of ineffective the Appellate Division to be

without merit, the Supreme Court denied Smiths motion on June 11, 2003. C.P.L.440.10(2)(a). The court further noted that Smith failed to raise specific claims of ineffectiveness on direct appeal despite there being sufficient facts contained in the record. C.P.L.440.10(2)(c). (State Court Records, Memorandum and Order dated June 11, 2003). Smith then filed a petition for habeas relief in this Court, setting forth seven grounds for habeas relief. (Docket No. 1).
7

Respondent answered the petition, asserting that none of Smiths claims have merit, and that all were "rejected either by the appellate court in his direct appeal or by the trial court in his post-verdict motion." Respt Answer at 6 (Docket No. 9). In his Traverse ("Trav.") dated May 24, 2004, Smith consented to dismissal of three of the seven claims. No. 14). Trav. at 2. (Docket

The remaining habeas claims include: (1) the Peoples

failure to preserve evidence denied Smith his right to a fair trial; (2) the identification testimony deprived Smith of his due process rights; (3) the trial court improperly charged the jury on "dangerous instrument" thereby impermissibly amending the indictment; and (4) ineffective assistance of trial counsel.6 For the reasons set forth below, the petition is denied. DISCUSSION I. Exhaustion Requirement There is no question that Smith has exhausted his available state court remedies. See 28 U.S.C. § 2254(b)(1); Picard v.

Connor, 404 U.S. 270 (1971); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); see e.g. Diaz v. Mantello, 115 F.Supp.2d 411, 416 (S.D.N.Y. 2000) ("a petitioner must fairly present his

federal claims to the highest state court from which a decision can be had, informing the court of the factual and legal bases

6

Smiths claim for ineffective assistance of counsel is comprised of seven underlying grounds. 8

for the claims asserted" (citations omitted).

As noted, through

appellate counsel, Smith raised on direct appeal the same claims he now raises in this petition. to the New York Court of His motion to leave to appeal was denied. Respondent

Appeals

concedes that Smith has properly exhausted all of the claims raised in the present habeas petition. Respt Answer at 6

(Docket No. 9).

Accordingly, this Court finds that Smith has

exhausted his available state court remedies. II. Procedural Default Smith has assailed trial counsels performance on myriad grounds. First, on the habeas petition (Docket No. 1), Smith

has alleged the following claims: (1) trial counsel failed to object to identification testimony at the Wade hearing; (2)

trial counsel failed to object to the prosecutors summation, insofar as it made reference "Im to gonna Smiths beat oral it"; statement (3) to

Detective failure

Jordan to

that, a

counsels the Smith

request comment

curative he

instruction not

regarding

prosecutors

that

could

cross-examine

regarding the aforesaid statement; (4) failure to object to the courts dismissal of a prospective African-American juror; (5) failure to object to the particular language used by the court in giving a "no adverse inference" instruction to the jury; (6) failure to request a jury instruction on the affirmative defense

9

to robbery; and (7) failure to challenge the constitutionality of Smiths predicate felonies.7 The Respondent submits that several of Smiths ineffective assistance of counsel claims are procedurally defaulted because

the trial court, in disposing of Smiths second motion to vacate the judgment, relied upon a state procedural bar rule, C.P.L. §

440.10(2)(c).8 A federal court may not review a federal question on habeas review if the state courts "decision rests upon

adequate and independent state grounds." Harris v. Reed, 489 U.S. 255, 261 (1989) (citations and internal quotation marks omitted). "[A] procedural default does not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment in the case ,,clearly and expressly states that its judgment rests on a state procedural bar." Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)); see also Harris, 489 U.S.

7

This Court notes that through counsel, in his appellate brief on direct appeal, Smith raised the same claim as number one (1) above. The Appellate Division did not address the instance of ineffectiveness specifically, but ruled generally that Smith received meaningful representation. As such, this claim is not subject to the procedural bar and will be reviewed on the merits. 8 "Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him[.]" N.Y. Crim. Proc. Law § 440.10(2)(c).

10

at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails

reconsideration of the federal issue on federal habeas."). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding

addressing a procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam). A procedural bar forecloses federal habeas review only

where it constitutes both an "independent" and "adequate" state law ground for deciding the claim. In the present case, it is clear from the state trial courts decision that the court was relying on an "independent" state procedural rule (i.e., C.P.L. § 440.10(2)(c)) and not on any rule of federal law in denying the motion to vacate with respect to Smiths claims. Thus, it only remains to be determined whether the rule relied upon was "adequate" to support the decision. A procedural bar is "adequate" if it is based on a rule that is ",,firmly established and regularly followed by the

state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application and of the procedural must rule be is "firmly in the

established

regularly

followed"
11

judged

context of "the specific circumstances presented in the case[.]" Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna, 534 U.S. 362, 386-87 (2002)); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) ("State courts may not avoid deciding

federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."). Claims two (2) through seven (7) were raised in various forms C.P.L. in § Smiths 440.10. motion The to trial vacate court the judgment them pursuant as to

rejected

without

merit, and also because they could have been raised on direct appeal, invoking C.P.L. § 440.10(2)(c). The Court finds that

the procedural grounds proffered by the trial court satisfy the "adequacy" instant standard with given the to circumstances these presented in the

case

respect

ineffective

assistance

claims. The Court notes that, under New York law, ineffective counsel claims involving matters outside the record generally must be pursued by way of a C.P.L. § 440.10 motion. New York courts have held that some ineffective assistance claims are "not demonstrable on the main record" and are more appropriate for collateral or post-conviction attack, which can develop the necessary evidentiary record. Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (citing People v. Harris, 109 A.D.2d 351, 360 (2d Dept. 1985).

12

Here,

the

ineffective

assistance

claims

regarding

trial

counsels failure to make proper objections and challenge the validity of his prior convictions are based on matters within the trial record. As such, it appears that the claims were

properly the subject of a C.P.L. § 440.10 motion to vacate. The Court cannot see any reason why appellate counsel would have needed an evidentiary hearing or other information outside of the trial record in order to develop these grounds. See Sweet v. Bennett, 353 F.3d at 140 ("However, the alleged error that is the basis for Sweets in the ineffectiveness trial record. claim Trial was particularly plainly

well-established

counsel

failed to object on inconsistency grounds to charging the counts in the conjunctive. Sweet has not offered a reason, and we see none, suggesting that appellate counsel would have needed a new evidentiary hearing to develop this claim.") (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (finding that the trial record provided a sufficient basis for the ineffective

assistance claim on trial counsels failure to object to a jury charge, and so C.P.L. § 440.10(2)(c) was an adequate and

independent basis for denying such a claim); Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (holding on that C.P.L. § for

440.10(2)(c) failing to

barred object

collateral on double

attack

trial

counsel

jeopardy

grounds;

defendant

unjustifiably failed to raise the ineffective assistance issue
13

on direct appeal). Accordingly, the trial court was correct in concluding ineffective sufficient C.P.L. § that Smith unjustifiably claim on failed to argue these a

assistance record, and

direct waived

appeal the

despite claim claims

consequently

under are habeas

440.10(2)(c). defaulted for

Accordingly, the purposes

these of

procedurally review.

federal

A procedural default will "bar federal habeas review of the federal claim, unless the habeas petitioner can show ,,cause for the default and ,,prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a ,,fundamental miscarriage of justice." Harris v. Reed, 489 U.S. at 262 (citations omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). Smith has not demonstrated "cause" that would excuse his failure to raise this issue in his direct appeal, nor has he shown "prejudice" attributable thereto. Similarly, Smith has not made a showing order to of "actual innocence," which is necessary in that if there the would be a to "fundamental consider the

establish of

miscarriage

justice"

Court

fails

merits of the claim. See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Murray v. Carrier, 477 U.S. 478, 496-97
14

(1986); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). court finds that Smiths claim of ineffective assistance

The of

counsel is procedurally barred and he has not shown cause or prejudice to overcome such bar. III. Merits of Remaining Claims A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas

corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the

adjudication of the claim (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); see also Williams v. Taylor, 529 U.S. 362, 375-76

(2000). An "adjudication on the merits" is a substantive, rather than a procedural, resolution of a federal claim. Sellan v.

Kuhlman, 261 F.3d 303, 313 (2d Cir. 2000). Federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors of state law

are not subject to federal habeas review. See, e.g., Estelle v.
15

McGuire, 502 U.S. 62, 67-68 (1991); Cupp v. Naughten, 414 U.S. 141, 146 (1970). Smiths remaining claims were adjudicated on the merits by the Appellate Division, Fourth Department.9 A.D.2d 1056 (2001). The court now turns People v. Smith, 289 to an analysis of

Smiths four (4) habeas claims on the merits. 1. Violation of Prosecutor's Brady Obligations

Smith contends that the prosecution deprived him of a fair trial under Brady v. Maryland, 373 U.S. 83 (1963) because of the failure to preserve the hat and coat recovered from the rear of the home where he was arrested.10 In a series of pre-trial motions, defense counsel made a general Brady demand seeking exculpatory evidence and a demand for any property seized at the scene of the alleged offense. In

response, the prosecutor filed an Answering Affidavit in which he denied being aware of or in possession of Brady material and in which he responded that "a coat and skull cap were taken from a rear yard at 320 Monroe Street." Respt Memorandum of Law ("Mem.") at 2. (Docket No. 11). During the testimony of

Manzella, the prosecutor elicited that at the time of his attack
9

A state court "adjudicates" a petitioners federal constitutional claims "on the merits" when it disposes of the claim ,,on the merits and reduces its disposition to judgment." Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). 10 Brady v. Maryland, 373 U.S. 83 (1963) (suppression by prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of prosecution). 16

on

Robert

Johnston

petitioner

was

wearing

a

"three-quarter

length black jacket, a Nike hat and a hoodie." T. 47. Manzella recalled that when petitioner was removed from the rear of the 320 Monroe Street, he was no longer wearing the jacket and hat, but wore only the hooded sweatshirt. T. 57. he later saw the black jacket and hat He testified that had been

petitioner

wearing at the time of the attack when they were brought out by the police from the rear of 320 Monroe Street. T. 57, 94. On cross-examination of Manzella, trial counsel asked the prosecution to produce the hat and coat for the jury. At that time, the prosecutor revealed that the police had failed to preserve them, prompting an objection by defense counsel. T. 125-126. wearing a Subsequently, Officer Wright described petitioner as "mid-length black coat and hat." T. 167. Like

Manzella, he was present when petitioner emerged from the rear of 320 Monroe without the hat and coat. T. 169. Officer Adams

testified that he and his partner Officer Fleming were assigned to search the vicinity of 320 Monroe Street for clothing and a weapon. T. 262-263. He recalled that Fleming found the coat

and hat under a rock by a fence in the rear of 320 Monroe Street. T. 264.

At the close of the Peoples proof, trial counsel moved to dismiss the indictment arguing that petitioner had been deprived
17

of possible exculpatory material and that the hat and coat were material evidence. T. 453. In denying the request the court

noted that Smiths argument to dismiss the indictment would have been stronger if he had been wearing the hat and coat at the time of his arrest, instead of it being found under a rock in the rear of the premises. T. 456. Relying on People v. Gibbs,

85 N.Y.2d 899 (1995), the court advised defense counsel that it would give the jury a permissive inference charge concerning the evidence. The court also pointed out that defense counsel had used the loss of the evidence to his advantage by arguing the incompetence of the police and casting reasonable doubt on the proof. Additionally, it commented that petitioner never

requested the clothing until the conclusion of the testimony of the first witness. T. 493. The Appellate Division, Fourth

Department agreed that the failure to preserve the hat and coat did not create reasonable doubt that did not otherwise exist, and the courts adverse charge alleviated any prejudice to

Smith.

Smith, 289 A.D.2d at 1057-1058. Smith cannot establish the required components of a

Here,

Brady violation, i.e., that the undisclosed evidence must have been favorable to the accused; the state must have suppressed the evidence, either wilfully or inadvertently; and prejudice to the petitioner must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "Evidence is favorable to the accused if it
18

either tends to show the accused is not guilty or impeaches a prosecution witness." Boyette v. LeFevre, 246 F.3d 76, 90 (2d Cir. 2001) (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). Prejudice, in the Brady context, requires a showing

that there is a "reasonable probability" that the outcome of the trial would have been favorable to petitioner, had the material been disclosed. Bagley, 473 U.S. at 682 ("The suppression of exculpatory documents does not cause a constitutional violation unless the documents are material, i.e., ,,there is a reasonable probability defense, that, had the of evidence the been disclosed would to the been

the

result

proceeding

have

different."); accord, e.g., Boyette v. Lafevre, 246 F.2d 76 (2d Cir. 2001). Smith claims the missing evidence speaks to the issue of identification on multiple bases: (1) that eyewitnesses provided a description of the perpetrator wearing a black coat and hat, but when Smith was arrested, he was not wearing either garment; (2) there exists a possibility that the coat would not fit him, but was unable to be proven at trial absent the coat; (3) the coat is relevant to the accounts given by the eyewitnesses as to how the gun was concealed in the coats sleeve; and (4) defense counsel did not have the opportunity to test the coat to

determine whether blood had been present from the attack.

19

In this case, Smith has not demonstrated that the withheld evidence was favorable to his defense. Respondent notes in his

memorandum of law that "had the clothing been present in court, it would merely have served to reinforce the Peoples proof, since the clothing described by the witnesses as being worn by petitioner and was recovered at the rear of the home from which petitioner was apprehended." Respt Mem. at 2. (Docket No. 11). Further, defense counsel, on cross-examination and on summation, discussed the absence of the evidence and emphasized the

Peoples responsibility for its loss and the potential impact on the defense. T. 177, 218, 258, 268, 326, 521. To the extent that Smith may be alleging a claim under Youngblood v. Arizona, 488 U.S. 51, 58 (1988), based on the prosecutions failure to preserve the hat and coat, the Court finds that it is without merit. conceals "material" exculpatory When the state suppresses or or impeachment evidence, the

good or bad faith of the prosecutor is irrelevant. Illinois v. Fisher, 540 U.S. 544, 547 (2004) (citing Brady v. Maryland, 373 U.S. at 87; United States v. Agurs, 427 U.S. 97 (1976)). If the state fails to preserve evidence that is only "potentially

useful" to the defendant, on the other hand, this failure does not violate the defendants due process rights unless the

defendant can demonstrate bad faith on the part of the state. Illinois v. Fisher, 540 U.S.
20

at

547-48

(citing

Arizona

v.

Youngblood, 488 U.S. at 58 ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.")). Smith asserts that the loss of the hat and coat by the police was "intentional" and "negligently lost", but makes no real suggestion of bad faith on behalf of the police officers who had custody of the clothing. Trav. at 9-10.

Further, testimony from the police officers indicated that the loss of the evidence was inadvertent. For the reasons given above, there is no reasonable

probability that the outcome of Smiths trial would have been different had the clothing been properly preserved by the state. Smiths claim based on the prosecutions the states Brady violation was is not

dismissed.

And,

therefore,

determination

contrary to, or involved an unreasonably application of clearly established federal law. 2. Smith rights Improper Identification Testimony that by his Due an Process and Sixth Amendment post-

asserts

were

violated

both

allegedly

suggestive

incident show-up by two eyewitnesses (Manzella and Wright) and the victim (Johnston), and from the show-up the identification testimony derived Pet. at 30 (Docket #1).

procedures.

Specifically, Smith contends: (1) that

he was handcuffed and

21

surrounded by police, (2) witnesses knew they were viewing a suspect, and (3) there was a possible joint-viewing of him. A criminal defendants right to due process includes the right not to be the object of pretrial identification procedures that are "so impermissibly suggestive as to give rise to a very substantial Simmons v. likelihood United of irreparable 390 U.S. 377, misidentification." 384 (1968); accord

States,

Manson v. Braithwaite, 432 U.S. 98, 106 n. 9 (1977); Neil v. Biggers, 409 U.S. 188, 198-200 (1972); United States v. Eltayib, 88 F.3d 157, 166-67 (2d Cir.), cert. denied, 519 U.S. 1045

(1996).

In determining whether a particular procedure is unduly

suggestive, the reviewing court must consider the totality of the circumstances. at 167. The following Second Circuit Court to of Appeals has the adopted the Manson, 432 U.S. at 113-14; Eltayib, 88 F.3d

two-step

inquiry

evaluate

constitutional

permissibility of in-court identification testimony based upon out-of-court pretrial identification procedures: [(1)] [D]etermination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise "a very substantial likelihood of irreparable misidentification." [(2)] If pretrial procedures have been unduly suggestive, a court may nonetheless admit incourt identification testimony if the court determines it to be independently reliable. The
22

court should consider the reliability of the identification in light of the opportunity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of [the witness] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. For both pretrial and in-court identifications, the linchpin of admissibility is reliability. However, if impermissibly suggestive procedures are not employed, "independent reliability is not a constitutionally required condition of admissibility, and the reliability of the identification is simply a question for the jury." United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994)

(citations omitted), cert. denied, 514 U.S. 1113 (1995); accord Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir.), cert. denied, 525 U.S. 840 (1998); see also United States v. Taveras, 1995 WL 600860, at *5 (S.D.N.Y. October 11, 1995) ("If pretrial

procedures are not suggestive, the identification is ,,generally admissible without any further reliability inquiry. "). The allegations of suggestiveness arise from two separate show-up procedures. Upon Smiths arrest, Officer Jordan put

Smith in handcuffs and brought him outside the residence at 320 Monroe Street. Approximately four other officers were near

Smith by that time.

W. 43-44.11

Manzella saw Smith first and

11

Citations to "W.__" refer to the Wade hearing transcript. 23

without prompting stated, "Yeah, thats him." W. 44. Wright, the off-duty police officer, also identified Smith without

prompting, and did not do so until the jacket and hat were discovered at the rear of the home. W. 43. Detective Jordan further testified that while at 320

Monroe, he received a call that the victim was in an ambulance at Clinton Street and Jefferson Avenue and would be able to identify the attacker. W.46. Jordan took the handcuffed

petitioner in his unmarked car to the rear of the ambulance. W.46. Johnston, who was lying on a stretcher, sat up, looked at Jordan testified

Smith, and stated, "Yeah, thats him." W. 47.

that he was in plain clothes, that no other police officers were present prior to and no additional clothing had been put on petitioner Johnstons identification. Less than 10 minutes had

elapsed from the time of the call to Johnstons identification. W. 47. In denying Smiths motion, the trial court found all three witnesses credible and that the show-up procedures were not

suggestive.

WD. 3-1112.

Specifically, the court found that the

show-up occurred promptly and that both Manzella and Wright had an independent basis for their identifications. On appeal, the Appellate Division, Fourth Department held that the trial court properly denied Smiths motion to suppress
12

Citations to WD.__" refer to the transcript of the Wade hearing decision. 24

the identification testimony of Manzella and Wright, ruling as follows: The court properly denied that part of defendant's motion seeking to suppress the identification testimony of the two eyewitnesses. Contrary to defendant's contention, "[t]he circumstances that defendant was handcuffed behind his back and in the presence of police officers, and that the [witnesses knew they] would be viewing a suspect, did not render the [showup identification] procedure unduly suggestive" (People v. Edwards, 259 AD2d 343, 344, lv denied 93 NY2d 969; see, People v. Clark, 280 AD2d 979, 980). Even assuming, arguendo, that one witness was present when another witness identified defendant, we conclude that the procedure was still "tolerable in the interest of prompt identification" (People v. Johnson, 221 AD2d 1016, 1017; see, People v. Jenkins, 175 AD2d 648, 649, lv denied 78 NY2d 1012; cf., People v. Adams, 53 NY2d 241, 248-249). We agree with defendant that the court should have suppressed the showup identification of defendant by the victim. "[O]nce [the] initial showup provided the police with an immediate identification of the alleged perpetrator[ ] as well as probable cause to place [him] under arrest, no 'exigent circumstances' existed for the subsequent showup" (People v. Rayford, 158 AD2d 482, 484; see, People v. Johnson, 169 AD2d 779, 781, lv denied 77 NY2d 996). The error, however, is "harmless beyond a reasonable doubt" (People v Crimmins, 36 NY2d 230, 237). People v. Smith, 289 A.D.2d 1056, 1057-58 (4th Dept. 2001).

Based on the facts in the record, Smith was apprehended in close proximity to the scene of the crime and the time that had elapsed between the time of the attack and the show-up (10 to 15
25

minutes) within acceptable boundaries.

United States v. Butler, U.S. 980;

970 F.2d 1017, 1021 (2d Cir. 1992); cert. denied 506

United States v. Sanchez, 422 F.2d 1198, 1999 (2d Cir. 1970) cert denied 406 U.S. 927. That Smith was seen handcuffed or

standing close to police officers does not render the show-up infirm or create a substantial likelihood that petitioner would be mis-identified. Based on the Jones v. Strack, 1999 WL 983871 (S.D.N.Y). analysis set forth above, Smith cannot

demonstrate that the state courts findings with respect to his motion to suppress the identification testimony resulted in a decision that was contrary to clearly established federal law, was based on an unreasonable determination of the facts, or otherwise caused his conviction to be obtained "in violation of the Constitution or laws or treatises of the United States . . . " 28 U.S.C. § 2254. Accordingly, it is the conclusion of this

Court that Smith is not entitled to habeas corpus relief on the ground that the trial court improperly admitted the eyewitness identification evidence, and therefore, this claim is dismissed. 3. Smith degree Improper Jury Charge that third by charging the jury under second the

contends and

assault

degree

weapon

possession,

that

People did not have to prove that the "dangerous instrument" involved in the offenses was an operable firearm, the court erroneously expanded the prosecutions theory of the case and
26

violated

his

constitutional

right

to

be

tried

on

charges

preferred by the Grand Jury. Pet. 33-34 (Docket No. 1). Smith also argues that the court "erroneously engrafted" the "what appeared to be a firearm" language from the first degree robbery charge, instructing the jury that they could convict if the People proved the object used during the robbery "appeared to be a firearm." Pet. at 35. A habeas petitioner has a high hurdle to clear before

obtaining relief based on an allegedly infirm jury instruction. In reviewing the propriety of the challenged instruction, the habeas court must ask "whether the ailing instruction by itself so affected due the entire trial Cupp v. that the resulting 414 U.S. 306 conviction 141, 147

violates (1973);

process." e.g.,

Naughten, v.

accord,

DelValle

Armstrong,

F.3d

1197,

1200-01 (2d Cir. 2002). Under the fourth count of the indictment, Smith was charged with second degree assault, in that "with intent to cause

physical injury to another person, caused such injury to Robert Johnston by striking him with a dangerous instrument, to wit, a firearm." Count five of the indictment charged Smith with third degree weapon possession in that Smith "feloniously possessed a dangerous instrument, to wit, a firearm with intent to use the same unlawfully against another, to wit: Robert Johnston." During the

(State Court Records, Indictment No. 96-3046-001).
27

pre-charge conference, the court advised the parties that it intended to charge that the People must prove that Smith used and possessed a dangerous instrument. T. 505. to charge that the People had to prove The court refused the dangerous

that

instrument was an operable firearm, reasoning that the firearm was an "added allegation that went beyond what was necessary." T. 505. Whether or not the handgun was operable is not, by

statute, a material element of second degree assault or third degree weapon possession. N.Y. Penal Law §§ 120.05, 265.02.

Nowhere is there a requirement that a dangerous instrument be "operable" for either crime. Respondent is correct in asserting that "There is no doubt that the crimes charged by the trial court were the same criminal transactions for which the grand jury intended to indict petitioner." Respt Mem. at 39 (Docket No. 11). Viewing the charge as a whole against the exacting standard enunciated in Cupp v. Naughten, the Court cannot find that the trial courts "dangerous instrument" charge deprived Smith of a fundamentally holding was fair trial. Thus, the Appellate nor an Divisions

neither of,"

"contrary

to,"

"unreasonable As a

application

governing

Supreme

Court

precedent.

result, this claim is dismissed. 4. Ineffective Assistance of Trial Counsel: Failure to Object to Identification Testimony at Wade Hearing
28

To establish that he was deprived of his Sixth Amendment right to the effective assistance of trial counsel, a petitioner must show that (1) his attorneys performance was deficient, and that (2) this deficient performance prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficiency is measured is by an objective standard a of reasonableness, of a and

prejudice

demonstrated

by

showing

"reasonable

probability" that, but for counsels unprofessional errors, the result of the trial would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding." Id. To succeed, Smiths challenge of trial counsels representation must

overcome a "strong presumption that [his attorneys] falls within the Id. at wide 689. range A of reasonable court

conduct

professional judge the

assistance."

reviewing

"must

reasonableness of counsel's challenged conduct on the facts of the particular Id., case, and viewed may not as of the time of counsel's counsels

conduct," strategy.

second-guess

defense

Id. at 690.

Smith contends, as he did on appeal, that he was deprived of effective assistance of counsel in violation of his Sixth Amendment rights, based on his attorneys failure to object to testimony at the pre-trial Wade
29

hearing.

Specifically,

he

alleges

that

trial

counsel

did

not

object

to

the

lack

of

adequate notice, nor did

trial counsel

move to preclude the

victims testimony on this ground. Prior to Smiths trial, the People filed a C.P.L. § 710.30 notice Manzella indicating and an intention Wright to and introduce Jordan testimony as to by

Officers

their

identification of Smith on the date of his arrest. The notice also Smith included by a confirmatory and Officer photographic Jordan in identification Grand Jury. of No

Manzella

the

further evidence was contained in the notice.

Respondent notes

that the notice filed by the People was deficient because it failed to inform Smith about Johnstons identification of him. Respt Mem. 11 (Docket No. 9). This court need not decide whether trial counsels failure to object to this testimony lacked a strategic basis and was objectively unreasonable. of the testimony by Any error occasioned by the admission was harmless in light of the

Johnston

overwhelming evidence of Smiths guilt.

The People still had

the identification testimony of both Manzella and Officer Wright to support their proof. Further, of show defense all the counsel conducted

extensive witnesses

cross-examination in an attempt to

three

identification of the

suggestiveness

procedures and misidentification. Thus there is no reasonable

30

probability that the jury would have acquitted Smith of any of the charges had trial counsel objected, meaning that Smith

cannot satisfy the "prejudice" prong of Strickland. 668. Such a determination is not in violation

466 U.S. of the

Constitution of the United States under Williams v. Taylor, 529 U.S. 362, 375-76 (2000). dismissed. CONCLUSION For the reasons stated above, Kenneth Smiths petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Smith has failed As a result, this final claim is

to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. The Court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. ALL OF THE ABOVE IS SO ORDERED. S/Michael A. Telesca _____________________________________ MICHAEL A. TELESCA United States District Judge Dated: June 16, 2009 Rochester, New York

31