Opinion
98 Civ. 7964 (LTS)(DFE)
August 3, 2001
The habeas petition of Todd Williams challenges his conviction for murder and other crimes, after a 1992 trial in Supreme Court, New York County, before Justice Carol Berkman and a jury. At the trial, it was undisputed that a gunman opened fire on 135th Street, killing one man, severely injuring another, and wounding a third. The gunman was identified as Williams by two men who knew him well.
The first trial ended in a mistrial, because (a) Justice Berkman discovered that one of the 12 deliberating jurors had actually been designated only as an alternate, and (b) Williams declined to consent to allowing the deliberations to continue. (7/20/92 Tr. 2-5.) At the second trial, the jury found Williams guilty of murder in the second degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the third degree. Justice Berkman sentenced Williams to a total term of 30 years to life. The state courts affirmed the conviction.
Williams was represented by Gary Berenholtz at both trials, and by Marianne Karas on appeal. Williams filed this habeas petition pro se, but he is now represented by George Sheinberg. The habeas petition repeats the same five grounds from the direct appeal:
(1) That the evidence was not sufficient to prove Williams guilty beyond a reasonable doubt.
(2) That Justice Berkman erroneously permitted Hardy to testify that he and Williams were drug dealers.
(3) That Justice Berkman erroneously permitted Hardy to testify to hearsay evidence that he was threatened.
(4) That the verdicts on the assault counts were repugnant to the verdicts on the firearms counts.
(5) That the sentence was excessive.
The amended pro se petition, dated October 26, 1999, asserts a sixth ground: ineffectiveness of trial counsel, for not calling Fernanas Peterson to testify at the second trial, although he had done so at the first trial.
On December 2, 1999, Assistant District Attorney Gina Mignola submitted an opposing Memorandum of Law and an Appendix containing Exhibits A through L. I will refer to certain of these Exhibits as "Exh. ___." In March 2000, Mr. Sheinberg entered a notice of appearance as retained attorney for Williams. On October 27, 2000, Mr. Sheinberg filed a Memorandum of Law in Reply.
For the reasons set forth below, I recommend that Judge Swain deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
An Overview of the Trial
On the night of May 10-11, 1991, two young men, James "Bookie" Hezekiah and Michael Muschamp, approached the 135th Street YMCA to go to a dance. A security guard for the dance was Fernanas "Pete" Peterson, a friend of the petitioner Williams. On the well-lit sidewalk, eleven bullets were fired from a single gun. One bullet injured a bystander named Robert Weatherspoon. Four bullets killed Muschamp. Several bullets severely injured Hezekiah. As soon as the police arrived, Hezekiah told them that the shooter was Todd Williams. He later told them that Williams owned a black Maserati. On May 29, the police spotted the Maserati and arrested Williams. Three months later, on August 27, Shannon Hardy was arrested on narcotics charges, and he volunteered to the police that he had witnessed part of the May 11 shooting, and that Todd Williams had stated before the shooting that he was going to shoot "Bookie."
The main attack on Hezekiah's credibility was that he gave the police varying accounts as to whether he saw the gunman's face, although he always said that the gunman was Williams. (Tr. 496.) In summation, Mr. Berenholtz suggested that Hezekiah could have believed that the gunman was Williams (erroneously although perhaps sincerely) because Hezekiah had stolen jewelry from Williams's home and because guilt and paranoia led Hezekiah to believe that Williams was planning to revenge this. (Tr. 527.)
The main attacks on Hardy's credibility were that he had been a drug dealer, and that he did not come forward until Williams was arrested for the shooting, and that Hardy was testifying in an attempt to avoid a prison sentence on significant narcotics charges. The jury was also aware that the prosecution consented to Hardy's release from jail after he alleged that Williams was encouraging inmates to harm him in jail. (Tr. 506-11, 520-21.) At the first trial, the defense argued that the shooter had in fact been Hardy.
A. Hezekiah's testimony about Williams's motive.
Hezekiah was 21 at the time of trial, and testified as follows. He had lived across the street from Williams, who was five years older, and they were friends for many years. (Tr. 69-79.) In September 1990, Hezekiah stole a necklace and pendant from the Williams home. He testified that he did this because Williams had failed to pay him a $50 debt. (Tr. 142-143.) He was warned by Williams's friends and family that Williams was "going to get" him because of the theft. (Tr. 85-86, 150-153, 184-188.) Hezekiah changed his residence and tried to avoid Williams during the six months preceding the shooting. (Tr. 86-88, 141, 153.)
B. Hardy separately befriends Hezekiah and Williams.
Hardy was 22 at the time of trial. During the year prior to the shooting, he met Hezekiah when they were both vendors at Madison Square Garden and when they both worked at Rye Playland. The two were friendly at work, but did not socialize. (Hezekiah: Tr. 88-92; Hardy: Tr. 207, 227-32.)
Hardy knew Williams because they were both drug dealers. Hardy regularly sold cocaine, which he purchased from a supplier nicknamed "Supreme." "Supreme" introduced Hardy to Williams, whom he knew by the nickname of "Divine." (Tr. 233-35.) Hardy and Williams developed a relationship in which they trusted each other and confided secrets to each other. For example, in early 1991, Hardy owed money to "Supreme" and avoided meeting him. In April 1991, Hardy bumped into Williams. Williams confided that "my Godbrother [Supreme] . . . said if I was to see you [I should] do something to you." Williams did not do anything to Hardy; after this conversation, Hardy and Williams began to hang out with each other. (Tr. 238-40.)
C. Williams confides his plans to kill Hezekiah.
Hardy testified as follows. One day, in Williams's home, Williams said that his mother was angry at a kid named "Bookie," who had "dissed" her by stealing some jewelry from her home. Hardy did not learn, until the shooting, that "Bookie" was a nickname for Hezekiah. (Tr. 230, 241-42.) At the end of April, Williams told Hardy that a friend named Jimmy had seen "Bookie" on the corner of 130th Street and Fifth Avenue. Williams pulled up his shirt, revealed a gun in his waistband, and said, "Let's go get him." Hardy replied that "I wasn't going to do nothing to nobody I don't know." (Tr. 242-45.)
Hezekiah testified as follows. Sometime before midnight on May 10-11, Hezekiah and Muschamp approached a security guard at the YMCA dance, a man whom Hezekiah knew as "Pete." Hezekiah confided to Pete that Muschamp was carrying a gun, and Pete refused to let the gun go in to the dance. Hezekiah told him that Muschamp would take the gun home and then they would return. Pete ran after them, tapped Hezekiah with the antenna of his walkie-talkie, and asked, "You sure you coming back?" Hezekiah said "yeah." (Hezekiah: Tr. 98-101.)
Hardy testified that he went to the dance that night. He talked with one of the security guards, Pete, to whom he had once been introduced by Williams. Pete said, "I just beeped Divine. I just saw Bookie. He is coming back." Soon Williams appeared at the front door and said to Hardy, "Yo, Bookie is coming back. I am going to get him. I am going to kill him." Williams lifted his shirt and showed a Tech .22 gun with a clip shaped like a banana. Hardy left him and went downstairs to the dance. (Tr. 245-55.)
D. The shooting
Hezekiah testified that he and Muschamp returned to the YMCA, and that he saw Williams wearing a Gucci sweatshirt with a pouch in front and a hood on top of his head. He saw Williams put his right hand into the pouch and pull out a gun. Hezekiah immediately turned to run, but was shot several times. (Tr. 102-08, 170-71.)
Hardy testified that he heard shots, and got back up to the street level in time to see Williams fire a last shot at Hezekiah. (Tr. 255-58.)
E. Hezekiah tells the police that Williams was the shooter.
Detective Gary Ferguson testified that he responded to the scene, and that Hezekiah told him that the shooter was Todd Williams. (Tr. 45-47.) Detective Cornelius O'Keefe testified to the same thing (Tr. 349-55), and also that he conducted subsequent interviews with Hezekiah. Hezekiah and Detective O'Keefe told the jury that in the next two interviews (immediately before and after surgery) Hezekiah said that he had not actually seen whether the shooter's face was Williams's. Hezekiah testified that this was untruthful, and that he told the whole truth starting on May 18. On that date, he also told Detective O'Keefe that Williams drove a black Maserati. (Hezekiah: Tr. 113-27, 159-67, 191-93; O'Keefe: Tr. 361-68.) On May 29, police spotted the Maserati, and Williams was arrested. (Tr. 369-74.)
F. Williams enlists Hardy's help to conceal the gun.
Hardy completed his testimony as follows. About an hour and a half after the shooting, Hardy called Williams's beeper and they met at 128th Street. Hardy reported that one man died but that it appeared that Hezekiah had survived. Williams said, "I want to get everything out of my house in case they [the police] do come. . . ." Shortly after sunrise, he went to his residence, and came back down with a box containing the Tech .22 gun. He told Hardy, "Just hold it for me and if they don't come, give it back. . . ." But Hardy took the gun to a drug supplier and exchanged it for two ounces of crack, which he sold in Virginia. (Hardy: Tr. 261-67.) It is unclear whether he did this prior to Williams's arrest. (Compare Tr. 269 with Tr. 311.)
Three months after Williams's arrest, Hardy was arrested on August 27, 1991 in the Bronx for possessing 46 vials of crack with intent to sell. He gave a phony name (Shawn Carter) to the arresting officers, but he also told them that he had information about the May 11 shooting at the YMCA. They contacted Detective O'Keefe; he took a written statement from Hardy (who signed it with the name Shawn Carter, although his real name would be revealed by his recent fingerprinting). (O'Keefe: Tr. 374-77, 386-87.)
Hardy jumped bail on the Bronx narcotics case. Then he was arrested in Manhattan with 42 vials of crack, and he jumped bail on that case, too. He also failed to keep in contact with Detective O'Keefe as promised. On June 22, 1992 (one month before Williams's first trial) O'Keefe arrested Hardy on two bench warrants. (Hardy: Tr. 212-14, 322-23; O'Keefe: Tr. 378-81, 395-96.) In the next few days, Hardy and Williams were placed in the same holding cell on two occasions. (The State maintains that this occurred by coincidence and not by design.) Hardy then told the prosecutor that an inmate told him that Williams was encouraging other inmates "to blow you out [of] the frame." As a result of Hardy's allegation, he was released from custody. (Hardy: Tr. 291-92.) He testified pursuant to a written cooperation agreement. (People's Exh. 3, described at Tr. 215-18.)
The Defense Case
Williams did not testify in his own defense. At both trials, his sister Gail Griffin testified that he was left-handed. (Tr. 455-57.) However, this did not significantly contradict Hezekiah's testimony, which said only that Williams used his right hand to take the gun out of the front pouch of his sweatshirt. Hezekiah testified that he turned around at that point, and hence did not know which hand Williams used to pull the trigger. (Tr. 170-71.)
At the first trial, there was a second defense witness, Fernanas "Pete" Peterson. I do not have the transcript of his testimony, but it is undisputed that he testified that the shooter was Hardy. At the second trial, just before the jury selection, the lawyers recounted this aspect of the first trial, and Mr. Berenholtz said he had no intention of calling Peterson at the second trial. (11/23/92 Tr. 12.) The prosecutor, recounting that Peterson had been a last-minute surprise witness, said, "It was clear to everyone that he was lying." Mr. Berenholtz made clear that Peterson had been a last-minute surprise to him, too. He said, "My knowledge of Peterson and the statements that he gave was something that happened at the very end [of the first trial]. And I knew nothing about that." (11/23/92 Tr. 11, 13.)
Subsequent Proceedings
On appeal, Williams was represented by Marianne Karas. In October 1996 she filed a 58-page brief in the Appellate Division. (Exh. A.) On June 10, 1997, the Appellate Division unanimously affirmed the conviction. (Exh. C.) Ms. Karas submitted a letter seeking leave to appeal to the New York Court of Appeals. (Exh. D.) Judge Richard C. Wesley denied leave on October 29, 1997. (Exh. E.)
Ninety days later, on January 27, 1998, the conviction became final when Williams did not petition for certiorari. The one-year statute of limitations for a federal habeas petition thus ran until January 27, 1999. His original petition was sworn to on September 23, 1998. But he simultaneously requested our Court to withdraw the petition while he returned to State court (on the issue which has now become Ground Six). The case was assigned at that time to Judge Stein, who granted the request under the mistaken impression that Williams already had a motion pending before the State courts; in fact, Williams did not present Ground Six to the State courts until February 22, 1999. By order dated July 7, 1999, Judge Stein vacated his earlier action and ordered that the original petition be reinstated. Williams then submitted a two-page Amended Petition dated October 26, 1999; it incorporated Grounds One through Five and added Ground Six. ADA Mignola's 12/2/99 brief, at pages 6-7, did not challenge Judge Stein's 7/7/99 order and explicitly chose not to make a statute of limitations argument. Her choice shows good judgment, particularly in light of the recent decision in Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001).
LEGAL ANALYSIS
Exhaustion
ADA Mignola's 12/2/99 brief, at pages 8-17, argued that Grounds One through Five were not adequately presented to the New York Court of Appeals, because Ms. Karas's leave letter (Exh. D) simply enclosed the Appellate Division briefs. However, this argument is no longer tenable in view of the subsequent decision in Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), as correctly pointed out by Mr. Sheinberg's 10/27/00 reply brief.
I shall now proceed to discuss each of the grounds set forth in the amended petition.
Ground One: That the evidence was insufficient to prove Williams guilty beyond a reasonable doubt.
In her first point to the Appellate Division, Ms. Karas wrote a detailed "second summation." She invoked the Appellate Division's special power "to reverse a judgment as a matter of discretion in the interest of justice where guilt has not been satisfactorily established." (Exh. A at p. 17.) But a federal habeas court lacks that special power. For a federal habeas court, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979) (emphasis in the original). Ms. Karas's brief to the Appellate Division did assert in passing that the verdict should not even survive the lement Federal standard set forth in Jackson (Exh. A at pp. 16-17); but that assertion is utterly without merit. I pause to note the following statement in Mr. Sheinberg's reply brief at page 6:
. . . Hardy was facing several severe narcotics charges (facing 14 years) as well as bailjumping charges. And the jury never heard about the deals.
On the contrary, Hardy's cooperation agreement (People's Exh. 3) was described to the jury at Tr. 215-18, and its potential benefits were explored on cross examination (see Tr. 315-22).
The next four grounds (Two through Five) do not appear to raise any issue of Federal law. If they did, Williams would have to show that the State court's adjudication "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." 28 U.S.C. § 2254(d)(1). Williams has not shown this, and has not cited any Supreme Court holding. A quick description of Grounds Two through Five will show that they do not present a reason to grant habeas.
Ground Two: That Justice Berkman erroneously permitted Hardy to testify that he and Williams were drug dealers.
Ground Three: That Justice Berkman erroneously permitted Hardy to testify to hearsay evidence that he was threatened.
I will treat Grounds Two and Three together because they are essentially claims about State-law evidentiary issues, and because the judge covered them together in a limiting instruction to the jury. It is clear that these evidentiary matters did not have an effect so severe that they deprived Williams of a fair trial.
As part of Ground Two, Ms. Karas argued that Hardy should not have been allowed to testify that he met Williams through the drug supplier "Supreme," that Williams protected Hardy from the supplier's wrath, and that Hardy and Williams became friends by doing some drug dealing together (apparently independent from "Supreme"). The Appellate Division held that this evidence was properly admitted because it "served to complete the narrative of events and to explain the relationship that developed between [petitioner] and the witness [Hardy] to whom [petitioner] confided details about the intended and actual shooting." (Exh. C.)
As the other part of Ground Two, Ms. Karas complained that the prosecutor's summation depicted Williams as a major drug trafficker. See Exh. A at pp. 24-33, which focuses only on Tr. 550 and 570-72. The defense attorney had attacked Hardy as "a notorious drug dealer," both in opening and closing statements. (Tr. 38, 506-08.) In response, the prosecutors summation said:
[Hardy] [w]asn't a guy coming in here with some nice suit on with fancy cars and flashy jewelry. This guy walks in here looking like some kid off the street. Not exactly notorious drug dealer, didn't have his own lawyer. He has a Court appointed lawyer. . . .
(Tr. 550.) The briefs of Ms. Karas (at pp. 25-26) and Mr. Sheinberg (at pp. 8-9) say, in essence, that this was tantamount to a hypothetical argument that "Todd Williams drove a Maserati and has a retained lawyer, which were procured with drug money." The quotation from the actual argument shows that it was quite routine, and that no objection was made to it.
Mr. Berenholtz did object to the following comment at Tr. 570:
If Shannon Hardy is so bad because he is a drug dealer[,] what about Todd Williams who gave this drug dealer protection?
Justice Berkinan said, "I will charge the jury on this issue," and she did so at Tr. 591-92.
Ground Three complained about the following testimony. Hardy testified that he was placed in a cell with Williams and an unknown inmate referred to as the "big guy." (Tr. 277-78.) He further testified that he saw Williams whisper something to the "big guy," and that the "big guy" later confided to Hardy that Williams was telling other inmates that he would put $100 "in anybody's commissary to blow [Hardy] out [of] the frame." (Tr. 291-92.) Ms. Karas made a state-law claim that Hardy's testimony about the warning from the "big guy" was inadmissible double hearsay.See Exh. A at pp. 34-3 9. The People's brief argued that the evidence was non-hearsay, that it was not introduced for its truth but instead for the impact it had on Hardy's state of mind. (Exh. B at pp. 46-47.) The Appellate Division did not discuss Ground Three except to say, "We have considered defendant's remaining contentions and find them to be without merit." To the extent that the jury considered this evidence to be important, it was for the jury to decide whether (a) Hardy sincerely believed that he was being threatened, a fact which the jury might find important in assessing any nervousness in his demeanor on the witness stand, or (b) Hardy did not sincerely believe that he was being threatened, in which case he lied or exaggerated to persuade the District Attorney's office to give him the benefit of release from jail.
Mr. Sheinberg's brief, at p. 12, cites United States v. Mora, 152 F.3d 921, 1998 WL 398802 (2d Cir. June 8, 1998). Although an unpublished opinion should not be cited, I note that the Second Circuit did not rule the testimony to be improper, and that "the court instructed the jury that it could not rely on this testimony for its truth."
Justice Berkman gave the following limiting instruction to the jury, and it was pertinent to both Grounds Two and Three:
Now you have heard evidence in this case with regard to the defendant's relationship with Shannon Hardy and his relationship with Supreme and so forth and so on. Now these matters are in evidence solely to give background and context to the parties' testimony with regard to what happened with regard to the alleged weapon, with regard to what happened after he, Hardy, was locked up and as Hardy testified with regaid to Mr. Hezekiah's [probably a misprint or a slip of the tongue for "Hardy's"] state of mind. Those are the purposes for which you may consider this evidence. It's not for you to decide that you like defendant or not.
(Tr. 591-92.)
Ground Four: That the verdicts on the assault counts were repugnant to the verdicts on the firearms counts.
In addition to the sentence for the murder of Muschamp, Williams received a consecutive sentence for the assault on Hezekiah. Ground Four asks that the assault counts be dismissed on the theory that they are inconsistent with the fact that the jury acquitted Williams of Criminal Possession of a Weapon in the Second Degree (of which an essential element would have been an intent to use the weapon unlawfully against another person). Justice Berkman rejected this argument at Tr. 688-89; she stated her reasons in detail at Sentencing Tr. 13-15 and noted:
. . . I suspect that what the jury had in mind was the time when the defendant gave the gun to [S]hannon Hardy to dispose of it, and that they concluded that they were not being asked to address the question of the gun at the time that it was actually used. . . .
This strikes me as a very reasonable explanation. In any event, Ground Four (see Exh. A at pp. 40-49) is entirely an issue of State law. A claim of inconsistent or repugnant verdicts presents no issue upon which federal habeas corpus relief could be granted. Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464 (1981).
Ground Five: That the sentence was excessive.
Petitioner received an aggregate term of 30 years to life for the depraved-indifference murder of Muschamp and the first-degree assault on Hezekiah. Ground Five (see Exh. A at pp. 50-57) raises no Federal issue.
Ground Six: That the trial counsel was ineffective because he did not call Fernanas Peterson to testify at the second trial.
As noted at pages 10-11 of this Report, prior to jury selection in the second trial, Mr. Berenholtz stated in front of Williams that the defense had no intention of calling Fernanas Peterson at the second trial. Williams made no objection to this at trial, or at sentencing, or during the direct appeal. He made such an objection for the first time on February 22, 1999, when he made a pro se motion to vacate his conviction. (Exh. F.) He did not give any reason for his failure to object during the prior six years and more.
He asserted that Mr. Berenholtz gave ineffective assistance because he failed to call "Pete" Peterson. He also asserted that Mr. Berenholtz aggravated the situation by his opening statement, which allegedly told the second jury "[y]ou are going to see and hear from Pete." See Exh. F at Mem. of Law at pp. 1-2, citing Tr. 39, where what Mr. Berenholtz actually said was: "You are going to see Pete." The second jury did see Pete, in a videotape taken by the police of the crowd shortly after the shooting. (Tr. 53-56.) Hardy showed the jury Pete's face on the videotape, standing on the top step of the YMCA. (Tr. 136-38.) The police confirmed that Hardy had pointed to a man on the top step as the person who "set him up." (Tr. 56-58, 87-88.) Mr. Berenholtz made the best of this by arguing that the police's failure to interview Pete showed a sloppy investigation. (Tr. 39, 503-05.)
In response to Williams's 1999 motion, Mr. Berenholtz submitted an affidavit stating that it was "obvious to me that `Pete' was an incredible witness [at the first trial] and it was my decision not to call him as a witness in the second trial inasmuch as his cross-examination . . . would be devastating to the defendant's case." (Exh. H at p. 2.)
On May 19, 1999, Justice Berkman rejected the claim of ineffective assistance, and wrote in part:
. . . Peterson's credibility had been severely undermined at the first trial. Peterson had some difficulty answering a question on cross-examination as to whether Hardy was in the courtroom (he was not) and was also impeached with a felony weapons possession conviction.
Based on Peterson's prior performance as a witness, defense counsel's decision not to call Peterson as a witness at the second trial . . . clearly falls within the ambit of effective assistance.
(Exh. I, pp. 2-3, footnote omitted.) More than six years earlier, at the sentencing, Justice Berkman had stated that it was quite apparent to her at the first trial that Peterson "was lying." (Sentencing Tr. 12-13.) Williams's pro se papers and Mr. Sheinberg's brief (see pp. 15-16) have failed to show that Mr. Berenholtz's decision was unwise, or that Williams even objected to it until 1999.
CONCLUSION
For the reasons stated above, I recommend that Judge Swain deny the petition.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy, by filing written objections with the Clerk of the U.S. District Court and mailing copies (a) to the opposing party, (b) to the Hon. Laura Taylor Swain, U.S.D.J. at Room 426, 40 Centre Street, New York, N Y 10007 and (c) to me at Room 1360, 500 Pearl Street. Failure to file objections within 10 business days will preclude appellate review. Thomas v. Arn, 474 U.S. 140 (1985);Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Any request for an extension of time must be addressed to the District Judge.