Opinion
#95-B-0887, 00-CV-0234E(Sr)
July 11, 2002
MEMORANDUM and ORDER
Petitioner, currently incarcerated in the Collins Correctional Facility and serving an eight-and-1/3 to twenty-five year sentence for Manslaughter in the First Degree, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 March 15, 2000. Petitioner alleges that he is being held in custody unlawfully because his conviction had been obtained in violation of his Fourteenth Amendment right to due process on three grounds — viz., (1) the trial court's refusal to allow his former attorney, Timothy M. Lexvold, Esq., to testify at trial that petitioner's younger brother, Christopher Jones, had confessed to Lexvold to having committed the crime for which petitioner was charged, (2) the trial court's summary denial of his motion for a new trial pursuant to Section 440.10 of the C.P.L.R. § 440.10 on the basis of newly discovered evidence — i.e., that Christopher had repeated his confession to his mother and his older brother, Lascelles Jones, during a telephone conversation a week after petitioner had been sentenced — and (3) the use of an unduly suggestive photographic array for witness identification purposes. Pursuant to 28 U.S.C. § 636(b)(1)(B), the petition was referred to Magistrate Judge H. Kenneth Schroeder, Jr. for an evaluation of the merits of the factual and legal issues raised by petitioner and a recommended disposition. Judge Schroeder filed his R R March 28, 2001 recommending that the petition be denied in its entirety.
New York's Civil Practice Law and Rules.
Report and Recommendation.
Specifically, Judge Schroeder recommended that habeas corpus relief be denied on petitioner's first ground because Christopher's confession did not bear sufficient indicia of reliability and therefore its exclusion as inadmissible hearsay did not violate petitioner's Fourteenth Amendment due process right to present a defense, on his second ground because alleged procedural errors in post-conviction state court proceedings are not redressable through federal habeas corpus review and on his third ground because the second photographic array was not unduly suggestive because it consisted of six black males, of whom three or four were wearing some type of hooded jacket and half of whom had a lazy left eye and the other half a lazy right eye. Petitioner filed his objections to the R R April 10, 2001 and such were submitted on the papers May 25, 2001 and have thereafter been before this Court for disposition.
In his objections to the R R, petitioner did not make any specific objections to those parts of the R R wherein Judge Schroeder had found that his right to due process had not been violated by the trial court's summary denial of his motion for a new trial or by having permitted the use of the photographic array, but simply stated that he "relies on the arguments raised in his direct appeal and habeas corpus papers to substantiate [such] claims before this Court." Objections at 1. Pursuant to Rule 72.3(a)(3) of this Court's Local Rules of Civil Procedure the objections to an R R "shall specifically identify the portions of the [R R] to which objection is made and the basis for such objection and shall be supported by legal authority." See also Rule 72(b) of the Federal Rules of Civil Procedure. Petitioner was advised of such in the R R and was warned that failure to comply could result in this Court's refusal to consider the objections. Inasmuch as petitioner has failed to articulate any basis for his objections to those portions of the R R wherein Judge Schroeder found that he was not deprived of his right to due process by the trial court's summary denial of his motion for a new trial or allowing the use of the photographic array and because this Court is satisfied that such portions of the R R are correct, petitioner's objections to such will be overruled and such part of the R R will be adopted. Petitioner did file specific objections to that part of the R R wherein Judge Schroeder found that the trial court's refusal to allow Lexvold to testify that Christopher had confessed to the crime for which petitioner was being tried on the basis that such was hearsay not covered by the exception for declarations against penal interest — did not deprive him of his Fourteenth Amendment due process right to present a defense. Pursuant to 28 U.S.C. § 636(b)(1)(C) this Court has conducted a de novo review of such issue.
Petitioner had been arrested April 20, 1994 and charged with having fatally stabbed James Felder, a/k/a "J-Rock," March 30, 1994 at the Flint Street Recreation Center (the "Center"). Petitioner had subsequently been indicted for Second Degree Murder, Lexvold of the Monroe County Public Defenders Office had been assigned to represent him and the case had been assigned to Judge David D. Egan of the Monroe County Court. On December 20, 1994 Lexvold had informed Judge Egan in chambers that he would be moving to withdraw as counsel for petitioner because he might become a witness at petitioner's trial. A hearing on Lexvold's motion to withdraw was held December 22, 1994 during which Lexvold revealed that Christopher had confessed to him that he, not petitioner, had stabbed Felder at the Center and that Lexvold believed that he himself would likely have to testify as a witness to such because he did not believe that Christopher would be available to testify at petitioner's trial. Judge Egan then granted Lexvold's motion to withdraw, substituted James S. Hinman, Esq. as petitioner's attorney and, at the request of the prosecution, issued a material witness warrant for Christopher. A jury trial was held before Judge Egan in the Monroe County Court January 17-25, 1995 whereat petitioner was represented by Hinman. The evidence adduced at trial by the prosecution tended to show the following.
Christopher had been arrested along with petitioner; however he had been released after he had given a statement to the police wherein he had stated, inter alia, that he had seen Felder punch petitioner whereupon he had approached the hallway and when he had arrived he had seen petitioner on the ground and Felder running down the hall towards the exit. Christopher stated that petitioner had stabbed Felder with his buck knife, which is black with a three inch blade but that he had not intended to kill Felder but had just been defending himself and that when he and petitioner had been driving home from the Center, that petitioner had been "saying things like, `I hope I didn't do anything bad to him.'" Answer in Opp'n to Pet.'s Application for Writ of Habeas Corpus Ex. K.
Hinman represented petitioner at trial; however Donald M. Thompson, Esq. represented him on appeal.
Petitioner and his brother Christopher had been present at the Center the evening of March 30, 1994 playing Ping-Pong in the game room when Felder, Richard Colinge, a/k/a "White Rick" and several other men had come in. Colinge had played a game of Ping-Pong with Christopher and Colinge had lost whereupon he had thrown his paddle on the table. Petitioner had told Colinge to pick it up, Colinge had refused to do so and an argument had ensued between Colinge and petitioner which had resulted in Felder and Colinge being removed from the Center. Colinge and Felder had returned about five minutes later and had been intercepted in the hallway to the game room by an employee of the center. Petitioner had then ceased playing Ping-Pong and had approached Felder whereupon Felder had punched petitioner knocking him to the ground. Only two of the prosecution's witnesses, Annie Pugh and Eric Kennedy, had observed what had happened after Felder had punched and knocked down petitioner.
Pugh had testified that petitioner had arisen, shaken his head twice and stumbled three times, after which he had lifted his shirt, removed a silver object from his waistband, unfolded it and bumped into Felder — although Pugh had been unable to see petitioner's hands when he had bumped into Felder. Petitioner then returned to the game room to retrieve his jacket and when he walked out he was replacing the silver object back into his waistband. Kennedy testified that, after Felder had punched petitioner and knocked him down, petitioner had been unconscious for approximately one minute but that when he had arisen he had staggered and had swung his fist in a sideways motion at Felder's chest hitting him above the ribs — although Kennedy had been unable to see if petitioner had anything in his hand at the time — after which Felder had grabbed his chest and he and Colinge had then run out of the Center. Petitioner and Christopher had then left the Center and Christopher had been either removing from or placing into his pants a shiny object.
Felder had been discovered lying dead in a field near the Center shortly thereafter.
Petitioner is correct that the R R had erroneously stated that Kennedy had testified that it was petitioner not Christopher whom he had observed removing from or placing into his pants the shiny object.
As Lexvold had predicted, Christopher had not been available to testify at petitioner's trial, never having been taken into custody pursuant to Judge Egan's material witness warrant; accordingly, when the prosecution had rested, Hinman had informed Judge Egan that Lexvold would be called as a witness to testify to Christopher's confession. At that point Judge Egan had adjourned the trial and had conducted a hearing pursuant to People v. Settles, 46 N.Y.2d 154 (1978), outside the presence of the jury to determine whether Lexvold would be permitted to testify to Christopher's confession under the declaration against penal interest exception to the hearsay rule.
"To qualify for admission into evidence as a declaration against the maker's penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability." Id. at 167.
Four witnesses testified at the Settles hearing — viz., (1) Santrese Jones, petitioner's girlfriend (2) Naomi Allen, the mother of both petitioner and Christopher, (3) Lexvold and (4) petitioner. Santrese testified that she and Christopher had gone to Lexvold's office April 26, 1994, that she had not been present when Lexvold and Christopher talked, that she has not had any contact with Christopher since the summer of 1994 and that she does not know where he is. Allen testified that she last saw Christopher in November of 1994, that she has not had any contact with him since then and that she does not know where he is. Lexvold testified that Christopher and Santrese had come to his office April 26, 1994 and that Santrese had remained in the waiting area while Christopher went into Lexvold's office to discuss what had happened at the Center March 30, 1994. During this discussion, Christopher told Lexvold that he, not petitioner, had stabbed Felder, that he had done so to protect himself and petitioner and that the written statement he had provided to the police was untrue. Christopher indicated that he may have been willing to come forward with his confession if he were assured that he would not be charged with murder and asked Lexvold if he could obtain a "deal" for himself if he turned himself in, to which Lexvold responded in the negative. However, Lexvold did inform Christopher that he represented petitioner and did not want to see him convicted of something he did not do. Lexvold had not asked Christopher for any details about the stabbing and Christopher had not provided any. Lexvold did not ask him whether he had spoken to an attorney, did not advise him to obtain one, did not ask him whether he realized that what he was saying was against his interest and did not advise him that Lexvold could testify against him based upon such.
Santrese Jones is not related to petitioner; the commonality of their last names is merely coincidental.
See supra footnote 2.
Lexvold instead left his office and returned with investigator Tara Dumont to witness Christopher's confession; however Christopher refused to repeat such and left. Finally, petitioner testified that he had not had any contact with Christopher since July of 1994 when Christopher had last came to visit him in jail and that he did not know where he was. Petitioner testified that, although Lexvold had told him that he had had an "interesting" conversation with Christopher, he had not told him that Christopher had confessed to stabbing Felder and that Christopher had never told him that he had stabbed Felder.
At the conclusion of the hearing, Hinman argued that Lexvold should be allowed to testify to Christopher's confession both because such confession satisfied the requirements of Settles for admission under the declaration against penal interest exception to the hearsay rule and because the exclusion of Christopher's confession would deprive petitioner of his right to a fair trial based upon Chambers v. Mississippi, 410 U.S. 284, 302 (1973). After hearing the prosecutor's response — which addressed only petitioner's argument that the confession was admissible under Settles and did not mention his argument based on Chambers, Judge Egan held that Lexvold would not be allowed to testify to Christopher's confession. He stated:
"I find that, one, the declarant, Christopher Jones, is unavailable as a witness at this trial. Two, that when the statement was made, I cannot find that the declarant was fully aware that it was adverse to his penal interest. In this regard, the declarant may have thought that he had a lawyer-client privilege in speaking with the Defendant's attorney. As attorneys, we recognize that he did not have such a privilege, but for the lay person going to talk to his brother's attorney, he may very well have thought he had an attorney-client privilege and that nothing he said to his brother's attorney would be used against him. Clearly, in retrospect, the statement is adverse to his penal interest. I cannot say that he was aware of that. I cannot make that finding. Third, the third prong is that the declarant must have competent knowledge of the facts underlying the statement. It is clear that the declarant was possibly in a position to have such knowledge, and based on that, I am going to find that the third prong was met. He was at the scene of the incident, and I am really not able to say how much knowledge of the facts he had, recognizing that he made one statement indicating that he was aware of the scuffling, et cetera, denying that he had any knowledge of any stabbing, and then in effect pointing the finger at his brother at the end of the statement. The fourth and most important of the prongs is that the supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability. I find, based on the evidence before me that the statement was designed to exculpate his brother who is a loved one, someone close to him. I find that there was a presence of a strong motive to fabricate. I also find that the statement was not spontaneous, but was given, but was given with hesitancy, a period of days after the events occurred, after which he had already given a statement which he declared to be true, pointing the finger of blame strongly at his brother. The statement was not prompt.
It was not exceedingly tardy, but it certainly was not prompt. Then the statement of the Defendant (sic) pointing guilt to himself has no internal consistency and is not coherent in such a way as that we are able to evaluate it, because it is nothing more than a bald statement that his brother didn't do it and he did. There is nothing in the statement to indicate the weapon used, where the knife thrust went, how many times the victim was stabbed. There is nothing in his statement to help verify its truthfulness. And the fact that almost immediately after he found that if the finger were pointed at him, he could not be guaranteed some sort of a deal, he broke off that statement, and the fact that he broke it off before a witness could come in to hear the statement further indicates that he may have been laboring under a belief that the statement could not be used against him in court because he was making it to an attorney, to his brother's attorney.
"I do recognize that as the Defense Attorney has pointed out, that although all of the testimony at this trial has placed the Defendant in close proximity to the deceased, especially at the time of the stabbing and the incident, there was some testimony that he did reach into his — into his shirt which the Defense would have us to believe was the murder weapon. This was after the alleged, shortly very shortly after the alleged incident. The testimony has been that the Defendant went up against the deceased with his hand.
"Based on what I have said and recognizing that this is the decision within the sound discretion of the Court as set forth in People against Shortridge, New York State Court of Appeals case which reversed our own Fourth Department, and that case is at 65 N.Y.2d 309, of 1985, as a matter of discretion, based on my findings and the decision I have made, the Defense will not be allowed to use the hearsay statement of the Defendant's brother." Tr. at 733-736.
Hinman then reminded Judge Egan that he had also argued that the confession was admissible under Chambers and that Judge Egan had failed to address such in his holding and requested that he rule on such to preserve the issue for appeal. Judge Egan responded by stating "Yes, I will. I find that the Defense has not established any grounds as set forth in the Chambers case which would cause the Court to allow this evidence before the jury." Tr. at 738.
Petitioner thereafter testified in his own defense, stating he had not possessed a knife while at the Center March 30, 1994 and that he had not approached, lunged at, swung his arm at or stabbed Felder. Petitioner testified that he and Christopher are both black males, related to each other by blood, within two inches of each other in height and three years of each other in age and had been wearing almost identical clothes while at the Center the evening of March 30, 1994. Petitioner testified that he had been speaking to an employee of the Center in the hallway by the door to the game room when Felder and Colinge had returned to the Center and that such employee had stepped between them and petitioner to prevent them from entering the game room. Petitioner testified that he had seen Christopher coming towards him, after which he had been hit on the left side of his face and had fallen to the floor. Petitioner testified that the next thing he remembered was Christopher shaking him and telling him they had to leave after which he arose, retrieved his jacket from the game room, put it on and left the Center.
At the conclusion of petitioner's testimony Hinman did not renew his request that Lexvold be allowed to testify to Christopher's confession and the jury subsequently found petitioner not guilty of Second Degree Murder, but guilty of the lesser included offense of Manslaughter in the First Degree. Petitioner appealed his conviction to the Supreme Court, Appellate Division, Fourth Department, arguing both that Christopher's confession was admissible under the declaration-against-interest exception to the hearsay rule enunciated in Settles and that its exclusion violated his Fourteenth Amendment due process right to present a defense under Chambers. Answer in Opp'n to Pet.'s Application for Writ of Habeas Corpus Ex. K (Pet.'s Appellate Brief at 20). The Appellate Division affirmed petitioner's conviction, stating that
"County Court properly refused to admit into evidence a statement made by defendant's brother. The court properly determined that the declarant was not aware that his statement was against his penal interest thus that the statement was not sufficiently reliable to be admissible under that exception to the hearsay rule (see, People v. Settles, 46 N.Y.2d 154, 167; see also, People v. Shortridge, 65 N.Y.2d 309, 312)." People v. Jones, 256 A.D.2d 1172 (4th Dep't 1998).
Petitioner applied for, but was denied leave to appeal to the New York Court of Appeals. People v. Jones, 93 N.Y.2d 972 (1999). Having fully exhausted his state court remedies, petitioner commenced the present proceeding seeking a writ of habeas corpus.
Petitioner's petition for a writ of habeas corpus is governed by the AEDPA which was enacted by Congress in 1996 to curtail the power of the federal courts to grant habeas corpus relief to state prisoners. Williams v. Taylor, 529 U.S. 362, 399 (2000). Under the AEDPA,
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat.1214.
"[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 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).
At the time of petitioner's trial it was clearly established federal law, based upon Supreme Court precedent, that another's confession which bears sufficient indicia of reliability and is offered into evidence by a defendant may not be excluded through a mechanistic application of the hearsay rule without consideration of the defendant's right to present a defense under the Due Process Clause of the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). However, at the time that Hinman moved to allow Lexvold to testify to Christopher's confession — i.e., after the close of the prosecution's case but prior to petitioner's testimony, — Christopher's confession did not bear sufficient indicia of reliability and therefore Judge Egan's then decision to preclude Lexvold from testifying to such was neither contrary to nor an unreasonable application of the holding in Chambers.
Such right emanates from the Compulsory Process Clause of the Sixth Amendment, which has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Washington v. Texas, 388 U.S. 14, 17-19, (1967).
After petitioner had testified in his own defense — denying that he had stabbed Felder, stating that he and Christopher had similar physical characteristics and had been wearing almost identical clothing the evening of March 30, 1994 and that he had been unconscious from the moment Felder had punched him and knocked him down until Christopher had arisen him by shaking him — Christopher's confession bore sufficient indicia of reliability to allow its introduction; however, Hinman did not then renew his request to allow Lexvold to testify to such.
Accordingly, it is hereby ORDERED that the objections to the R R are overruled, that the R R is adopted, that the petition for a writ of habeas corpus is denied, that petitioner is granted a certificate of appealability on his first ground, that permission to appeal in forma pauperis is granted and that this case shall be closed in this Court. DATED: Buffalo, N.Y.