Opinion
00 CV 2919 (SJ).
August 9, 2004
SHAWN S. SULEMAN, #98-A-3839, Woodbourne Correctional Facility, Woodbourne, New York, THE LEGAL AID SOCIETY, Federal Defender Division, Brooklyn, New York, By: Justine A. Harris, Esq., Peter Kirschheimer, Esq., Attorneys for Petitioner.
RICHARD A. BROWN, ESQ., Queens County District Attorney, Kew Gardens, New York, By: Sharon Y. Brodt, Esq., Patricia M. Theodorou, Esq., Assistant District Attorneys, Attorneys for Respondent.
ELLIOT SPITZER, ESQ., Attorney General of the State of New York, New York, New York, By: Lee Alan Adlerstein, Esq., Assistant Attorney General, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Shawn S. Suleman ("Petitioner"), appearing pro se, brought this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. This Court referred the petition to Magistrate Judge A. Simon Chrein for a Report and Recommendation ("Report"). Magistrate Judge Chrein issued a preliminary Report on October 22, 2002 ("2002 Report"), recommending that Petitioner's application be denied in part, and reserving judgment on two of Petitioner's claims. Subsequently, Magistrate Judge Chrein appointed counsel for Petitioner, conducted a Wade hearing, and solicited additional briefs from the parties. Following theWade hearing, the Magistrate issued a second Report on November 10, 2003 ("2003 Report"), recommending that Petitioner's remaining claims be denied. Both parties filed Objections to the 2003 Report. Neither Petitioner nor Respondent has offered any challenges to the Reports which would persuade this Court to reject Magistrate Judge Chrein's recommendations. Accordingly, the two Reports are hereby adopted in their entirety.
I. Standard of review for Report and Recommendation
A district court judge may designate a magistrate judge to hear and determine any pre-trial matter pending before the district court. See 28 U.S.C § 636 (b)(1). A district judge may also designate that magistrate to conduct hearings and submit to the district court proposed findings of fact and recommendations as to the disposition of the motion. Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See Id. The district court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985).
II. Claims as to which no Objections were filed
In his initial Report of October 22, 2002, Magistrate Judge Chrein recommended that Petitioner's claims regarding the disclosure of the ballistics report, the impartiality of the jury, and the prosecutor's improper comments during summation should all be denied on their merits. No objections were raised to these findings. Accordingly, this Court adopts Magistrate Judge Chrein's recommendations, and these claims are denied.
III. Testimony regarding pre-trial identification
In the 2002 Report, Magistrate Judge Chrein considered the merits of Petitioner's claim regarding Police Officer Murphy's ("Murphy") testimony regarding his pre-trial identification of the defendant, and found that Petitioner was entitled to notice of the testimony under New York Criminal Procedure Law § 710.30 and a Wade hearing to determine whether the identification was unnecessarily suggestive. (2002 Report at 26.)
Magistrate Judge Chrein also considered Petitioner's claim that the trial court's exclusion of evidence regarding the police radio transmission made prior to Murphy's identification violated Petitioner's right to Confrontation, and found that the exclusion was in error. (2002 Report at 31.) However, Magistrate Judge Chrein left open the question of whether the error was harmless. (2002 Report at 33.)
Over Respondent's objections, the Magistrate conducted a Wade hearing on May 6, 2003, at which counsel for Petitioner and Respondent were permitted to examine Murphy regarding the details of his identification of Petitioner on the night of his arrest. Following the hearing, both parties submitted briefs in support of their positions. On November 10, 2003, the Magistrate issued his second Report and found that "Murphy's pretrial identification of petitioner was reliable as there was not a substantial risk of misidentification." (2003 Report at 12.) In light of this finding, Judge Chrein found that the trial court's error in excluding the evidence of the radio transmission was harmless. (2003 Report at 16.)
IV. Respondent's Objections
Although Magistrate Judge Chrein recommends denying the Petition, as requested by Respondent, Respondent objects to several of Judge Chrein's intermediate findings. First, Respondent objects to the Magistrate's initial finding that aWade hearing was necessary because the "show-up" identification of Petitioner by Murphy was suggestive. (Resp't's Obj. at 1.) Having carefully reviewed Murphy's testimony, Magistrate Judge Chrein's analysis, and Respondent's objections, this Court agrees with the Magistrate that Murphy's identification of petitioner was not confirmatory under the inquiry used in People v. Wharton, 74 N.Y.2d 921, 922 (N.Y. 1989) and People v. Morales, 37 N.Y.2d 262, 272 (N.Y. 1975). Accordingly, this Court agrees with Judge Chrein that the identification was potentially suggestive, and that a hearing was necessary to determine if the suggestiveness was outweighed by sufficient indicia of reliability.
It appears that the state court did in fact hold a pre-trial hearing, on July 8, 1997, in which Murphy testified as to some of the details of his identification of Petitioner. However, there appears to have been no argument on the reliability or admissibility of this testimony and identification, and no determination by the trial judge. Respondent now contends that this hearing put Defendant on actual notice, prior to trial, that Officer Murphy could testify as to his identification. (Resp't's Obj. at 3.) Nevertheless, this Court adopts Judge Chrein's finding that the State failed to comply with NY CPL § 710.30, and that, as a result, the Defense did not have an adequate opportunity to challenge the reliability of Murphy's identification.
Respondent also objects to the Magistrate's analysis of the harmless error inquiry in determining the impact of the trial court's error in excluding evidence about the radio transmission. (Resp't's Obj. at 4.) First, Respondent reiterates his objection to Judge Chrein's finding that the ruling was in error, on the ground that the radio transmission was irrelevant since the identification was "confirmatory." Because this Court agrees with the Magistrate that Officer Murphy's identification was not confirmatory, it also adopts the Magistrate's finding that it was error to exclude evidence that the Defense could have used to challenge the credibility and reliability of Murphy's identification. (See 2002 Report at 30.)
Second, Respondent argues that any error in precluding the evidence was not egregious enough to rise to the level of a constitutional violation, because the contents of the transmission, "We have the guy," were rendered moot once Officer Murphy observed Petitioner in custody. (Resp't's Obj. at 5.) That's not the point. As Magistrate Judge Chrein explained, the statement was not being offered for the truth of the matter asserted. Petitioner is not challenging Murphy's knowledge that Petitioner was in custody or questioning when and how he discovered that. Instead, Petitioner wanted to introduce the statement in order to question the credibility of the identification testimony. Even if the identification was sufficiently reliable to be admissible, as a legal matter for the judge to decide, the transmission could have been considered by the jury in evaluating the weight of Murphy's testimony by giving insight into Murphy's state of mind at the time he approached the scene of the arrest. Had the evidence been admitted, the Defense could have argued to the jury, as Petitioner argues now (see Pet'r's Obj. at 3), that Murphy left the scene where he first saw Petitioner and walked over to make his "show up" identification with the thought in his mind that the other officers got " the guy." (Emphasis added.) Since there is no evidence that the arresting officers knew at the time of the arrest that Murphy had seen Petitioner or been involved in the incident, there is no reason to believe that they were indicating to him, through the transmission, that they had apprehended the guy whom Officer Murphy had seen. Yet that construction could easily have arisen in Murphy's mind, after his participation in an incident involving only one individual. Indeed, Murphy later testified that he did assume that "the guy" referred to by the other officers was the same individual he'd seen in the driveway. (Transcript of Wade Hearing ("Wade Tr.") at 63.) The evidence thus spoke to Murphy's state of mind as he approached the scene of the arrest, and was not mooted by his subsequent discovery that the individual in custody was the same individual whom he had observed with the gun previously.
Respondent's final objection to Magistrate Judge Chrein's finding involves the harmless error standard which he applied. Respondent argues that the Magistrate should have limited his harmlessness inquiry to whether the state court's harmless error analysis was contrary to the United States Supreme Court's standard for harmlessness on collateral review, as clarified inMitchell v. Esparza, ___ U.S. ___, 124 S.Ct. 7, 10-11 (2003). Instead, the Magistrate applied the harmless error standard articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993). Since there is no indication that the state court engaged in harmless error analysis at all, this Court finds that there was no reason to apply Mitchell instead of Brecht. At any rate, the Magistrate found, even under the somewhat more flexible standard articulated in Brecht, that any error was harmless.
V. Petitioner's Objections
Petitioner objects to each of the factual findings and legal conclusions that formed the basis of Magistrate Judge Chrein's recommendation that the Petition be denied. (Pet'r's Obj. at 1.) While it is not clear if Petitioner is also objecting to the Magistrate's findings in the 2002 Report, he only raises specific objections to the claims considered in the 2003 Report. Accordingly, this Court considers only the objections to the two claims that were held open until after the Wade hearing.
First, Petitioner challenges Magistrate Judge Chrein's finding that "there were sufficient indicia of reliability to `outweight the corrupting effect of the challenged identification itself.'" (Id. at 3, quoting 2003 Report at 11.) Petitioner challenges Judge Chrein's factual findings regarding these indicia, including the lighting and the length of observation. Judge Chrein made a distinction between the "very dark" back of the driveway and the "well lit" area where the suspect stood. (2003 Report at 9, quoting Wade Tr. at 24, 41-42, 73.) Having reviewed Murphy's testimony regarding the available light and his own conclusion that "I got a good look at him when he looked right up at me" and "I'd seen him clearly" (Wade Tr. at 45), this Court adopts Magistrate Judge Chrein's conclusion that Murphy had sufficient opportunity to identify Petitioner. Although the Magistrate did not comment on the very short period of observation, he did find that Murphy was in a good location for observation, at a distance of 15-30 feet, and at an elevated position. (2003 Report at 8.)
Petitioner also takes issue with Magistrate Judge Chrein's analysis of Murphy's heightened attention, the short time between his observation and identification of Petitioner, and his certainty of identification. The Magistrate found that the officer's attention was heightened by the suspenseful circumstances of the chase: he took cover in a location where he expected to see the suspects, he knew that one of them had a gun, and he heard a fence rattle, alerting him to the arrival of the suspect. (2003 Report at 10, 11.) Furthermore, Murphy testified that the instant of frontal observation stuck in his mind because it was the closest he had come to pulling the trigger of his own gun. (Wade Tr. at 46.) Magistrate Judge Chrein suggested that "Murphy's attention must have been further peaked when petitioner began to draw his gun." (2003 Report at 10.). Petitioner argues that these circumstances, rather than affirm the reliability of the observation, instead cut the other way: "the fact that Officer Murphy was afraid for his own safety undermined his ability to identify the individual he had seen." (Pet'r's Obj. at 5.) Petitioner points to other details that Murphy did not remember at the time of the hearing: the large tattoos on Petitioner's arms or the clothing he was wearing. This Court does not find this lack of memory to be either surprising or fatal to accepting his on-scene identification. By the time of trial, Murphy was unable to make a courtroom identification of Petitioner's face, let alone give any other details of his appearance on the night of the crime. Thus, his lack of memory at the Wade hearing, now nearly seven years after the events in question, is not dispositive of his ability to recognize the same individual appearing in custody just minutes after appearing weilding a gun in a driveway. This objection does not overcome Judge Chrein's well-reasoned analysis of the testimony and its credibility.
Petitioner also objects that Murphy's certainty of identification and the short period of time between the incident in the driveway and the on-scene identification following Petitioner's arrest are not relevant to the reliability of the identification. Rather, Petitioner argues that they more likely underscore the suggestibility of the identification. (Pet'r's Obj. at 5.) In the intervening time, Murphy had heard the radio transmission which made him think that the other officers had arrested the individual whom he had seen in the driveway. Thus, Petitioner argues, before he even reached the scene of the arrest, he already believed that the individual in custody was the same individual he had faced with the gun. (Id. at 6.) Although it is possible for an eyewitness to be mistaken under such circumstances, this Court agrees with the Magistrate that there was not a substantial risk of misidentification. Accordingly, the Court adopts Magistrate Judge Chrein's finding that Murphy's pretrial identification of petitioner was sufficiently reliable to properly go before the jury for a credibility determination.
Since this Court adopts Magistrate Judge Chrein's finding that there was no error in admitting Murphy's identification testimony, it need not reach Petitioner's additional objection that any error was not harmless.
Petitioner also challenges Magistrate Judge Chrein's conclusion that the trial court's error in denying Petitioner the right to cross-examine Murphy on the radio transmission was harmless. In his initial Report, Judge Chrein found that the trial court erred in excluding the evidence of the radio transmission. (2002 Report at 31, 32.) At that time, the Magistrate indicated that he would hold the error harmless if he found, following the Wade hearing, that the identification itself was reliable and admissible. (2002 Report at 33.) After conducting the Wade hearing, Magistrate Judge Chrein determined that Murphy's post-arrest identification was sufficiently reliable, was not constitutionally tainted, and thus was properly put before the jury. Nonetheless, Judge Chrein applied harmless error analysis and concluded that the exclusion of the evidence did not have a "substantial and injurious effect or influence in determining the jury's verdict." (2003 Report at 16.)
Petitioner contends that the error did cause prejudice to Petitioner because had the jury known Murphy's state of mind following the radio transmission, it might have viewed his certainty of identification in a different light. (Pet'r's Obj. at 12.) This Court rejects Petitioner's speculation on this point. Even if the jury were to give less credibility to Murphy's certainty as a result of hearing about the transmission, the remainder of the prosecution's case was strong. The testimony of Officers Aquaviva and Santana, alone, was quite damaging to Petitioner. As the Magistrate found, "the fact remains that the same suspect ran from Officers Aquaviva and Santana towards Murphy, dropped a gun and then ran back toward the officers." (2003 Report at 14 n. 10.) The Magistrate further concluded that "[g]iven these circumstances, only petitioner could have been the gunman." (Id. at 16.) Accordingly, this Court finds that hearing evidence that Officer Murphy received a radio transmission that said "we got the guy" before he made his post-arrest identification was unlikely to have changed the jury's verdict. The Court rejects Petitioner's objection to this finding and hereby adopts Magistrate Judge Chrein's finding that the exclusion of this evidence was harmless error.
CONCLUSION
The Court has reviewed Magistrate Judge Chrein's recommendations, Petitioner's and Respondent's objections, and the relevant portions of the record. The Court finds Magistrate Judge Chrein's analysis of the merits of Petitioner's claims to be thorough and without error. The two Reports are adopted in their entirety and the Petition is denied.
The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. See Miller-El v. Cockrell 537 U.S. 322, 336 (2003) (reiterating the standard for issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)). The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith.
SO ORDERED.