Leka v. Portuondo

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-2002
• Citation: 257 F.3d 89
• Parties: (2nd Cir. 2001) SAMI LEKA, Petitioner-Appellant, v. LEONARD A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 89

257 F.3d 89 (2nd Cir. 2001)

SAMI LEKA, Petitioner-Appellant, v. LEONARD A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent-Appellee.

Docket No. 00-2002.

August Term, 2000.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: June 21, 2001.

Decided: July 12, 2001.

Appeal from a judgment in the United States District Court for the Eastern District of New York (Trager, J.), denying an application, initiated pro se, for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The motion challenges a conviction in the Supreme Court of the State of New York, Kings County, on one count of murder and two counts of criminal possession of a weapon.

Reversed and Remanded.

MICHAEL S. SOMMER, McDermott, Will & Emery, New York, NY (Robert E. Rice and Tomasita L. Harrison on the brief) for petitioner-appellant.

MICHAEL GORE, Assistant District Attorney, Kings County, New York (Charles J. Hynes District Attorney, and Leonard Joblove and Victor Barall, Assistant District Attorneys, on the brief) for respondent-appellee.

Before: JACOBS, PARKER, and SOTOMAYOR, Circuit Judges.

DENNIS JACOBS, Circuit Judge:

Following a 1990 jury trial in the Supreme Court of the State of New York, Kings County, petitioner-appellant Sami Leka was convicted on one count of second degree murder and two counts of criminal possession of a weapon, offenses arising out of the shooting of Rahman Ferati on a Brooklyn street.¹ Leka and the victim were on antagonistic sides of an embittered child custody dispute. The State's case consisted chiefly of the eyewitness testimony of a man and a woman who were passing by on the sidewalk during the shooting. Leka's motion for a writ of habeas corpus, filed in the United States District Court for the Eastern District of New York (Trager, J.), seeks relief on a variety of grounds, including the claim that the prosecution failed to comply with its duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose three other eyewitnesses in time sufficient to allow the defense to use their testimony at trial.

We conclude (i) that the eyewitness evidence of Wilfredo Garcia, an off-duty police officer who observed the incident from the second-floor window of his apartment, was favorable to the defense because it would have been inconsistent in important respects with the testimony of the two eyewitnesses at trial; (ii) that the prosecution failed to disclose Garcia's testimony, and for a critical time actively suppressed it; and (iii) that the potency of such testimony by a (by then former) policeman on behalf of the defense would have been material, particularly in a case in which the jury was initially deadlocked. Accordingly, we reverse the district court's denial of relief and remand for the entry of judgment conditionally granting a writ of habeas corpus and ordering Leka's release unless the State provides him a new trial within 90 days.

BACKGROUND

Leka and the victim were part of an extended family, linked by blood and marriage, and riven by a custody dispute over the two children of Rahman Ferati's deceased daughter. Ferati, who had in effect kidnapped the children, was killed by the passenger in a car that pulled up to him in the street. The prosecution's theory of the case was that Leka was the gunman, and that the driver was the children's uncle, Zeni Cira. The defense theory was that the gunman was the children's father, Luftim Cira, who testified at trial that he shot Ferati (in self-defense), but whose testimony was evidently not credited by the jury.

The following facts are the only facts that bear upon the decisive aspects of this appeal.

A. The Witnesses at Trial

Elfren Torres and his fiancee, Carolyn Modica, were walking down Ocean Avenue in Brooklyn at about 6 p.m. on February 12, 1988, when Modica noticed a "light-colored" or white car double-parked in front of a psychoanalyst's office, and observed that the passenger (whom she later identified as Leka) was staring at her and joking with the driver (amused, she assumed, because her face was bandaged following surgery). Trial transcript ("Tr.") at 377, 379-81. She and Torres walked past the car, and continued "at a slow pace" for approximately "five car lengths" when they heard shooting. The pair dived behind a parked car. Tr. at 463, 383.

Modica took cover throughout the shooting; but Torres, over his fiancee's sensible objection, lifted his head twice to see what was going on. On his first look, he saw an extended arm shooting a gun from the front passenger window of a light-colored car. On his second look, he saw a man--whom he later identified as Leka--standing in the street, shooting downward. When the shooting ended, Torres and Modica emerged from cover; the light-colored car was gone and the victim was bleeding in the street.

B. The Witnesses Cited in the Brady Claim

Leka's Brady claim cites three other eyewitnesses known to the police. Before discussing the circumstances of disclosure or non-disclosure by the prosecution, it is useful to set out the witnesses' observations, and compare those observations to the trial testimony of Torres and Modica.

Anthony Chiusano, the driver of a Command bus on the Ocean Avenue route, noticed a light-colored car stopped beside his bus at a light. When the light changed, he noticed that the car out-accelerated his bus and double-parked, and that gun-fire broke out right after, from the car's rear passenger-side window. Preoccupied as he was with ordering his passengers to duck, and with negotiating his bus around the scene of the gunfire and out of harm's way, he saw nothing else.

Joseph Gonzalez, a postman, was at home watching television when he heard gunfire. Gonzalez went to his third-floor window overlooking Ocean Avenue and "saw a man standing across the street falling backwards firing a gun [at a white car]." Jose Gonzalez Aff. of May 24, 1991. He watched the car speed from the scene, around a bus.

Officer Wilfredo Garcia of the New York City Police Department was in his second-floor apartment, looking out the window for a friend who was expected momentarily. He heard gunfire, looked in that direction, and saw a light-colored car pull up in front of a man in the street. His account, which is critical to the appeal, is as follows:

I saw muzzle flashes coming from the passenger side of the vehicle. Simultaneously, I observed a [C]ommand bus on the southbound lane go around this vehicle by proceeding in the oncoming (northbound) traffic lane. Since my friend was due at my house momentarily, it flashed through my mind [that] he may be involved.

I immediately ran to my bedroom and retrieved my off-duty weapon. As I was leaving my bedroom, I heard other shots and I looked out of my bedroom window and saw additional muzzle flashes coming from the passenger side of the white vehicle.

I then ran out of my apartment and as I was running down the steps of my building, I heard additional rapid shots. As I got to the main floor of the apartment building, which is one flight down, the shots had stopped. As I exited to the street, the vehicle had already fled the scene. All of this transpired in an amazingly short period of time, which I would estimate to be between 15 and 20 seconds.

I observed the deceased lying face down across the street directly in front of his vehicle. As I approached him, I noticed a black revolver laying on the street in the immediate vicinity of his body.

Wilfredo Garcia Aff. of Jan. 15, 1991 at 1-2.

C. The Accounts Compared

Leka argues that the accounts of Chiusano, Gonzalez, and Garcia differ in significant ways from the testimony of Torres and Modica.

1. According to Modica, Leka was in a car that was double-parked at the scene long enough for Modica to fixate on him, watch him joshing with the driver, and "slow[ly]" walk with Torres five car lengths before gunfire broke out. According to Chiusano and Garcia, however, the shooting erupted as soon as the shooter's car pulled over from traffic. A jury could deduce from the testimony of Chiusano or Garcia that the man Modica identified as Leka was in one car and that the shooter was in another. Since the only vehicle characteristic cited by everyone is its light hue, that explanation is perfectly plausible, as Modica subsequently conceded in an affidavit solicited by defense counsel in connection with Leka's direct appeal. See Carolyn Modica Aff. of Jan. 3, 1991.

2. According to Torres, Leka was the man he saw standing in the street and shooting downward. But neither Chiusano nor Garcia saw anyone get out of the light-colored car. More to the point, the physical evidence and the testimony of Chiusano, Gonzalez, and Garcia strongly support the theory that there was indeed a man standing in the street shooting, but that that man was the victim, Ferati. Garcia recovered a black revolver from the immediate vicinity of Ferati's body. And Ferati's responsive fire would have been aimed "downward," toward the seated shooter in the light-colored car. After trial, Torres was shown a picture of Ferati and conceded that Ferati was the man in the street he saw firing the gun. See Elfren Torres Aff. of Apr. 10, 1998 ("Torres Aff.").

D. The Disclosures and Non-Disclosures, and the Trial

Leka was arrested on March 8, 1988 and charged with the murder. During plea negotiations, the prosecution told Leka and his counsel that a police officer had witnessed the shooting and could identify Leka as the shooter. See Joseph Benfante Aff. of June 7, 1991 at ¶16 (affidavit of Leka's trial counsel). It is conceded that this was false. In any event, no plea agreement was reached, and trial commenced on February 26, 1990.

Twenty-two months before trial, Leka's counsel requested that the prosecution turn over (inter alia) all Brady material.

In the week before trial, the prosecution turned over to the defense a police report on Chiusano and the grand jury testimony of Gonzalez. The police report,...