Bohan v. Kuhlmann

• Decision Date: 09 August 2002
• Docket Number: No. 00 CIV.4225 VM.,00 CIV.4225 VM.
• Citation: 234 F.Supp.2d 231
• Parties: Robert BOHAN, Petitioner, v. Robert KUHLMANN, Respondent.
• Court: U.S. District Court — Southern District of New York

234 F.Supp.2d 231

Robert BOHAN, Petitioner, v. Robert KUHLMANN, Respondent.

No. 00 CIV.4225 VM.

United States District Court, S.D. New York.

August 9, 2002.

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Joel A. Brenner, East Northport, NY, for Petitioner.

Sylvia Wertheimer, Robert M. Morgenthau, District Attorney New York County, New York City, for Respondent.

DECISION AND ORDER

MARRERO, District Judge.

Petitioner Robert Bohan ("Bohan") was convicted on July 13, 1995, in New York State Supreme Court, New York County (the "Trial Court") for murder in the second degree. On June 7, 2000, Bohan filed a petition for a writ of habeas corpus in this Court, pursuant to 28 U.S.C. § 2254 ("§ 2254"), asserting, inter alia, that: (1) there was insufficient evidence to sustain his conviction; (2) the Trial Court's preclusion of testimony from an alibi witness violated his rights under the Compulsory Process Clause of the Sixth Amendment; (3) he was deprived of his right to be present at all material stages of the trial; (4) he was denied a fair trial due to prosecutorial misconduct; (5) he was denied effective assistance of counsel at trial; and (6) the Trial Court violated his rights under the Fifth and Fourteenth Amendments by imposing the maximum sentence for his conviction. The Court referred the case to Magistrate Judge James C. Francis IV and on December 28, 2001, he issued a Report and Recommendation (the "Report") recommending that the writ be granted because Bohan's trial counsel was ineffective and because the preclusion of Bohan's alibi witness violated his Sixth Amendment right to present a defense. The Report is attached and incorporated hereto. For the reasons discussed below, the Court fully adopts the Report and Recommendation of Magistrate Judge Francis and grants Bohan's writ of habeas corpus.

I. BACKGROUND

On January 12, 1993, at approximately 10:25 p.m., Joseph Alvarez ("Alvarez") was selling crack cocaine under a streetlight in front of 448 West 167th Street in Manhattan when a man wearing a hood shot him twice in the chest and back, killing him. Bohan was indicted for murder in connection with this incident. At trial, the prosecution argued that Bohan committed the murder on account of a dispute that Bohan and his brother, Nicholas, had with Alvarez and an associate of Alvarez named Junior. The dispute had arisen six months earlier during an incident in which Nicholas Bohan punched Junior and Junior pulled out a gun and fired in response. (Tr. at 66.)¹ A prosecution witness named Jamal Williams ("Williams"), who had been a long-time friend of Bohan's, testified that he had witnessed the dispute. After the incident, Williams attended a number of meetings in a nearby McDonald's restaurant with Bohan and Alvarez. According to Williams, in one of the meetings, Bohan threatened to "get" both Williams and Alvarez if they did not help him find Junior. (Tr. at 71.)²

Williams and another prosecution witness, Michael Jenkins, further testified that they saw Bohan murder Alvarez on January 12, 1993. Williams said that he was selling crack cocaine with Alvarez and another associate named Manny Martinez ("Martinez") under a street light when Bohan approached, drew a gun, and shot Alvarez. (Tr. at 74.) Williams stated that, before the shooting, he looked straight at Bohan's face from a distance of approximately three feet. (Tr. at 83.) However, Williams also testified that he was with Martinez in the hallway of a nearby building just before Alvarez was shot. (Tr. at 84, 123.) The day after the shooting, Williams identified Bohan in a police lineup as the shooter (Tr. at 77), but during the trial Williams pointed to Bohan's brother when asked to identify the assailant. (Tr. at 66.) Williams also stated that he was scared to testify because he believed that Bohan had "people on the outside." (Tr. at 113.)

Jenkins testified that on the night of the murder, Bohan approached Alvarez, coming within fifteen to twenty feet of Jenkins, and fired three shots. (Tr. at 187.) Unlike Williams, Jenkins identified Bohan in the courtroom as the person who shot Alvarez. Shawn Criss ("Criss"), the Government's third eyewitness from the murder scene, testified that he was six to seven feet away from Alvarez when the shooting occurred. According to Jenkins, it was dark and he "didn't really look" at the shooter. (Tr. at 139.) The only description he could provide was that the assailant was light-skinned, "Spanish looking" and wearing a sweatshirt with his hood up. (Tr. at 141-42.)

In defense, Bohan called Carmen Rodriguez ("C.Rodriguez"), who was incarcerated at Rikers Island ("Rikers"), to testify. Because C. Rodriguez had tested positive for tuberculosis, the Trial Court took her testimony via video from a room at Rikers and presented a recording of the testimony to the jury. (Tr. 217, 314.) Bohan was present during her testimony but seated in an adjacent room that contained a glass partition through which he could see the interview.

Prior to the trial, Bohan's attorney, Earl Rawlins ("Rawlins") had asked the Government to interview C. Rodriguez, with the hope that she would disclose information that would persuade the Government to dismiss the charges against Bohan. Assistant District Attorney Stuart Silberg ("Silberg"), did meet with C. Rodriguez at that time and she told him that Bohan did not shoot Alvarez. (Tr. at 25.) However, several days later C. Rodriguez met again with Silberg and Police Detective Michael Vasquez ("Detective Vasquez") and told them that she had lied to Silberg because Bohan's father had promised to take care of her if she testified that Bohan was not the shooter. (Tr. at 432-33, 435-36.) C. Rodriguez then also stated that on the night of the murder, she was talking to Alvarez when Bohan approached and shot him. During her meeting with Silberg and Detective Vasquez, C. Rodriguez also signed a statement indicating that Bohan was the shooter. (Tr. at 433-34.) However, in her trial testimony, C. Rodriguez stated that she neither signed the statement nor told anyone that Bohan had shot Alvarez. (Tr. at 324-25.)

After the Government presented its case-in-chief, Rawlins informed the Trial Court and the prosecution that he intended to call three alibi witnesses: Bohan's grandmother, Julia Feci ("Feci"), and two of Bohan's friends, Roberto Cruz ("Cruz") and Bernardo Rodriguez ("B.Rodriguez"). Although Silberg had requested, long before the trial commenced, that Rawlins provide notice of any alibi witnesses he intended to call, Rawlins had failed to do so, as required by section 250.20 of the New York Criminal Procedure Law ("CPL § 250.20").³ Silberg consented to both Feci and Cruz testifying at trial because Feci had appeared before the grand jury and had mentioned Cruz's name, thus alerting the prosecution that these two people might be called by the defense. In contrast, Silberg claimed that he had never known about B. Rodriguez and objected to his testifying at trial. (Tr. at 222-23, 302-03.)

Feci testified that, on the night of the murder, Bohan and several of his friends, including Cruz, were in her apartment at 640 West 171st Street. She was upset with them because they had damaged her furniture. At one point, she testified that Cruz said goodnight at 10:15 p.m. (Tr. at 232). According to Feci, soon thereafter, Bohan entered her room, apologized for breaking a bed, and watched a television program with her until 11 p.m. (Tr. at 232-33, 246.) Later in her testimony, she said that Cruz left at 10:30 (Tr. at 233, 243) and that Bohan came to her room at 10:45 p.m. and stayed until 11 p.m. (Tr. at 244-47.)

Cruz testified that, on the night of the murder, he was in the apartment with Bohan, Bohan's brother Nicholas, and two other friends named Angel Zapata ("Zapata") and Jason Pena ("Pena"). According to Cruz, soon after 10 p.m., Feci threw him and the other visitors out of her apartment because they had broken a bed. He testified that he said goodnight to Feci at 10:05 p.m. and left ten minutes later. He arrived at his apartment, which was across the street, at 10:30. He later testified that he was unsure of when he left Feci's apartment but he was sure that he reached his apartment by 10:30. (Tr. at 265, 269-70.)

After Cruz testified, Rawlins indicated that he intended to call B. Rodriguez. The Trial Court held a hearing outside the presence of the jury, pursuant to People v. Dawson, 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771 (1980), to allow Silberg to inquire into the reason for B. Rodriguez's failure to inform law enforcement authorities that Bohan had not committed the murder. B. Rodriguez testified that on the night of the murder, around 10:05 or 10:10 p.m., he was returning from work when he saw Cruz, Zapata, Pena and Albert Montilla ("Montilla") standing on the street in front of 640 West 171st Street. (Tr. at 283.) When he approached them, they explained that Feci had thrown them out of her apartment. At that point, which was around 10:10 or 10:15 p.m., B. Rodriguez looked up at the window of Feci's apartment and saw Bohan standing and talking to Feci. (Tr. at 285). According to B. Rodriguez, Bohan seemed upset. (Id.) He remained at that location on the street until 11:10 or 11:15 p.m. (Tr. at 284.) B. Rodriguez said he learned two days later that Bohan had been charged with killing someone. (Tr. at 287.) He testified that he did not go to the police to report what he had witnessed because he thought that Bohan had been wrongly accused and that Bohan "was going to come home in a couple of days." (Tr. at 288.)

Approximately one month after the murder, B. Rodriguez learned that the murder victim was from West 167th Street. (Tr. at 291.) He could not recall if anyone told him the victim's name. B. Rodriguez knew that Bohan had been arrested for the murder and had not come home yet. (Id.) His family told him to talk to Bohan's attorney. One...