Breazil v. Artis
| Decision Date | 30 December 2015 |
| Docket Number | 15 Civ. 1912 (BMC) |
| Parties | TERRANCE BREAZIL, Petitioner, v. SUPERINTENDENT ARTIS, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254, vacating his conviction for second degree murder, attempted second degree murder, and criminal possession of a weapon, for which he received an aggregate sentence of fifty years to life as a second violent felony offender. This was his second conviction for these same crimes. His first conviction was vacated and a new trial ordered after a § 440 court found, and the Appellate Division affirmed, that he was illegally stopped and frisked, and thus the murder weapon seized during that stop should have been suppressed. People v. Breazil, 52 A.D.3d 523, 860 N.Y.S.2d 137 (2d Dep't), leave to app. denied, 11 N.Y.3d 830, 868 N.Y.S.2d 608 (2008) (table). Petitioner was retried without the murder weapon and again convicted; this time, his conviction was affirmed by the Appellate Division. People v. Breazil, 110 A.D.3d 913, 973 N.Y.S.2d 299 (2d Dep't), leave to app. denied, 22 N.Y.3d 1039, 981 N.Y.S.2d 373 (2013) (table). The time period between the two trials was extensive: petitioner was first convicted in November, 1996; he was again convicted at his retrial in October, 2009.
The facts will be set forth below as they relate to each of petitioner's points of error, but to summarize, the jury found that petitioner had shot two men, Wendell Porter and McKiver Kinard, multiple times in the street after getting upset that they were talking to his girlfriend, Elenora Carter. Carter was with her friend Amena Smith at the time of the shooting and Smith witnessed the shooting. Kinard died the next day from his wounds. By the time of petitioner's second trial, Porter had died from causes unrelated to the shooting.
Like his supplemental brief in the Appellate Division and his pro se motion under N.Y. C.P.L. § 440.10, the petition in this case raises many points of error, some of which overlap and some of which are compilations or contain references to others. I am reading the petition alongside petitioner's supplemental pro se brief in the Appellate Division and his § 440 motion in order to give his claims their broadest construction.1 This requires, rather than proceeding strictly in the order in which his points are presented, partial reorganization of his points into their most applicable legal categories. Petitioner's points of error are as follows:
I. Confrontation Clause Violation From the Use of Smith's Testimony at the First Trial
Smith had testified in great detail and with very specific recollection at petitioner's first trial as the prosecution's main witness. She described the events leading up to the shooting. She testified that petitioner fired six or seven shots into Porter and McKiver and then ran away. Petitioner was arrested, and Smith picked him out of lineup about two months after the shooting. At trial, she was cross-examined. She was a reluctant witness due to fear of being involved or retaliated against. She had to be arrested and handcuffed pursuant to a material witness warrant,detained, and brought to court, and after trial, the District Attorney relocated her several times (each time after petitioner or his family found out where she was) because of her expressed fear of retribution, and the District Attorney subsidized her living expenses under the District Attorney's witness relocation program.
However, Smith did not testify for the prosecution at the second trial. Instead, the prosecution was permitted to read in her transcript from the first trial, direct and cross-examination, to the jury. The facts of how this occurred are somewhat complex.
Prior to petitioner's first conviction, a pretrial hearing was held pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967), to determine whether Smith's identification of petitioner in a lineup was admissible. His motion to suppress the identification was denied. However, in 2009, after the Appellate Division affirmed the vacatur of the conviction, petitioner moved to reopen the Wade hearing. That motion was supported by an affidavit from Smith which a private investigator hired by petitioner's family had obtained. Although not completely recanting, Smith, both in that affidavit and in her testimony at the reopened Wade hearing, raised doubts about her prior testimony. She confirmed her prior identification but interjected that she "might have been mistaken" and suggested that the police had pressured her to identify petitioner in the lineup by showing her a photograph of petitioner before she saw him in the lineup. In contrast to her testimony at the first trial, Smith's testimony at the reopened Wade hearing was confused and contradictory; she equivocated and repeatedly denied recollection, and she also expressed uncertainty about some of the matters in her affidavit.
Significantly, she also admitted at the reopened Wade hearing that about five months after she had identified petitioner in the lineup (prior to the first trial), she had reported to the prosecutor that she had been threatened, and that she would refuse to testify at petitioner's (first)trial. She confirmed at the reopened Wade hearing that she had only testified at the first trial because she had been arrested pursuant to the material witness warrant obtained by the prosecutor. She further testified at the Wade hearing that after the first trial, she had heard that petitioner's brother was looking for her and she had reported this as a threat to the prosecutor.
In addition to Smith's testimony at the reopened Wade hearing, the prosecution called other witnesses, including one of the detectives involved in the arrest. To the extent Smith contradicted her prior testimony and referred to pressure to pick petitioner out of the lineup, the detective contradicted her testimony at the reopened Wade hearing.
The hearing court denied the renewed motion to suppress the lineup identification. It found the testimony of petitioner's investigator who had obtained Smith's affidavit, to the effect that he knew nothing about the case and had not suggested Smith's desired answers to his questions, "absolutely incredible." It concluded that petitioner's mother, who had also testified at the hearing and who the court similarly found incredible (and who was later caught taking video of the victim's family members inside the courtroom at petitioner's second trial), had paid the investigator to come up with a clean statement from Smith to support the motion and to conceal the fact that petitioner and his family had undertaken a successful campaign to intimidate Smith into not remembering what she had seen. It found "beyond any question" that there was a "history of witness intimidation of Ms. Smith" and that Smith was in fear when she testified at the hearing.
Although the prosecutor had prevailed at this reopened Wade hearing, it obviously left her with a problem. Smith's partial recantation, professed lack of memory, and fearful demeanor made it difficult to rely on her at the second trial. Accordingly, the prosecutor moved for what is known in New York practice as a Sirois hearing (from In the Matter of Holtzman v. Hellenbrand,92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dep't 1983)), also known as a Geraci hearing (from People v. Geraci, 85 N.Y.2d 359, 365-66, 625 N.Y.S.2d 469 (1995), which permits the use of prior statements of a witness, whether the statement has been previously confronted or not, as substantive evidence when a defendant's misconduct has caused the witness to be unavailable.
At that hearing, which occurred right before the jury was empaneled for trial, Smith refused to appear; the judge signed a material witness order for her arrest again and detectives brought her to court, reporting that she was "screaming" and upset. She essentially refused to cooperate at the hearing, declining to answer some questions and professing lack of recollection and uncertainty as to others that she had answered at the first trial. She stated expressly that she did not want to remember what had happened. When the judge asked her if anyone had intimidated her, she told the judge that he was "crazy" if he thought she was going to name names. "I'm not indicating somebody else name in this that told, told me something, for my own good." (sic).
Nevertheless, she testified generally about quite a bit of intimidation when pressed. She acknowledged that she had visited petitioner in jail to find out if he was angry with her for not recanting, and that she deliberately lied to the prosecutor to conceal that visit. She had decided to make the visit after someone had told her that petitioner wanted her to come to court and say the police had pressured her into her original testimony. She testified to efforts that petitioner's mother had made to contact her. At the end of her testimony, the judge instructed her again to identify the people who had threatened her, and she again refused.
Additional evidence of intimidation in the Sirois hearing came from the prosecutor in the first trial, ADA Mortenson. Mortenson testified to several fearful exchanges Smith had initiated with her, reporting threats of "a bullet in her head;" to "torch" her (at the Sirois hearing, Smithdenied that she had used the term "torch" to Mortenson), and similar acts of intimidation. Mortenson took the threats seriously enough that not only did she keep detectives assigned to Smith during the trial, but after the trial, as noted above, she relocated Smith and provided funds to subsidize Smith's living expenses. After the vacatur of his conviction and while the parties were preparing for a second trial, Smith was contacted by a man she would identify to Mortenson only as "Squirrel," who told her that she had to come to court and say the police had pressured her...
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