Carr v. Fischer

Decision Date09 September 2003
Docket NumberNo. 01-CV-6878.,01-CV-6878.
PartiesJamie CARR, Petitioner, v. Brian FISCHER, Respondent.
CourtU.S. District Court — Eastern District of New York

Jamie Carr, pro se.

Merri Turk Lasky, for defendant.


GERSHON, District Judge.

The unopposed report and recommendation of the Honorable Cheryl L. Pollak, Magistrate Judge, dated August 6, 2003, which recommends that this petition for a writ of habeas corpus be denied is adopted. Judge Pollak found that the claims were unexhausted but, wisely, given the closeness of the issue of exhaustion as to at least some of the claims, went on to consider both procedural bar and the merits of each claim. Her analysis of these issues is comprehensive and sound, and it is adopted by the court.

The petition for a writ of habeas corpus is denied. As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.



POLLACK, United States Magistrate Judge.

On March 3, 1998, petitioner Jamie Carr was convicted and sentenced to an indeterminate prison term of from twelve and one-half to twenty-five years for manslaughter and a concurrent term of one year for possession of a weapon. On October 16, 2001, petitioner, proceeding pro se, filed a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging three grounds: (1) the trial court erred in failing to give a curative instruction or strike from the record certain testimony elicited by the State on cross-examination of petitioner, which was the subject of an objection by defense counsel that was sustained by the court; (2) the evidence presented was legally insufficient to sustain the verdict; and (3) petitioner was deprived of a fair trial and due process when the trial court admitted into evidence two 911 tapes which served to improperly bolster the State's evidence.

By Order dated March 6, 2003, the petition was referred to the undersigned to prepare a Report and Recommendation.


On August 13, 1996, in the early morning, petitioner Jamie Carr was ejected from O'Hanlon's Bar after becoming loud and belligerent. (Lasky Aff. ¶ 4).1 Francis White, another patron of the Bar, left the Bar a few minutes after petitioner. (Id.) The State alleged that petitioner attacked White with a knife, stabbing him twelve times and causing his death. (Id.)

Petitioner was charged with two counts of Murder in the Second Degree, in violation of New York Penal Law § 125.25[1][2], and Criminal Possession of a Weapon in the Fourth Degree, in violation of New York Penal Law § 265.01[2]. (Id. ¶ 5). Following a trial before the Honorable Seymour Katz, Justice of the Supreme Court, Queens County, the jury rendered a verdict convicting petitioner of the lesser included offense of Manslaughter in the First Degree, in violation of New York Penal Law § 125.20[1]. (Id. ¶ 6). He was also convicted of Criminal Possession of a Weapon in the Fourth Degree, in violation of New York Penal Law § 265.01[2]. (Id.)

Petitioner was sentenced on March 3, 1998 to twelve and one-half to twenty-five years for the manslaughter charge and a concurrent one year term for the weapons charge. (Id.)

On that same day, March 3, 1998, petitioner filed a Notice of Appeal to the Appellate Division, Second Department, raising four claims of error: (1) he was denied due process by the improper admission into evidence of two 911 tapes; (2) the trial court committed error when it allowed the State to elicit testimony from petitioner that he had checked into a motel following the stabbing and in failing to strike the question and answer or, in the alternative, give a curative instruction to the jury; (3) the evidence presented at trial was insufficient to prove guilt beyond a reasonable doubt and the verdict was against the weight of the evidence; and (4) the sentence was harsh and excessive. (Id. ¶¶ 7-8).

On November 6, 2000, the Appellate Division affirmed the judgment of conviction. People v. Carr, 277 A.D.2d 246, 716 N.Y.S.2d 59 (2d Dep't 2000). With respect to the first claim of error, the appellate court held that the first 911 tape was properly admitted under the present sense impression exception to the hearsay rule, and the second tape was properly admitted as an excited utterance. 277 A.D.2d at 247, 716 N.Y.S.2d at 59. With respect to petitioner's claim as to the sufficiency of the evidence, the appellate court held that petitioner had failed to preserve the issue for appellate review, and that, in any event, the evidence, viewed in the light most favorable to the State, was legally sufficient and the verdict was not against the weight of the evidence. 277 A.D.2d at 247, 716 N.Y.S.2d at 60. Finally, as to the two remaining claims, the Appellate Division found that they were either unpreserved for review or without merit. (Id.)

Leave to appeal to the New York Court of Appeals was denied on January 19, 2001. People v. Carr, 96 N.Y.2d 733, 745 N.E.2d 1022, 722 N.Y.S.2d 799 (2001).

This petition for a writ of habeas corpus was thereafter filed on October 16, 2001.


At the trial, the State presented the testimony of six witnesses: Sean O'Hanlon, Tom Shannon, Charles Hamill, Michael Knatz, Police Officer John Reilly, and Dr. Adalaid Charlot. Petitioner called three detectives with the New York City Police Department ("NYPD"), Richard Arbacas, Victoria Garcia, and Devora Sconiers, and petitioner testified in his own defense.

The first witness, Sean O'Hanlon, the owner of O'Hanlon's Bar and Grill ("O'Hanlon's" or the "Bar"), located at 118-12 Queens Boulevard in Forest Hills, testified that on a Monday night, early Tuesday morning, in the summer of 1996,2 he was in O'Hanlon's Bar playing darts in preparation for a dart tournament which was scheduled for later that day. (Tr. at 97, 109). Playing darts with O'Hanlon that evening were his teammates, Michael Knatz, Jose Suarez, and a customer, Javier. (Id. at 111-112). Tom Shannon, who had been employed at the Bar for approximately two years, was working as the bartender that night. (Id. at 111, 264). Also in the Bar at the time of the incident was the victim, Francis White, who had been a customer at O'Hanlon's for approximately two years, and his friends, Charlie, and Frank.3 (Id. at 113-114, 270).

According to Mr. O'Hanlon, the petitioner entered the Bar at approximately mid-night that evening, and "he looked like he was pretty loaded already." (Id. at 115). O'Hanlon was playing darts at the time; Francis White and his two friends were sitting at the bar drinking. (Id. at 116, 270). Petitioner walked up to the bartender and asked for two Heinekens to go. (Id. at 117). Mr. Shannon, the bartender, confirmed Hanlon's testimony that petitioner entered the Bar at approximately 11:30 p.m. that night and told Shannon to put three or four Heinekens in a bag to go. (Id. at 271). Shannon told petitioner that he could not serve petitioner because petitioner had had too much to drink and "besides, we don't sell beer to go." (Id. at 118, 272). According to O'Hanlon, petitioner in response, said, "fuck you" to the bartender and then left the Bar. (Id. at 119, 272). Shannon described petitioner as "very jittery," "his hands were going all over the place, he was kind of bouncing back and forth ... his eyes didn't look right," "like he was high on something." (Id. at 274). According to Shannon, "he was very aggressive," "shouting all the time." (Id.)

Approximately three to four minutes later,4 petitioner returned to the Bar, walked up to the bartender, threw down a hundred dollar bill on the bar, and said, "break this fucking bill and take $5 for yourself." (Id. at 120). When the bartender told petitioner that he did not break hundred dollar bills, petitioner "got angrier." (Id. at 121). According to O'Hanlon, petitioner "started screaming, `what the fuck is wrong with you people in here,'" looking at everyone in the Bar and yelling in a loud voice. (Id. at 122). Shannon confirmed that he told the petitioner that he would not change the bill and at that point, according to Shannon, petitioner started "cursing [Shannon] out;" "[h]e was shouting, he was going nuts." (Id. at 277).

O'Hanlon then walked up to petitioner and asked him to leave, telling petitioner that he was the owner, that petitioner was not going to be served, and that petitioner should leave. (Id. at 122-23, 278). Petitioner cursed at O'Hanlon. (Id. at 123-24). According to Shannon, petitioner then hit O'Hanlon in the face, at which point Shannon ran around the end of the bar to help. (Id. at 281-82). A struggle ensued and eventually, O'Hanlon and Shannon lifted petitioner up and dragged him out the door, after which point they locked the door. (Id. at 126-29, 285-87). According to O'Hanlon, the victim and his three friends did not punch or kick or do anything to petitioner while he was in the Bar. (Id. at 141).

After they threw petitioner out of the Bar, O'Hanlon locked the door and heard petitioner yell that he was not "finished with this, I'm coming back, I'm not done with this." (Id. at 130). O'Hanlon noticed that during the scuffle, petitioner had lost one of his sneakers, so O'Hanlon threw it out and locked the door again. (Id. at 131-32). One of the other customers pointed out petitioner's wallet which had also fallen out during the struggle. (Id. at 132-34).

Shannon testified that he stayed by the big front window where he saw petitioner get into his car and start driving like he was going to drive into the door of the Bar. (Id. at 290, 292). O'Hanlon testified that after throwing out the sneaker, he immediately went to the phone to call 911 because he could see from the window that petitioner had gotten into his car and was trying to back it up over the sidewalk into the front of the Bar. (Id. at 134, 142, 43, 292). He told the 911 operator that he needed the police because ...

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