Davis v. Strack
| Citation | 211 F.Supp.2d 377 |
| Decision Date | 17 April 2000 |
| Docket Number | No. 97 Civ. 5375(RMB)(AJP).,97 Civ. 5375(RMB)(AJP). |
| Parties | Ronald DAVIS, Petitioner, v. Wayne STRACK, Superintendent, Fishkill Correctional Facility, and Dennis Vacco, New York State Attorney General, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Frances A. Gallagher, The Legal Aid Society, New York City, for Petitioner.
Rona Z. Feinberg, Asst. District Attorney, New York City, for Respondents.
On or about July 11, 1997, Ronald Davis ("Davis" or "Petitioner") filed a petition, pursuant to 28 U.S.C. § 2254(d), for a writ of habeas corpus ("Petition") in the United States District Court, Southern District of New York. Davis had been convicted in 1994 in New York State Supreme Court, New York County, of manslaughter in the second degree (N.Y. Penal Law § 125.15) and sentenced to seven to twenty-one years imprisonment for fatally shooting Eddie Ray Leonard, also known as "Bubblegum" ("Bubblegum"). In his Petition, Davis argues that the trial court's refusal to charge the jury with respect to the defense of justification violated his due process rights under the Fourteenth Amendment. On April 13, 1999, the Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York, to whom the matter had been referred, issued a Report and Recommendation ("Report"), recommending that Mr. Davis' Petition be denied on the merits. Petitioner timely filed Objections to the Report ("Objections") with the Court; the State of New York (through the Office of Robert Morgenthau, District Attorney, New York County) filed Respondent's Reply to Petitioner's Objections to the Magistrate Judge's Report ("Reply").
For the reasons set forth below, the Court adopts Magistrate Peck's Report in all material respects and concludes both that Petitioner's writ of habeas corpus is not procedurally barred and that it should be denied on the merits.
The facts are undisputed and include the following:
Petitioner Davis, on June 20, 1992, shot Bubblegum five times in the back and killed him. At the time of the shooting, Bubblegum did not have a gun.
Although Davis knew Bubblegum all his life, the two were adversaries. Davis had regarded Bubblegum as "a bad guy, a stick up kid, robbing people." (Report at 393 quoting Davis, Tr2. at 34.) Davis testified at his trial that he would "go the other way" from Bubblegum because he "didn't want to have no problem [sic]." (Id.) Davis had three negative encounters with Bubblegum over the years prior to the day of the shooting. Bubblegum, according to Davis, twice robbed Davis (1984, 1986) and also raped him during a 1992 encounter ("third incident"), threatening to kill him on two of those occasions.1 None of these incidents were reported to the police (Report at 394 quoting Davis, Tr2. at 40.) After the third incident, Davis went to Maryland. He returned to New York three to four weeks later on June 19, 1992, "so that he could be with his family on his birthday on June 21." (Report at 396.)
Magistrate Judge Peck outlined the following events leading up to and including the shooting of Bubblegum by Davis. (Report at 6-13). On June 20, 1992, after running numbers in the morning, Davis came out of a grocery store on the corner of 146th Street and Amsterdam Avenue (in Manhattan) at 9:00p.m. and stood with his friend "Little Will." (Davis, Tr2. at 55, 95-99.) Davis "looked over" and saw Bubblegum who was standing two cars down on Amsterdam Avenue. (Id. at 55-56, 96.) Davis made eye contact with Bubblegum, and Bubblegum looked in his direction while talking to "another guy." (Id. at 56-57, 101-102.) Ellen Symonette2 testified that Bubblegum had just come out of a drug prone location with eyes that were "bugging out" and "sweating real like popping out real sweats" and that Bubblegum looked "nervous." (Symonette, at 485-87, 501.)
Davis testified that he was afraid of Bubblegum as soon as he saw him. (Davis, Tr2. at 103.) Thereupon, Davis went around the corner to "get a gun" from a man named Red at "the spot," i.e. the place where Davis took the numbers he ran and where drugs were dealt. (Id. at 57-58, 102-103.) Davis looked to see if Bubblegum was following him. He was not. (Id. at 103-106 (emphasis added).) In "the spot," Davis told Red that "the guy who robbed [him] was downstairs," and Red gave him a chrome plated .38 revolver. (Id. at 58, 110.) Davis checked that the gun was loaded. (Id. at 110-111.) Davis got the gun, he said, "[b]ecause last time [Bubblegum] left [Davis] he told [Davis] he was going to kill [Davis]." (Id. at 58.) Davis testified that he did not intend to kill Bubblegum, but he "wasn't going to let [Bubblegum] hurt [him] again." (Id. at 59, 111.)
When Davis came out of the building with the gun, he did not see Bubblegum (Id. at 112). He conceded that he could have left the area or stayed (presumably safely) at "the spot," but did not because he "wasn't thinking right." (Id. at 59, 107, 112-114.) "All [Davis] was thinking about was the last time [Bubblegum] raped [him]." (Id. at 107.) Instead, Davis went back out onto the street and found the place where Bubblegum previously stood. (Id. at 58-59, 113-114.) At first Davis saw the man with whom Bubblegum had been standing, but did not see Bubblegum. (Id. at 58-59.)
At approximately this point in time, Symonette had stopped Bubblegum and "asked him [if he] want[ed] to buy a phone." (Symonette, Tr1. at 487.) Bubblegum called his wife from a phone booth to discuss buying the phone. (Id. at 488-89, 503-04, 516-18.) On direct examination, Symonette testified that Bubblegum said [']" (Id. at 490.) On cross examination by defense counsel, Symonette said that when she went (back) up to Bubblegum he looked agitated and when she said "what's wrong" he said he wanted the phone and just stood there. (Id. at 520.) Symonette also testified that Bubblegum said "`I have to hit this guy off.'" (Id. at 506-07.) Bubblegum had a brown bag in his right hand and the telephone in his left hand. (Id. at 521-22.)
At about this time, Davis spotted Bubblegum (again) at "the entrance of the school closer to 147th Street," up the block on the other side of the street. (Davis, Tr2. at 59, 62.) Davis walked "across the street [in Bubblegum's general direction] and tried to ring [his] friend" Gregory Reid's doorbell allegedly "[t]o get out of the street and away from [Bubblegum]," although geographically—with a loaded .38 chrome handgun—Davis was going toward the danger (i.e. Bubblegum) instead of away from it. (Id. at 60-61, 114-115.) Davis testified that no one answered Reid's bell, and Davis could not get into Reid's building without being buzzed in. (Id. at 61-64.) Davis of Reid's building. (Id. at 62.) Davis put his back against the wall. (Id. at 64.) Bubblegum "just stood there looking at him and [Davis] was looking at the guy across the street." (Id.) Bubblegum and Davis made eye contact. (Id. at 126.) At this point Bubblegum was about fifteen to twenty feet away from Davis. (Id. at 124-25.)
Bubblegum started to walk toward Davis; Bubblegum was (Id. at 65.) "[Davis] didn't want to get shot in [his] back." (Id. at 65-66.)
According to Davis, Bubblegum walked past Davis, turned, and reached to his left with his hand at his waist. (Id. at 65-66, 72-73, 139.) Davis was on Bubblegum's left side. (Id. at 66.) Davis "thought [Bubblegum] was going to shoot [him]," although he did not see a gun on Bubblegum. (Id. at 72-73, 132-33.) Davis ran behind Bubblegum to the right, so that Bubblegum would always have his back to him. (Id. at 67, 146-47, 191.) Davis said that at that point he was "stuck;" he "panicked," and could not run away. (Id. at 141-44.)
At this point, Davis aimed his .38 revolver and shot Bubblegum five times in the back. (Id. at 68; see also Hayes, Tr1. at 630, 636, 646 ().) As Bubblegum fell, wounded, Davis kept shooting. (Davis, Tr2. at 69.) Davis then ran down the hill, threw the gun away, and went home. (Id. at 69-71, 153.)
On January 6, 1993, the police arrested Davis. (Sgt. Hollifield, Tr1. at 281-86; Detective Mooney, Tr1. at 586.) Detective Mooney (Id. at 587.) Detective Mooney advised Davis of his Miranda rights. (Id. at 587-92.) Initially, Davis lied and said that he had not been present at the shooting, but had (instead) been at a party. (Id. at 593-97; see also Davis, Tr2. at 71-72, 163-65.) Thereafter, Davis recanted, confessed to shooting Bubblegum, and gave a second statement, which he went over with Detective Mooney two or three times, before Mooney wrote it down and Davis signed it. (Mooney, Tr1. at 601-03; Davis Tr2. at 166-67.)
At trial, Detective Mooney read Davis' confession into the record:
I knew Bubblegum almost all my life since I have been in the street. When I was about 15 or 16 years old he robbed me and a friend of mine named Greg Pearce. He put a gun to our heads, made us strip butt naked and took all our money.
A couple of years later when I was about 18 or 19 years old, I was by myself and Bubblegum grabbed me again. He had a gun and went into my pockets and took my money.
About a month before Bubblegum was killed, he was with another guy. I don't know his name. They grabbed me on 146th Street by...
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