Drake v. Woods

Citation547 F.Supp.2d 253
Decision Date10 April 2008
Docket NumberNo. 07 Civ. 7015(DC).,07 Civ. 7015(DC).
PartiesParis DRAKE, Petitioner, v. Robert WOODS, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Office of the Appellate Defender, by Richard M. Greenberg, Esq., New York, NY, for Petitioner.

Robert M. Morgenthau, Esq., District Attorney, New York County, by Mark Dwyer, Esq., Assistant District Attorney, New York, NY, for Respondent.

OPINION

CHIN, District Judge.

Paris Drake petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Supreme Court of New York, New York County, Drake was convicted on December 13, 2000 of Assault in the First Degree, N.Y. Penal Law § 120.10(1) (McKinney 2004), and Criminal Possession of a Weapon in the Third Degree, N.Y Penal Law § 265.02(1) (McKinney 2000). He was sentenced to concurrent terms of imprisonment of 25 years and 3.5 to 7 years.

Drake contests his conviction on the grounds that the trial court violated (1) his due process right to a fair trial, and (2) his Sixth Amendment right of confrontation. For the reasons that follow, the petition is denied.

BACKGROUND
A. The Facts

The following is a summary of the facts adduced during the trial.

1. The Assault

At about 3:00 p.m. on November 16, 1999, 27-year old Nicole Barrett was standing on the corner of 42nd Street and Madison Avenue in midtown Manhattan, when a man — determined by the jury to be petitioner — hurled a large brick towards her. (Tr. 59-61, 135-36).1 The brick struck her in the head, causing permanent brain damage and other long-term injuries. (Id. at 33, 348-49). After throwing the brick, the man ran up Madison Avenue and took a left turn on 43rd Street. (Id. at 139-40). Two civilian witnesses chased the man across 43rd Street, but they lost sight of him after he crossed Fifth Avenue. (Id. at 142, 225).

2. The Investigation

In the weeks following the incident, the police received many tips about individuals who might have committed the crime. (Id. at 540-42, 557, 563). An early tip came from a social worker at a homeless shelter in Brooklyn, who reported that a resident of the shelter, Clement Tikiba, matched the description of the perpetrator. (Id. at 924). Three eyewitnesses to the crime, Witness A,2 Anthony Caggino, and Richard DePetris, identified a photo of Tikiba as resembling the perpetrator. (Id. at 104-07, 269-77, 736-37, 944-45). Efforts to locate Tikiba were unsuccessful. (Id. at 947).

On November 29, 1999, Paris Drake was arrested based on information from a man named Robert Fluken. (Id. at 505-06). On November 30, Witness A selected Drake out of a lineup as the man she had observed throwing a brick at Barrett. (Id. at 71-72). On December 1, 1999, Caggino saw Drake on a television broadcast and positively identified him as the perpetrator. (Id. at 238).

3. The Indictment

In December 1999, a grand jury in the Supreme Court, New York County, charged Drake with Attempted Murder in the Second Degree, three counts of Assault in the First Degree, two counts of Attempted Robbery in the First Degree, and one count of Criminal Possession of a Weapon in the Third Degree.

B. Prior Proceedings
1. The Trial

On November 13, 2000, the jury trial commenced before Judge Laura Visitacion-Lewis. The parties presented the testimony of eleven eyewitnesses: six for the prosecution and five for the defense. Two of the prosecution's eyewitnesses, Witness A and Caggino, identified Drake as the person they believed had attacked Barrett. (Id. at 72, 239). Three of the defense eyewitnesses — Anne Drucker, Todd Michael Hardy, and Damon Segar — testified that Drake was not or did not appear to be the perpetrator. (Id. at 792, 854, 885).

Prior to the trial, the prosecutor disclosed that one eyewitness, Witness A, had been returning from a psychotherapy session at the time of the incident and requested that the defense not inquire about the appointment at trial. (Pre-Trial Tr. ("PT") 58-60). According to the prosecution, this was Witness A's third visit to the therapist, with whom she would discuss "the general issues of her life." (Id. at 58-59). The prosecutor also disclosed that Witness A was taking "mild medication for anxiety." (Id. at 64). The court denied defense counsel's request for an in camera inspection of Witness A's psychiatric files and granted the prosecution's request to prohibit questioning about the psychotherapy session or Witness A's mental health history. (Id. at 66, 71).

The prosecution also presented two witnesses who testified that they had heard Drake admit to the assault. Shakir Pittman testified that while he was incarcerated at "the Tombs" in Manhattan, he had asked Drake, "[s]he didn't give you any money when you asked her for some?" to which Drake replied, "[y]eah, that rich white bitch deserved it." (Id. at 483). Pittman also testified that when he asked Drake "[w]hat did you hit her in the head with the brick for?" Drake told him that "[s]he came out of her mouth something slick, and I cracked her in the brain-piece." (Id. at 484).

Carl Fortner, a ticket scalper who also "hustle[d] cabs"3 at Penn Station, testified about a conversation he had with Drake on November 24, 1999, when Fortner was being released from Rikers Island as Drake was being brought in. (Id. at 399-402). Fortner testified that Drake told him that he "got into some shit with some white bitch at Grand, and Ds may be looking for him."' (Id. at 405). Fortner understood "Grand" to mean the area around Grand Central Station, including Madison Avenue and 42nd Street, and understood "Ds" to mean detectives. (Id. at 405-06).

After testifying at trial, Fortner reportedly spoke to Pablo Guzman, a television. reporter. According to Guzman, Fortner told him something like "I don't think he hit that person with the brick, I don't think he's that kind of guy, you figure it out." (Id. at 640). Defense counsel asked permission to recall Fortner to question him about his statements to Guzman. (Id. at 637). Defense counsel contended that the statements contradicted Fortner's testimony regarding his motive to testify. (Id. at 634-37). Specifically, defense counsel pointed to Fortner's testimony that "when I saw [Drake's] picture in the paper, the shit clicked, oh, shit, that was wrong, that was, you know, a lady that could have been my mother you hit with the brick." (Id. at 634-35). The court denied the request, finding that the statement was hearsay and was irrelevant because it consisted only of Fortner's opinion about Drake's culpability. (Id. at 640). Additionally, the court found the statement inadmissible for impeachment purposes because Fortner's subsequent statement did not contradict his professed motive for going to the police. (Id. at 641). Rather, the court gave weight to another portion of Fortner's testimony — that "[i]f he hit that lady in the head with the brick, it was wrong" — and found that Fortner's position was never that he had come forward because he was convinced of Drake's guilt. (Id. at 641).

Defense counsel also presented the testimony of Dr. Elizabeth Loftis, an expert in eyewitness identification who testified about factors that can distort eyewitness testimony. (Id. at 1001-13). Over defense counsel's objections, the court instructed the jury that Dr. Loftis's testimony could not be used "to discredit or accredit the reliability of eyewitness testimony in general or in this case." (Id. at 1176).

On November 29, 2000, after two declarations of deadlock (id. at 1245-46, 1265), the jury found Drake not guilty of Attempted Murder in the Second Degree, not guilty of two counts of Attempted Robbery in the First Degree, and not guilty of one count of Assault in the First Degree, but guilty of one count of Assault in the First Degree and Criminal Possession of a Weapon in the Third Degree. (Id. at 1304-05). On December 13, 2000, the court sentenced Drake to 25 years for Assault and a concurrent indeterminate term of 3.5 to 7 years for Criminal Possession of a Weapon. (Sentencing Tr. 34).

2. The Appeals

Drake filed a timely notice of appeal with the Appellate Division, First Department. His appeal presented the following claims: (1) the verdict was against the weight of the evidence, (2) the trial court erred in precluding the jury's consideration of Dr. Loftis's expert testimony, (3) Drake was denied his confrontation rights and right to due process when the trial court refused to allow defense counsel to recall Carl Fortner, (4) Drake was denied his confrontation rights and right to due process when the court refused to review Witness A's psychiatric records or allow cross-examination regarding Witness A's mental health history, (5) the trial court erred in failing to admit exculpatory evidence, and (6) the trial court erred in imposing the maximum sentence.

On June 16, 2005, the First Department unanimously affirmed Drake's conviction. People v. Drake, 19 A.D.3d 209, 797 N.Y.S.2d 52 (1st Dep't 2005). The court ruled that the verdict was not against the weight of the evidence, and that the trial court's charge properly instructed the jury on the use of expert testimony. Id. at 53. The court also found that the trial court properly exercised its discretion in denying defendant's request for an in camera inspection of Witness A's psychiatric records, precluding inquiry about her psychiatric treatment, and denying defense counsel's request to recall Fortner. Id. The First Department rejected Drake's other claims without discussion. Id.

The Court of Appeals granted Drake's application for leave to appeal on October 20, 2005. People v. Drake, 5 N.Y.3d 838, 805 N.Y.S.2d 541, 839 N.E.2d 894 (2005). Drake again raised the trial court's instruction to the jury regarding the testimony of Dr. Loftis, the trial court's refusal to allow inquiry into Witness A's psychiatric history, and the trial court's refusal to...

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  • Myers v. Tibbals
    • United States
    • U.S. District Court — Northern District of Ohio
    • 8 Abril 2015
    ...(9th Cir. 2009), cert. denied, 558 U.S. 1126 (2010) (citing Davis v. Alaska, 415 U.S. 308, 315-316 (1974)); Drake v. Woods, 547 F.Supp.2d 253, 264 (S.D. N.Y. 2008). The Confrontation Clause only guarantees the opportunity for cross-examination, and the right to confront one's accusers norma......
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    • 26 Agosto 2015
    ...contemporaneous objection rule, may be precluded from raising that claim in a federal habeas corpus petition." Drake v. Woods, 547 F. Supp. 2d 253, 261 (S.D.N.Y. 2008). The procedural bar applies even where the state court has "ruled in the alternative on the merits of the federal claim." V......

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