Dupont v. Phillips
| Decision Date | 26 June 2012 |
| Docket Number | 05-CV-3426 (RRM) |
| Parties | DOMINIC DUPONT, Petitioner, v. WILLIAM PHILLIPS, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On May 4, 1998, Dominic Dupont was convicted in New York Supreme Court of murdering Nolan Profitt. At trial, the prosecutor denied possessing the victim's clothing and never presented it as evidence, even though gunpowder patterns on the clothing could have confirmed witness testimony that Profitt was shot at close range during a scuffle with Dupont. After he was sentenced, Dupont uncovered that the police had in fact vouchered Profitt's clothing shortly after the murder. A state collateral proceeding determined that both the prosecutor and defense counsel had evidence before trial that the clothing had been vouchered, although both were clearly unaware of this fact throughout the trial and subsequent proceedings. In the end, the clothing proved not to be exculpatory or impeaching, as later testing revealed gunpowder patterns consistent with a close-range shooting.
On September 5, 2006, Dupont moved this Court pro se for entry of an amended petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. In his amended petition, Dupont alleges that the trial and appellate prosecutors violated Brady v. Maryland, 373 U.S. 83 (1963), by knowingly withholding the victim's clothing, and committed misconduct by misrepresenting that the police did not possess the clothing. Dupont also alleges that the People should have beensanctioned for failing to provide him with the clothing, that his trial and appellate counsel provided ineffective assistance, and that the trial evidence was legally insufficient to prove that he acted with depraved indifference to human life.
For the reasons set forth below, the Court finds petitioner's claims are without merit, and DISMISSES the amended petition in its entirety.
Petitioner Dominic Dupont was charged under Kings County Indictment Number 627/97 with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25(1), (2)) and one count each of Criminal Possession of a Weapon in the Second Degree (§ 265.03) and Third Degree (§ 265.02(4)). (Aff. Opp. Pet. Writ Habeas Corpus ("Opp. Aff.") (Doc No. 10) at 2.) Petitioner's trial commenced on April 27, 1998 before Supreme Court Justice Robert S. Kreindler and a Brooklyn jury. (Opp. Aff. Ex. R, Trial Transcript ("Tr.") at 1.)
Trial witness Robert Cush ("Cush") testified that on June 4, 1997, shortly before 7:40 p.m., he and his cousin, the decedent Nolan Profitt ("Profitt"), were walking down Foster Avenue in Brooklyn. (Id. at 321-30.) Petitioner's fraternal twin brother Nolan Dupont approached Cush and Profitt, and repeatedly asked them if they had a problem with him or "his boys." (Id. at 334.) While Cush was talking with petitioner's brother, petitioner and his associate Wendall Derilus ("Derilus") approached Cush from behind. (Id. at 335-36.) From about three car lengths away, petitioner ordered his brother to get out of the way so petitioner could "baddy those niggers" — that is, kill Cush and Profitt. (Id. at 336-39.) When Cush turned around he saw petitioner holding a nickel chrome plated gun. (Id. at 338-39.) Cush then pushed Derilus asideand fled across Nostrand Avenue, but fell between two cars. (Id. at 340-44.) Petitioner's brother and Derilus caught up to Cush and began to hit him. (Id. at 344-46.)
Cush testified that his other cousin, Beverly Moffatt ("Moffatt"), saw the beating and rushed over, grabbing a hold of petitioner's brother. (Id. at 346.) Petitioner ordered Moffatt to let go of his brother, and Moffatt complied. (Id. at 350-51.) According to Cush, Profitt then began to scuffle with petitioner, who proceeded to place Profitt in a headlock. (Id. at 351.) Cush "heard the gun go off," and saw Profitt fall to the ground. (Id. at 354-55.) Cush saw petitioner pick two guns off of the ground, and then run off with his brother. (Id. at 355.) An autopsy later determined that Profitt died from a gunshot wound to the torso. (Id. at 806.)
Moffatt likewise testified at trial that she came upon petitioner's brother and Derilus hitting Cush, and that she grabbed a hold of petitioner's brother, while another witness, Eustace Scantelbury ("Scantelbury") grabbed Derilus. (Id. at 515-17.) According to Moffatt, petitioner then drew a silver gun from his waist and ordered Moffatt to "back the fuck up." (Id. at 517-18.) After Moffatt released petitioner's brother, petitioner grabbed Profitt from behind and began to fight with him. Moffatt testified that during the fight, petitioner ended up holding Profitt from behind with his right arm, and reached around to shoot him in the chest with the gun in his left hand. (Id. at 521, 536.) According to Moffatt, petitioner then threw the gun into a green car and fled in the car. (Id. at 539-40.)
Scantelbury also testified at trial that he attempted to intervene between Cush and his two assailants, but that petitioner drew a "shined out gray gun" and ordered him to "back the 'F' up." (Id. at 655-56.) Scantelbury, however, testified that at the time of the shooting, Profitt was holding petitioner from behind, and not the other way around. (Id. 657, 687.) According toScantelbury, petitioner used the gun in his left hand to shoot Profitt in the chest over petitioner's own right shoulder. (Id. at 693.)
The day after the murder, Detective Frank Roman received an anonymous phone call directing the police to 1351 New York Avenue in Brooklyn, the building where petitioner lived. (Id. at 689-99.) There, on the roof, the detective recovered a nickel plated .380 caliber semiautomatic handgun and a .357 magnum revolver. (Id. at 699-701, 706.) Detective Robert Tamburri, who was identified at trial as an expert in firearms and microscopic comparisons, later determined that a discharged bullet found at the crime scene matched the .380 handgun. (Id. at 765-66.)
Medical examiner Stephen DeRoux examined Profitt's body, which he testified was delivered to him unclothed. (Id. at 800.) DeRoux located one entry would and one exit wound in Profitt's upper torso. (Id. at 801.) DeRoux found no "contact wound" as would be expected if the muzzle were in contact with the body at the time of discharge, nor any "stippling" or "fouling" as would be expected if the gun were fired within eighteen inches of the body without clothing. (Id. at 810-13.) DeRoux testified, however, that Profitt's clothing would have affected how much fouling or stippling DeRoux would expect to find on the body. (Id. at 809.) DeRoux stated that "[i]f the deceased was wearing clothing at the time and the bullet went through the clothing, then all bets are off as far as the distance unless we have the clothing for either examination or testing." (Id. at 827.)
Before closing arguments, petitioner's trial counsel requested an adverse inference instruction1 based on the prosecution's failure to produce Profitt's clothing for examination. (Id. at 862-70.) The trial prosecutor, then-Assistant District Attorney Danielle V. Eaddy, affirmed toJustice Kreindler that she did not know the location of Profitt's clothing. (Id. at 863.) Justice Kreindler gave ADA Eaddy ninety minutes to reopen the case and establish what happened to the clothing, warning her that a "missing evidence charge with respect to the deceased's clothing" would issue if she was unready to reopen the case at that time. (Id. at 864-65.) Eaddy objected, stating that "[t]here is no testimony that this clothing was evidence in the People's possession" and asking, "Why should that be attributed to the People . . . ?" (Id. at 865-66.)
After a short recess, Justice Kreindler asked petitioner's trial counsel for the basis on which he sought the adverse charge. (Id. at 867.) Trial counsel explained that a lack of fouling or stippling on the clothing would challenge the credibility of the witnesses and their descriptions of the shooting, as it would indicate that the gun, "if you include the sizing of the barrel, had to be two feet to the deceased's right when it was fired." (Id. at 868.)
Justice Kreindler decided not to issue the charge "because, number one, it's only on the issue of credibility and, number two, . . . there has been nothing in the case to indicate that the police had anything to do with the missing clothing." (Id. at 869.) However, trial counsel was permitted in summation to address the absence of the clothing, and the failure of the police to preserve it. (Id. at 917-19.) Accordingly, trial counsel argued before the jury that because no stippling or fouling was found on Profitt's body, (Id. at 915.) Trial counsel then reenacted the fight as described by Moffatt and as described by Scantelbury, arguing that in either configuration petitioner could not reach far enough to hold the gun two feet from Profitt during the scuffle. (Id. at 918-19.) ADA Eaddy reminded the jury in her summation that DeRoux said he could not form an opinion about thedistance between the gun and the victim without knowing if stippling or powder were on the clothing. (Id. at 948-49.)
Petitioner was convicted of depraved indifference murder in the second degree and criminal possession of a weapon in the second degree, and was sentenced to concurrent prison terms of twenty-five years to life for the murder and seven and one-half to fifteen years for the weapon possession.
Petitioner appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"). See N.Y. Crim. Proc. Law §450.10(1). Petitioner's appellate counsel, Cynthia Colt of the Legal Aid Society, filed a forty-six page brief on petitioner's behalf, raising the following claims:
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