Fabers v. Lamanna

• Decision Date: 15 April 2020
• Docket Number: 18-CV-2399 (PKC)
• Parties: LAMEL FABERS, Petitioner, v. JAMIE LAMANNA, Respondent.
• Court: U.S. District Court — Eastern District of New York

LAMEL FABERS, Petitioner, v. JAMIE LAMANNA, Respondent.

18-CV-2399 (PKC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

April 15, 2020

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Petitioner Lamel Fabers, appearing pro se,¹ petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for murder in the second degree and criminal possession of a weapon in the second degree.² For the reasons set forth below, the petition is denied in its entirety.

BACKGROUND

I. Facts

On the evening of January 22, 2010, Petitioner attended a party at 287 Montauk Avenue in Brooklyn, New York.³ (Trial Transcript ("Tr."), Dkt. 9-3, at 458:7-9, 542:18-22, 550:21-551:1.)Between 12 to 15 others were present at the party, including Shamil Paige, Monica Murray, who had been invited to the party to perform as a stripper, and Ayodele Philip, Murray's boyfriend. (Id., Dkt. 9-2, at 176:15-177:24; 179:23-180:12, 186:12-17, 188:16-19, 188:22-24, 261:21-262:14, 266:1-11.)

At the party, in a back room of the house, Petitioner and another guest, Bobby Pressley, told Murray that if she wanted money she should "crawl to them." (Id. at 191:2.) Petitioner then exposed his penis and told Murray "if you want this money come get it. Come crawl to me." (Id. at 191:2-5.) Murray began crawling to Petitioner when Philip walked in, became upset because none of the guests had money out, and walked out of the room. (Id. at 191:18-21, 191:24-192:1.) Murray followed Philip out of the back room into the living room and complained that she was not getting any money from the guests. (Id. at 192:15-19.) Soon after Petitioner and Pressley also entered the living room and got into a heated argument with Philip. (Id. at 193:12-17.) The fight escalated when Pressley started saying "shoot him, shoot him." (Id. at 194:18-24.) Petitioner pulled a gun from his waistband and shot Philip several times. (Id. at 194:25-195:14, 197:4-21, 207:1, 269:16-22, 273:1-274:15, 277:4-12.)

Two New York City Police Department officers, Captain Scott Henderson and Lieutenant Mastronardi⁴ happened to be in the area and responded quickly to the scene of the shooting. (Id. at 331:5-23.) Henderson and Mastronardi became aware of the shooting after they saw a large group of people, including Petitioner and Pressley, running down Montauk Avenue saying that there had been a shooting. (Id. at 333:7-25, 340:21-341:21, 346:15-24, 350:13-17, 351:8-16.)Henderson tried to "stop the people that were running to find out what was going on[, but] because no one was saying that a particular individual was the perpetrator, they were just saying that someone had gotten shot," Henderson "chose not to stop [Petitioner] at that time." (Id. at 345:19-24.) Henderson "didn't see any weapon in [Petitioner's] hand, [and Petitioner] didn't appear to be injured," plus, Henderson's "focus at that time was to try to find the individual that [he] believed may have been shot." (Id. at 345:24-346:2.) Henderson then proceeded to 287 Montauk Avenue to investigate the report of the shooting, which is where he discovered Philip's body. (Id. at 334:2-23, 336:12-19.)

That same night, several individuals, including Petitioner and Pressley, were brought to the precinct, as potential witnesses, for interviewing by Detectives Kalisky and Bodnar.⁵ (Tr., Dkt. 9-3, at 458:18-20, 461:17-19; see also Hearing Transcript ("Hr."), Dkt. 9-1, at ECF⁶ 399:13-24, ECF 431:9-432:5.) As the detectives were interviewing the witnesses, they began to suspect that Petitioner and Pressley were actually involved in the shooting. (Hr., Dkt. 9-1, at ECF 431:9-12.) Kalisky then placed Petitioner in a photo array that he showed to Murray. (Id. at ECF 398:1-12.) Murray identified Petitioner from the photo array as the person who had shot Philip earlier thatnight. (Id. at ECF 398:13-20.) Later that morning, Kalisky placed Petitioner in a lineup. (Tr., Dkt. 9-3, at 474:10-12.) Though Kalisky estimated Petitioner's weight at the time to be around 300 pounds, none of the other lineup participants, or "fillers," weighed more than 200 pounds. (Id. at 484:22-24, 488:8-23.) Petitioner was also the only lineup participant wearing all black clothing. (Hr., Dkt. 9-1, at ECF 426:18-20.) Paige and Murray separately identified Petitioner from the lineup as the shooter.⁷ (Id. at ECF 413:17-414:22, ECF 417:8-418:12.) Petitioner was then arrested. (Id. at ECF 420:25-421:2.) He was charged, under Kings County Indictment Number 799/2010, with Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree. (R., Dkt. 9-4, at ECF 1234; see also Respondent's Affirmation in Opposition ("Resp.'s Aff."), Dkt. 9, at ¶ 5.)

II. Trial

Petitioner's jury trial was held from October 4, 2011 to October 14, 2011 before Justice Neil Jon Firetog, Supreme Court, Kings County. (R., Dkt. 9-4, at ECF 1234, 1238 n.1.) Prior to the trial, Justice Firetog held a Wade hearing⁸ on October 3, 2011 and October 4, 2011, to determine whether the identifications by Paige and Murray should be suppressed because Petitioner's lineup was unduly suggestive. (See generally Hr., Dkt. 9-1.) At the hearing, Detective Kalisky, the prosecution's only witness, testified to the eyewitness identifications made by Murray, Paige, Guerrero, and Shields that led to Petitioner's arrest (id. at ECF 410:20-412:23 (Guerrero's identification), ECF 413:17-414:25 (Paige's identification), ECF 415:11-416:21 (Shields'sidentification), ECF 417:8-418:16 (Murray's identification)), as well as the efforts he made to find fillers for the lineup that matched Petitioner's appearance (id. at ECF 410:8-19, ECF 424:3-425:6, ECF 425:25-426:20, ECF 427:20-428:25). The prosecution also introduced photo evidence of the lineups viewed by Murray, Paige, Guerrero, and Shields. (Id. at ECF 413:11-414:3; ECF 415:5-22; ECF 417:1-17.) Once the hearing concluded, Justice Firetog denied Petitioner's motion to suppress the lineup identification on the record, concluding that

the lineup was not unduly suggestive and that there was no substantial likelihood of a misidentification based on either the conduct or the composition of the lineup. The fillers used were sufficiently similar in appearance to [Petitioner] and the lineup constituted a fairly representative panel upon which a witness could make a reliable identification.

(Id. at ECF 468:18-25.) In making his decision, Justice Firetog specifically noted that he "examined the People's exhibits, the photographs of each of the lineups." (Id. at ECF 468:17-18.)

At trial, the prosecution presented 13 witnesses. Murray and Paige testified to the events of the night of January 22, 2010. (See generally Tr., Dkt. 9-2, at 175:6-237:12 (Murray testimony); id. at 260:17-322:13 (Paige testimony).) Rachael Philip, Ayodele Philip's sister-in-law who also raised him, testified to identifying her brother's body after this death (see generally id. at 30:1-31:7), and Michael Philip, Ayodele Philip's brother, testified to finding the murder weapon, a gun, on the street outside of 287 Montauk Avenue (see generally id. at 238:16-242:22). The prosecution also called several police officers, detectives, and technicians, who testified to the state of 287 Montauk Avenue after the shooting and the ensuing investigation. These law enforcement witnesses included Detective Kalisky who testified, inter alia, to the eyewitness identifications of Petitioner by Murray and Paige, and Captain Henderson, who testified, inter alia, to encountering a large group of people, including Petitioner, running down Montauk Avenue saying that a shooting had just occurred. (See generally id. at 328:1-351:20 (Henderson testimony); id., Dkt.9-3, at 454:24-500:2 (Kalisky testimony); see also id., Dkt. 9-2, at 31:23-81:22 (Officer Tavolario testimony); id. at 82:15-122:18 (Detective Entemann testimony); id. at 124:7-171:25 (Detective Mauge testimony); id. at 243:17-257:23 (Detective Lotter testimony).) Finally, the prosecution called several experts, including Dr. Frede Frederic, who performed the autopsy on Philip (see generally id., Dkt. 9-3, at 367:9-389:21), James Valenti, who performed the firearm analysis on the murder weapon (see generally id. at 390:17-410:3), and Joanne Lee, who performed DNA analysis from samples gathered from the murder weapon (see generally id. at 414:11-445:8).

After Officer Henderson's testimony, Petitioner's counsel moved to reopen the suppression hearing because there is "suppression hearing testimony that said [Petitioner] was taken at the scene with a group of witnesses, which is in direct contradiction of what [Henderson testified to]." (Id., Dkt. 9-2, at 353:17-20; see also id. at 352:13-21.) The trial court denied the motion, stating that Petitioner's counsel had failed to state adequate grounds for a Dunaway hearing,⁹ because there was no evidence that Petitioner was arrested prior to being brought to the precinct. (Id. at 354:10-356:21.) Once the prosecution rested, Petitioner's counsel moved to dismiss, which the trial court denied as well. (Id., Dkt. 9-3, at 500:13-501:15.) Petitioner did not testify or present any evidence on his own behalf. (Id. at 501:16-18.)

The jury deliberated for two days. During their deliberations, the jury sent several notes to the trial court. (Id. at 615:22-618:18, 618:23-636:13, 636:20-641:16.) The trial court addressed the first of these notes outside the presence of counsel. (See id. at 615:22-618:18.) The trial court addressed the last two notes with counsel. (See id. at 618:23-634:2, 636:3-13, 636:20-641:16.)The jury's first note asked for (1) the jury charge regarding acting in concert with respect to the weapon charge; (2) a readback of Lee's testimony, without her qualifications; and (3) Pressley's written statement. (R., Dkt. 9-4, at ECF 1247-48.) The second note requested readbacks of portions of the testimony of Paige, Murray, and Captain Henderson. (Id. at ECF 1248.) The...