Grant v. Racette
| Decision Date | 04 March 2019 |
| Docket Number | 14-CV-3446 (DLI) (ST) |
| Parties | EDWIN GRANT, Petitioner-Defendant, v. STEVEN RACETTE, Superintendent, Clinton Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Petitioner Edwin Grant seeks a writ of habeas corpus. See 28 U.S.C. § 2254(d). For the reasons discussed below, it should be denied.
Petitioner is currently serving a 55-year prison sentence, imposed on February 27, 2008, for attempted murder, attempted robbery in the first degree, aggravated assault upon a police officer and criminal possession of a weapon in the second degree.
Petitioner raises constitutional challenges to three alleged errors at trial upheld by the appellate court: (1) improper admission of an in-court identification; (2) the exclusion of an expert and a fact witness; and (3) ineffective assistance of counsel based on trial counsel's failure to object to the exclusion of Mr. Grant's expert and fact witnesses.
As discussed below, each of Petitioner's claims fails.
On May 10, 2006, at approximately 2:15 p.m., Larry Young, an off-duty detective, was standing in front of his house, on Carroll Street in Crown Heights, Brooklyn. See Trial Tr., ECF No. 8-5 - 8-16; Young: 109, 119-20 122-25.[1] Young was talking to a friend, Thomas Swann, while another friend, Crystal Rodriguez, a cable installer, worked in and around her van, which was double parked in front of Young's house. Rodriguez: 60-68, 79 94, 96-98, 100; Young: 121-27; Brown: 359-61; Swann: 371 374-75, 407, 414. There was a construction site across the street. Rodriguez: 64-65; Young: 126, 141.
Young noticed two men walk down Carroll Street from Utica Avenue and stop in front of a house that was adjacent to the construction site. Rodriguez: 66-67; Young: 127-32, 138, 142-43, 196-99; Swann: 376-77, 415-17. Young had lived on the block for forty-three years, and knew that the men were not from the neighborhood. Young: 119, 126-29, 200, 218. Young had an unobstructed view of the men for five to fifteen minutes, as he talked with Swann and as Rodriguez worked inside the van. Rodriguez: 68, 98, 100, 104; Young: 112-16, 128-31, 138-43, 192-93, 195-202, 206-07, 230, 274-75; Swann: 377-78, 416-17. The men did not talk to each other, but kept looking up and down the street. Young: 139-40, 197. Young then told Rodriguez and Swann to get in the house because he believed the situation was suspicious. Rodriguez: 68-70, 98-99, 103; Swann: 378, 417-19.
Dennis Moore was the owner of a construction company that was operating at the construction site opposite Young's house. Moore: 41-42. Moore employed eleven people at the site, and May 10, 2006 was payday. Moore: 43-45. Moore had withdrawn approximately $10, 000.00 in cash from the bank and had placed the money in his jacket pocket. Moore: 45-46. Moore drove up to the construction site in a van. Moore: 47; Young: 141, 143, 197, 209-10; Swann: 378. As Moore exited the van and stepped onto the sidewalk, the two men Young had been watching drew handguns, approached Moore and ordered him to “take it off, ” which Moore construed as a demand to remove his jacket. Moore: 47-48; Rodriguez: 69; Young: 143-45, 194, 197, 210, 212, 220, 225; Swann: 378, 418. When Moore did not remove the jacket, the two men pistol-whipped him and shot him three times. Moore: 48-50; Rodriguez: 69-70; Young: 143-45, 194, 210, 220, 225; Swann: 378, 380-81, 418; Doctor Robert Kurtz: 834-44.
Young took out his badge and his gun. Rodriguez: 76-77; Young: 144-47, 225; Swann: 380, 419-20. He advanced across the street, identified himself as an off-duty police officer, and ordered the men to stop. Rodriguez: 71, 76-77; Young: 144-47, 210-12, 216, 225; Brown: 364, 366-67; Swann: 382, 418, 420. The men shot at Young, and Young returned fire. Rodriguez: 77, 101; Young: 147-49, 161, 194, 211-17, 219-20, 225-26; Swann: 382-84, 420-21, 424-25. Young was not hit, but he thought he had hit one or both of the perpetrators. Young: 213, 215, 226; Swann: 421. The men fled down Carroll Street toward Ford Street, got into a burgundy Maxima with tinted windows, custom rims, and out-of-state license plates, and drove away. Rodriguez: 100; Young: 149-50, 159-62, 226-28, 232; Swann: 384; Frances Waldrop: 466-70, 472, 475-76. Before entering the car, one of the men said that he was hit. Waldrop: 467-68. That man got into the front passenger seat; the other man got into the rear passenger seat. Waldrop: 467-68, 470-72.
At approximately 2:30 P.M., Petitioner walked into Kings County Hospital with a gunshot wound to the leg and was taken to the emergency room. Colleen Boston: 339-45, 349. Detective Charles Arnao was assigned to interview the gunshot victim at Kings County Hospital. Arnao: 557-60. Detective Arnao knew that there had been a shooting on Carroll Street, but did not know that Petitioner had been involved in that shooting. Arnao: 557-58, 568. Detective Arnao identified himself to Petitioner and asked him what happened. Arnao: 565-66. Petitioner said he was at his friend Richie's house. Arnao: 566. Detective Arnao inquired as to Richie's last name. Arnao: 566. Petitioner said he did not know. Arnao: 566-67. Detective Arnao asked for Richie's address. Arnao: 566-67, 583. Petitioner again said he did not know. Arnao: 566-67, 583.
When asked how he had been shot, Petitioner said he was in the area of Avenue J and Remsen Avenue, when he saw a group of males wearing blue bandanas. Arnao: 566-67, 582-83. Petitioner said he heard a gunshot and felt a burning sensation in his leg. Arnao: 566-67, 582-83. Petitioner also said that if Detective Arnao went to the location, he would find a shell casing on the ground. Arnao: 566-68, 580. Detective Arnao asked Petitioner what type of gun it was. Arnao: 566. Petitioner did not answer the question; instead, Petitioner said he was tired, turned his head, and closed his eyes. Arnao: 566-68, 587-88. Detective Arnao did not ask Petitioner any other questions and left the room. Arnao: 568, 572, 587-88.
Detective Michael Routledge was notified of the shooting at 2:25 p.m., and arrived at the crime scene approximately five minutes later. Routledge: 486-87. Detective Routledge saw medical personnel load Moore in the ambulance and take Moore to Kings County Hospital. Moore: 52; Routledge: 488. Detective Routledge interviewed a number of witnesses, including Detective Young. Routledge: 488-89, 518-19. Detective Routledge was then notified that a male fitting the description of one of the perpetrators had just walked into Kings County Hospital with a gunshot wound. Routledge: 491-92, 542.
Detective Routledge drove Young to Kings County Hospital for a show-up. Young: 162-65, 240-41, 246-49, 334-36; Routledge: 492-94, 517, 529. At the hospital, Detective Routledge arranged a show-up in which Moore and Detective Young viewed Petitioner. Moore: 52-53; Routledge: 497-500, 525, 528, 533-34. Moore said that he was 60-65 percent sure that Petitioner was one of the men who had attacked him. Moore: 53-55. Detective Young said that he was 100 percent sure that Petitioner was one of the men with whom he had exchanged fire. Young: 164-71, 249-60; Routledge: 529.
Detective Routledge placed Petitioner under arrest and learned Petitioner's home address. Routledge: 505. Detectives went to Petitioner's house and located the burgundy Maxima, which was owned by Petitioner's mother. Trial Tr. at 38-39 (Stipulation); Routledge: 506; Detective Richard Lyman: 625-27. There were what appeared to be blood stains on the front passenger seat. Routledge: 506-08; Lyman: 627-28. A few months prior to the shooting, Police Officer Tancredi had approached Petitioner in the car because of loud music that was coming from the car, at which point Petitioner identified himself as the car's owner. Tancredi: 734-36. The police obtained a warrant to search the vehicle. Routledge: 508. Detective John Entenmann found blood on the front passenger seat, on the center console, and in the passenger well area of the front seat. Entenmann: 697-98, 702-03. Detective Entenmann photographed the blood stains, swabbed the area, and forwarded the swabs to the medical examiner's office. Entenmann: 698-700, 702-05, 724-25. Forensic experts determined that the DNA of the blood on the front passenger's seat matched Petitioner's DNA, with odds that the blood was not Petitioner's estimated at one trillion to one. Detective Daniel McClean: 632-36, 640; Asako Ishii: 980-81, 1002-21.
Police also took possession of Petitioner's clothing as he entered the hospital. Detective Anthony D'Amato: 1030-38, 1049-50; Officer Richard Silverstein: 1083-84, 1090-91. They observed blood on Petitioner's T-shirt and jeans, possible bullet holes in each item, and a .45 caliber shell casing. Silverstein: 1103-07, 1114; D'Amato: 1034, 1049-50, 1053-55, 1065. A forensic analyst later observed lead residue, consistent with bullet holes, in the holes in Petitioner's clothing. Carol Myers: 936-51. Police also collected thirteen bullet casings from the crime scene, including six .45 caliber shell casings, which a ballistics analyst determined all came from the same gun, as well as seven nine millimeter shell casings, six of which came from a standard police-issued firearm and the remaining of which came from a third, unknown firearm. Detective David Rivera: 886-97, 902-13; Detective James Valenti: 798-826.
The jury found Petitioner guilty of attempted murder, attempted...
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