John v. New York

Decision Date26 August 2013
Docket Number12 Civ. 1944 (CM)(JCF)
PartiesGARRICK GIDEON JOHN, Petitioner, v. STATE OF NEW YORK, Respondent.
CourtU.S. District Court — Southern District of New York

REPORT AND RECOMMENDATION

TO THE HONORABLE COLLEEN McMAHON, U.S.D.J.:

Garrick Gideon John,1 proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for one count each of conspiracy in the second and fourth degrees, two counts of attempted murder in the second degree, two counts of assault in the second degree, two counts of criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree. Mr. John contends that: (1) his right to due process was violated because he was not present during every stage of the trial; (2) the admission of hearsay testimony about uncharged acts violated his right to due process and to a fair trial; (3) the trial courtviolated his right to testify in his own defense when the prosecution was allowed to impeach him with evidence of prior crimes; (4) he received ineffective assistance of trial counsel; (5) his right to a fair trial was violated when he was unable to impeach an adverse witness' hearsay statements with prior inconsistent testimony; (6) the imposition of consecutive sentences violated his right to trial by jury; (7) he received ineffective assistance of appellate counsel; and (8) his right to due process and a fair trial were violated when prosecutors knowingly used false testimony. For the reasons set forth below, I recommend that the petition be denied.

Background
A. The Crimes

Garrick John acted as an enforcer, supplier, and seller for a marijuana trafficking organization in the East Village in the early 1990's. He procured marijuana from Florida that was sold out of a West Indian Restaurant run by his co-defendant and friend Ernie Isaac, known as "Big Nose." (Tr. at 274, 279-85, 1304).2 Mr. Johnand Big Nose3 fought with a rival marijuana drug gang run by Andre Pierre Louis, known as "Terry" or "Fingers." (Tr. at 1389-97). The charges against Mr. John arose out of a series of violent altercations with Fingers and his associates, which resulted in Fingers' death.

Specifically, Mr. John was charged with fourth-degree conspiracy to possess and sell marijuana; second-degree conspiracy to murder Fingers; second-degree murder for the killing of Fingers on February 27, 1993, as well as second- and third-degree criminal possession of a weapon in connection with that alleged murder; second-degree assault against another member of the rival gang, Martin Fritsche, known as "Goldie," who was shot and injured in the February 27 incident; attempted murder of Fingers in connection with a shooting on April 24, 1991, as well as second- and third-degree criminal possession of a weapon and second-degree assault in connection with that incident; second-degree assault for the shooting of rival gang member Pius Oculi, also known as "Pius Henry," in that same April 24 incident; attempted murder in connection with the shooting of rival gang member Peter Brian Nelson, also known as "Jolly," on April 26, 1991, as well as second- and third-degree criminal possession of a weapon inconnection with that incident; and attempted murder in connection with the shooting of Jolly on July 4, 1991, as well as second- and third-degree criminal possession of a weapon in connection with that incident. (M. at 5-10; Tr. at 1827-55).

A jury convicted Mr. John of the drug conspiracy, the conspiracy to murder Fingers, the attempted murder of Fingers on April 24 and its associated counts; the assault on Pius; and the attempted murder of Jolly on April 26 and its associated counts. (Tr. at 1917-21). He was found not guilty of the remaining counts -- the murder of Fingers and associated counts, including the assault on Goldie, and the attempted murder of Jolly and associated counts.

B. Relevant Pretrial and Trial Proceedings
1. Molineux and Sandoval Hearings4

The prosecution sought to introduce testimony from Duvean Lewis, Mr. John's former girlfriend (Tr. at 258-59), regarding uncharged crimes. Ms. Lewis had been involved with Mr. John intransporting marijuana from Florida to New York and dealing marijuana on the streets of the East Village. (Tr. at 274, 279-85). She was also involved in the events leading up to the killing of Fingers on February 27, 1993 -- indeed, Ms. Lewis was indicted as an accomplice in the murder of Fingers, but she entered into an agreement in which she pled guilty to second-degree murder with the proviso that she could withdraw that plea and plead to a leaser charge if she cooperated with the prosecution. (M. at 10-11; Tr. at 261-63, 331-50). The prosecution argued that various uncharged crimes should be admitted to explain Ms. Lewis' relationship with Mr. John, her participation in the marijuana business, and the reasons she left Mr. John and cooperated with the police. (M. at 3, 10-11, 34-35, 37-41).

The trial judge ruled that evidence of certain uncharged crimes and prior bad acts was admissible. As relevant here, he allowed testimony that Mr. John had (1) solicited Ms. Lewis to testify falsely on his behalf and later threatened to kill her because she refused; (2) kidnapped a friend of Ms. Lewis'; and (3) fired shots at Ms. Lewis' car when her sister was driving. (Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("Resp. Memo.") at 44; Tr. at 394-96, 403-06, 753-54). The court also ruled that testimony about a 1990 incident in which Mr. John allegedly attempted to kill Fingers wasadmissible, not under Molineux, but because it was "directly related to the allegation[s] in th[e] indictment." (M. at 27-29, 49). After the testimony was elicited at trial, the judge informed the jurors that it was admitted as "background" so that they could "put things in context." (Tr. at 408-09).

The prosecution requested, pursuant to Sandoval, permission to impeach Mr. John, should he testify in his defense, by asking about a number of prior crimes and alleged crimes, including the 1990 shooting of Fingers and a carjacking in Florida to which he had pled guilty. (V.D. at 159-62). The prosecution specifically disavowed seeking to impeach Mr. John by asking about a carjacking in Queens for which his conviction had been overturned on appeal. (V.D. at 160-61). Over the petitioner's objection (V.D. at 163-64), the court ruled that certain of these alleged crimes were fair game for cross-examination. As relevant here, the court ruled that "he can be asked about the 1990 alleged shooting of [Fingers]" and "about whether he forcibly stole an automobile at gunpoint," but that the word "carjacking" could not be used. (V.D. at 166).

2. Trial5

Mr. John's counsel conceded the petitioner's involvement in the charged marijuana conspiracy. In his opening statement, defense counsel stated, "[M]y client was involved in selling marijuana back in the early 90's." (Tr. at 55). He also told the jury that "while the evidence will show, and I'm not contesting this, that my client was involved in marijuana sales and delivering marijuana, I submit to you the evidence will be insufficient to prove that he was involved in the rest of the counts." (Tr. at 64). Similarly, trial counsel conceded in summation that Mr. John was involved in the marijuana conspiracy but argued that he did not commit any of the violent crimes in the indictment. (Tr. at 1656-57).

In its case-in-chief, the prosecution sought to introduce plea minutes from Mr. John's co-defendants, who were also charged in the marijuana conspiracy, to prove the conspiracy count. (Tr. at 1292-1300). Defense counsel objected to the introduction of the plea minutes of alleged co-conspirators Michael Stafford and Phillip Mathias, which suggested that violence had been used in furtherance of the conspiracy, arguing that the statements'prejudicial effect outweighed their probative value. (Tr. at 1292-97, 1300-02, 1454-57). The court allowed the statements. (Tr. at 1298-99, 1302, 1458-60). Thus, the jury heard that Mr. Mathias had admitted that members of the trafficking organization "[p]ossessed firearms for the purpose of protecting the interest of the organization" and "[t]hreatened to injure or kill and did injure and kill those who were believed to threaten the interest of the organization" (Tr. at 1469-71) and that Mr. Stafford had admitted that members of the trafficking organization had: (1) obtained, transported, and delivered marijuana for sale; (2) packaged marijuana for sale; (3) sold marijuana; (4) "[p]ossessed firearms for the purpose of protecting the interest of the organization"; or (5) "[t]hreatened to injure or kill and did injure and kill those who were believed to threaten the interest of the organisation" (Tr. at 1471-72).

During the trial, Pius and Goldie testified about the shooting on the night of April 24, 1991. Pius asserted, first, that it was too dark to see who had shot him. (Tr. at 1155, 1166-67, 1179-80). After he testified, however, he told the prosecutor that he had lied about that fact because he was afraid. (Tr. at 1224-25). The judge allowed the prosecution to recall him to testify. (Tr. at 1228, 1233). He then testified that it was bright enough to see who shot him on that night, and that the shooter was Mr. John.(Tr. at 1234-35). On cross-examination, Pius admitted that he had twice told the police that it was too dark to identify the shooter. (Tr. at 1236-37, 1239-40). Although Pius asserted he did so because he was scared, the judge instructed the jury to disregard that statement. (Tr. at 1239-40).

Goldie testified that, when the petitioner and another man came to the door of Fingers' store, he was about to buzz them in when Fingers said, "[N]o, no don't buzz it." (Tr. at 1393). The judge sustained the defense's objection, and the prosecutor...

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