McPherson v. Greiner
| Decision Date | 22 October 2003 |
| Docket Number | 02 Civ. 2726 (DLC) (AJP). |
| Parties | BRAD McPHERSON, Petitioner, v. CHARLES GREINER, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Brad McPherson, pro se, seeks a writ of habeas corpus from his June 16, 1998 conviction in Supreme Court, New York County, of third degree criminal possession of stolen property and seven counts of fourth degree criminal possession of stolen property, for which he was sentenced to fifteen years to life imprisonment on the third degree criminal possession of stolen property conviction as a discretionary persistent felony offender, and concurrent terms of two to four years imprisonment on the fourth degree criminal possession convictions as a second felony offender.
McPherson's federal habeas petition, as amended, alleges that: (1) he was arrested without probable cause and subjected to an unreasonable search and seizure (Dkt. No. 1: Pet. ¶ 12(A) & Mem. at 1-3), and the evidence obtained through the illegal arrest should not have been admitted (Pet. ¶ 12(B)); (2) the judge improperly relied on "bias evidence" in imposing sentence, failed to take into account McPherson's non-violent history (Pet. ¶ 12(C) & Mem. at 3), and the sentence was excessive for a non-violent offense (Pet. ¶ 12(D)); (3) McPherson's conviction violated Apprendi because (a) the indictment did not state that his sentence could be enhanced under the Persistent Felony Offender statute, and (b) the judge, rather than the jury, decided based on McPherson's history and character whether to sentence him as a persistent felony offender (Pet. ¶ 12(D)); (4) the State altered or destroyed evidence and failed to preserve the chain of custody (Pet. Mem. at 3; Dkt. No. 5: Am. Pet. ¶ 12(C)); (5) certain jurors were biased against McPherson (Pet. Mem. at 3; Am. Pet. ¶ 12(A)); (6) the trial court should not have accepted a "partial verdict" (Pet. Mem. at 3; Am. Pet. ¶ 12(B)); (7) a mistrial should have been declared when a juror saw McPherson in handcuffs (Am. Pet. ¶ 12(B)); and (8) trial counsel rendered ineffective assistance by (a) not challenging certain allegedly biased jurors; (b) not requesting a mistrial when a juror saw McPherson in handcuffs; (c) failing properly to object to the partial verdict; (d) not objecting to the State's evidence tampering; (e) failing to investigate; and (f) failing to object, on Apprendi grounds, to the enhancement of McPherson's sentence under the Persistent Felony Offender statute (Am. Pet. ¶¶ 12(D)-(E)).
This Report and Recommendation will analyze all of McPherson's claims except his Apprendi-related claims, which will be addressed in a separate Report and Recommendation. For the reasons set forth below, McPherson's habeas claims addressed herein should be DENIED.
On January 16, 1997, McPherson was arrested in Manhattan for possessing a stolen bicycle and two bags of property. (E.g., Dkt. No. 15: King Aff. Ex. B: McPherson 1st Dep't Br. at 3.)1 McPherson was indicted for second degree burglary, third degree criminal possession of stolen property, seven counts of fourth degree criminal possession of stolen property, third degree grand larceny, and seven counts of fourth degree grand larceny. (See Dkt. No. 13: Trial Transcript ["Tr."] 145-46.)
The trial court (Justice Bernard Fried) held a Mapp-Huntley suppression hearing on July 22, 1997. (See Dkt. No. 12: 7/22/97 Hearing Transcript ["H."].) Police Officer Austen Zivec testified at the hearing, as follows:
At about 3:00 p.m. on January 16, 1997, Officer Zivec was on plainclothes patrol with Sergeant Mark Eddington and Officer Larry Dougherty in an unmarked police car, when Officer Zivec spotted McPherson approaching a bus stop at West 79th Street and Riverside Drive. (Zivec: H. 6-8, 28-29.) Officer Zivec, a self-described "bicycle buff," noticed McPherson was pushing an expensive mountain bicycle and had a red bag and a black bag slung around his neck. (Zivec: H. 8-9, 29.) Officer Zivec thought it "very unusual" that both the front and rear brake harnesses were disconnected, because it rendered the brakes inoperable and indicated that McPherson was unfamiliar with the bicycle. (Zivec: H. 9-10, 30, 35.)
Officer Zivec got out of the car, displayed his shield, identified himself as a police officer, and asked McPherson, "`Do you mind if I ask you a few questions?'" (Zivec: H. 10, 31.) McPherson said he had "no problem with that." (Zivec: H. 10-11.) Officer Zivec asked McPherson what type of bicycle it was, to which McPherson pointed at the "mid column" and said, "`It says it right here.'" (Zivec: H. 11.) This seemed unusual to Officer Zivec because, in his experience, a person buying such an expensive bicycle would know what type it was. (Zivec: H. 11.) Given that the brakes were disconnected and McPherson could not identify the type of bicycle, Officer Zivec thought that the bicycle did not belong to McPherson and possibly was stolen. (Zivec: H. 13.)
Officer Zivec also noticed a "mountain bike pass" affixed to the bicycle. (Zivec: H. 13.)2 Zivec asked McPherson if he knew what the pass was for; McPherson responded that he did not, explaining that two weeks earlier he had lent the bicycle to his cousin. (Zivec: H. 13-15, 36.) However, the pass was dated September 29th, almost four months earlier, and that discrepancy increased Officer Zivec's suspicion that the bicycle was stolen. (Zivec: H. 14-15.)
Officer Zivec next asked McPherson where he was coming from, and McPherson responded that he was coming from his cousin's apartment at 875 Amsterdam Avenue, where he had gone to pick up some clothing and a radio to bring to his cousin at Columbia Presbyterian Hospital. (Zivec: H. 15-16, 43.) Officer Zivec knew that 875 Amsterdam Avenue was at least eleven blocks uptown, and that Columbia Presbyterian Hospital was even farther uptown at 168th Street, and it seemed strange that McPherson would have traveled downtown to 79th Street and Riverside on his way uptown to the hospital. (Zivec: H. 15-16, 43.) Officer Zivec therefore asked McPherson "if he would mind taking a ride" with the officers to 875 Amsterdam Avenue so that they could verify his story, and McPherson agreed. (Zivec: H. 16, 42-45.) At this point, McPherson was not under arrest, and he was free to refuse to go with the officers. (Zivec: H. 42-44.)
As they drove up Amsterdam Avenue, Officer Zivec asked McPherson to point out 875 Amsterdam Avenue when they reached it. (Zivec: H. 17.) As they passed the building, McPherson did not recognize it. (Zivec: H. 17.) The officers then drove around the block and parked directly in front of 875 Amsterdam Avenue, but still McPherson did not recognize the building as his cousin's. (Zivec: H. 17.) When Officer Zivec asked McPherson his cousin's apartment number and the name of the building manager who had let him into the apartment, McPherson replied that he did not remember. (Zivec: H. 17.)
At that point, believing that the property in McPherson's possession was stolen, Officer Zivec placed McPherson under arrest. (Zivec: H. 17.) Along with the bicycle, Officer Zivec recovered "a ton of property" from the bags McPherson was carrying. (Zivec: H. 18-19.)3 Using passports and a business card found in the bags, Officer Zivec determined that the property had been stolen that day from the apartment of a married couple, Laura Dedominicis and Scott Whitehouse, while they were at work. (Zivec: H. 20, 37-39.)
At the precinct, after being read his Miranda rights, McPherson told police that he had found the property, and that the keys in his jacket were his own. (Zivec: H. 20-26, 40.)
At the conclusion of the hearing, Justice Fried denied the motion to suppress the physical evidence and the statements McPherson made at the scene prior to being arrested and at the precinct after having been read Miranda warnings. (H. 52-55.)
On April 15, 1998, after trial, Justice Fried issued a formal written decision explaining his prior decision from the bench finding that the police had probable cause to arrest McPherson and that the property should not be suppressed:
Here, from the initial encounter to the time of the arrest, the escalating levels of permissible inquiry were appropriately based upon the increasingly implausible and patently untruthful answers given by the defendant. First, the unusual condition of the bike justified the approach of Officer Zivec to inquire about the brakes. . . . This unusual state of the brakes, visible to the officer, provided a credible basis to approach the defendant. Second, the defendant's apparent lack of knowledge about the make of the bike, the inability to adequately account for the bike pass, coupled with the defendant's conflicting account of his activities gave rise to a founded suspicion that criminal activity was afoot. Thereafter, the defendant's failure to identify the residence of his cousin when parked directly in front of 875 Amsterdam and the defendant's inability to identify the apartment number are thoroughly incompatible with the defendant's contention that he just left the residence. Those omissions, combined with the totality of the other circumstances, provided Officer Zivec with probable cause to place the defendant under arrest.
Accordingly, for the foregoing reasons, the motion [to suppress the property] is in all respects, denied.
At trial, Officer Zivec and Sergeant Eddington described the events leading up to their arrest of McPherson, essentially repeating Officer Zivec's testimony from the suppression hearing. (Dkt. No. 13:...
To continue reading
Request your trial