Metts v. Miller, 96-CV-4191(RR)(RML).

• Decision Date: 12 December 1997
• Docket Number: No. 96-CV-4191(RR)(RML).,96-CV-4191(RR)(RML).
• Parties: Raynard METTS, Petitioner, v. David MILLER, Superintendent, Eastern Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

Page 283

995 F.Supp. 283

Raynard METTS, Petitioner, v. David MILLER, Superintendent, Eastern Correctional Facility, Respondent.

No. 96-CV-4191(RR)(RML).

United States District Court, E.D. New York.

December 12, 1997.

Raynard Metts, Napanoch, NY, pro se.

Charles J. Hynes, Kings County District Attorney by Roseann B. MacKechnie, Ann Bordley, Phyllis Mintz, Brooklyn, NY, for Respondent.

ORDER

RAGGI, District Judge.

This court has reviewed the report of Magistrate Judge Levy and petitioner's objections thereto received December 8, 1997. The court finds, for the reasons stated by the magistrate judge, that Mr. Metts' petition must be denied. The court disagrees with petitioner's contention that a hearing is necessary re: the unavailability of witness Lisa Mena to the defense at trial. The trial court's instruction to the jury re: Mr. Mena's statement to the police and her failure to identify Mr. Metts in a line-up sufficed to ensure that this witness's unavailability at trial. Thus, for this and the other reasons stated in this report, the petition for a writ of habeas corpus is denied as is a certificate of appealability.

So Ordered.

REPORT AND RECOMMENDATION

LEVY, United States Magistrate Judge.

Petitioner pro se brings this action pursuant to 28 U.S.C. § 2254(a) for a writ of habeas corpus. By order dated March 18, 1997, the Honorable Reena Raggi, United States District Judge, referred this matter to me for a report and recommendation. For the reasons set forth below, I respectfully recommend that the petition be denied.

BACKGROUND

In 1989, the Kings County District Attorney charged petitioner, under Indictment Number 296/89, with two counts of murder in the second degree (N.Y.Penal §§ 125.25(1) and (2)), one count of criminal possession of a weapon in the second degree (N.Y.Penal § 265.03), one count of criminal possession of a weapon in the third degree (N.Y.Penal § 265.02(4)), and one count of reckless endangerment in the first degree (N.Y.Penal § 120.25). The jury trial commenced November 13, 1989 in New York Supreme Court, Kings County, before the Honorable Michael R. Juviler.

At trial the prosecution alleged that on January 1, 1989, petitioner, acting in concert with two other men, fired numerous shots at the door of 121 Clermont Avenue in Brooklyn causing the death of Doris Smith. (Trial Tr. 19-27.)¹ According to the prosecution, the three men believed that Doris Smith's son, David Smith, who also lived at 121 Clermont Avenue, had raped their friend Sandra Bridgette. (Id. at 23-24.) The prosecution's key witnesses were Sandra Bridgette and David Smith.

Ms. Bridgette, a cooperating witness who was twenty-three years old at the time, testified that she had known petitioner all her life. (Id. at 374-75) Ms. Bridgette stated that on December 31, 1988, she and an acquaintance named David Smith were smoking crack cocaine in Mr. Smith's bedroom at 121 Clermont Avenue. (Id. at 383-87.) At approximately midnight, Ms. Bridgette was attempting to leave the apartment (id. at 388) when Mr. Smith allegedly choked her, put a knife to her throat, and sexually assaulted her. (Id. at 390-92.) According to Ms. Bridgette, she then ran outside, met her friend Dennis Martin, and told him of the alleged assault. (Id. at 395-96.) Ms. Bridgette testified that immediately upon hearing her account of the incident, Mr. Martin left and returned fifteen minutes later with two men whom Ms. Bridgette knew to be Mr. Martin's friends: petitioner and a person named "Reggie." (Id. at 396-98.) Ms. Bridgette said that she then led the three men to David Smith's house, where Mr. Martin knocked on the door. (Id. at 398-402.) Immediately after Mr. Martin knocked on the door, Ms. Bridgette testified that the lights in the house went out, and she heard petitioner tell her to "move," after which he allegedly said "Fuck it man. Let's blast the place." (Id. at 402.) Ms. Bridgette stated that she then ran across the street, stopped, turned back around, and witnessed "Raynard, Reggie and Dennies [sic] shooting at the house." (Id. at 405.) She testified that she heard "a number of shots" (id. at 406) and specifically saw petitioner, who was standing approximately seventeen feet from the front door, point his gun at the house. (Id. at 405, 409.)

Mr. Smith denied Ms. Bridgette's accusation concerning the assault, but admitted to having smoked crack cocaine with Ms. Bridgette on December 31, 1988. Mr. Smith testified that, at his mother's request, he had asked Ms. Bridgette to leave, whereupon she became agitated and threatened that Mr. Smith would "pay for this." (Id. at 201). Approximately two hours later, Mr. Smith allegedly heard a "loud knocking" on the front door of the house. (Id. at 203). He testified that he looked out of a window to see who was knocking and saw "three male blacks," including petitioner, in front of the house. (Id. at 204-211.) Mr. Smith stated that his mother, Doris Smith, went to the front door and said "[h]e's not here," after which Mr. Smith heard "multiples of shots" and observed bullets going through the door and his mother falling to the floor. (Id. at 214-17.) Mr. Smith identified petitioner in a police line-up on January 4, 1989. (Id. at 221-22.)

The prosecution also called as witnesses David Smith's brother and sister, Robert Smith and Peggy Smith, who testified that they heard gunshots but were unable to see the faces of the persons in the yard the night of the incident. (Id. at 95-96, 145-47.) In addition, the prosecution called two New York City police detectives and one New York City Housing Authority police officer who had conducted an investigation of the crime (id. at 39-48, 53-86, 534-42), a ballistics expert (id. at 545-67), and the medical examiner who performed the autopsy on Doris Smith's body. (Id. at 335-67.)

The defense called one witness, New York City Police Detective Jose Nieves, who testified that on January 4, 1989 a number of people, including a witness named Lisa Mena, had viewed a police line-up at the eighty-eighth precinct in Brooklyn containing six men, including petitioner. (Id. at 583-84.) Lisa Mena's name was included on the prosecution's witness list and, before the prosecution rested its case, the Assistant District Attorney had represented to the court that he planned to call Lisa Mena to testify.² However, the prosecution later informed the court that Ms. Mena had failed to appear and that its efforts to locate her had been unsuccessful.³

Upon learning that Ms. Mena would not be testifying at trial, defense counsel moved to dismiss the indictment "based upon the failure to provide Brady material." (Id. at 610.) At sidebar, defense counsel explained that the prosecution had provided a copy of a police report indicating that this witness had "seen a male with a gun enter the yard" on the night of the shooting but had failed to identify petitioner in the police line-up. (Id. at 608-09.) The witness's name and address had been redacted from the police report. (Id. at 608.) Defense counsel maintained that he had previously asked the prosecution for the names of all witnesses who had failed to identify petitioner in the police line-up, and the Assistant District Attorney had assured the court that all such witnesses would be called to testify at trial. (Id. at 577.) Based on that representation, defense counsel apparently opted not to bring a pre-trial motion to compel disclosure of Ms. Mena's name and address. (See id. at 576-77.)⁴ Defense counsel thus argued that, in refusing to disclose Ms. Mena's name and address before trial, the prosecution had withheld "exculpatory information." (Id. at 574-75, 608-09.)

The court denied defense counsel's application, as well as defense counsel's request for a missing witness charge. (Id.) Instead, the court instructed the jury⁵ (1) on the content of Ms. Mena's statement to the police,⁶ and (2) that Ms. Mena did not identify petitioner in a police line-up. (Id. at 611-13.)⁷

The jury found petitioner guilty of murder in the second degree (N.Y.Penal § 125.25(2)) and not guilty on the remaining counts. (Id. at 820.) On December 11, 1989, the court sentenced defendant to a term of imprisonment of twenty-three and one-half years to life. See People v. Metts, Ind. No. 296/89, Decision and Order Denying Motion to Vacate Judgment at 1 (Kings County Aug. 10, 1995).

On December 3, 1990, petitioner, represented by counsel, perfected his appeal by filing a memorandum of law with the Appellate Division, Second Department ("Appellate Division"). On May 21, 1990, petitioner filed a pro se supplemental brief with the Appellate Division. In his appeal, petitioner argued that (1) the court denied him a fair trial by neglecting to conduct a hearing to determine if Lisa Mena possessed exculpatory evidence; (2) the police denied him assistance of counsel during his police line-up; (3) the evidence of his guilt was legally insufficient and against the weight of the evidence; and (4) his sentence was unduly harsh and excessive.

By memorandum and order dated June 8, 1992, the Appellate Division unanimously affirmed the judgment against petitioner. People v. Metts, 184 A.D.2d 592, 584 N.Y.S.2d 644 (2d Dep't 1992). The court found unpreserved for appellate review petitioner's claim that the trial court should have conducted a hearing to determine whether Lisa Mena's testimony would have provided exculpatory evidence because defendant had failed to request such a hearing and had agreed to an instruction that the court then read to the jury concerning Ms. Mena's potential testimony. Id. at 645. The court also held that the verdict was not against the weight of the evidence, the sentence imposed was not excessive, and defendant's other contentions were without merit. Id.

By letter dated June 22, 1992, petitioner sought leave to appeal to the New York Court of Appeals, again arguing that the trial court should have conducted a hearing to determine whether ...