Richardson v. Supt. of Mid-Orange Corr. Facility

• Decision Date: 03 August 2009
• Docket Number: No. 03 CV 2061 (SJ).,03 CV 2061 (SJ).
• Citation: 639 F.Supp.2d 266
• Parties: Jermaine RICHARDSON, Petitioner, v. SUPERINTENDENT OF MID-ORANGE CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Eastern District of New York

639 F.Supp.2d 266

Jermaine RICHARDSON, Petitioner, v. SUPERINTENDENT OF MID-ORANGE CORRECTIONAL FACILITY, Respondent.

No. 03 CV 2061 (SJ).

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

August 3, 2009.

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Jermaine Richardson, Mid-Orange Correctional Facility, Warwick, NY, pro se.

Charles J. Hynes, Esq., Kings County District Attorney, by Leonard Joblove, Esq., Shalom J. Twersky, Esq., Assistant District Attorneys, Brooklyn, NY, for Respondent.

MEMORANDUM AND ORDER

JOHNSON, Senior District Judge:

Jermaine Richardson ("Richardson" or "Petitioner"), appearing pro se, has petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ("§ 2254"). For the reasons stated below, the petition for habeas corpus is granted.

BACKGROUND

Petitioner Richardson was arrested on October 11, 1990 as he was running from the scene of a crime committed at the corner of Utica Avenue and Montgomery Street in Brooklyn, New York. Richardson and co-defendants Robert Hankins, Joseph Moore, and Dwayne Finch were apprehended following an armed robbery in which three individuals, Denzel Coleman, Raul Ruiz, and Stanford Lambert, were shot and robbed. Coleman was killed by a gunshot to the head. Richardson, Hankins, Moore, and Finch were each charged under Kings County Indictment Number 11452/90 with Murder in the Second Degree, in addition to several counts of robbery, assault, reckless endangerment, and criminal possession of a weapon.

I. Suppression Motions

Prior to trial, the defendants moved to suppress the identification testimony of the People's witnesses, Raul Ruiz and Tacius Pierre-Louis. The trial court held hearings pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). The first hearing, held on December 13 and 17, 1991 ("December Hearing"), was conducted on behalf of Hankins, Moore, and Finch, but neither Richardson nor his defense counsel, Alan Stutman, was in attendance. (Transcript of Pre-trial Hearing of Dec. 13-17, 1991 ("Dec. 13-17 Tr.") at 3.) Accordingly, the hearing court scheduled a separate hearing for Richardson, which took place on February 24 and 25, 1992 ("February Hearing").

First, New York City Police Detective Wesley Creegan testified that he brought four subjects, Petitioner Jermaine Richardson, Robert Hankins, Joeseph Moore, and Dwayne Finch into the emergency room, one at a time, and presented them separately to each of two witnesses. (Id. at 17-18.) Detective Creegan testified that he first presented Richardson to witness number one, who was later identified as Raul Ruiz. (Id. at 19.) The detective testified that "Witness number one attempted to jump off the stretcher he was on, and he stated, `that's the mother fuckin' pussy that shot me in the leg and took my gold.'" (Id.) Richardson was then removed from the room and the next suspect brought in. Creegan testified: "Witness number one at that point was in a lot of pain and had no reaction at all." (Id. at 20.) He further testified that after Richardson was removed from the room, "Witness number one was put back on the stretcher. He was quite obviously in pain. And didn't respond any further after that." (Id. at 21.) "Both were in extreme pain, they were laying on stretchers, they had gunshot wounds. After viewing the first individual, witness number one tried to jump off the gurney, as I had testified to before; he became quite enraged; after which he seemed to succomb [sic] to the pain and really had no other response after that." (Id. at 80-81.) Thereafter, neither witness identified any other suspect in the emergency room. (Id. at 20-21.)

Creegan also testified to a subsequent show-up identification procedure at the police precinct: at approximately 12:55 a.m. on October 12, 1990, Richardson, Moore, and Hankins were put together into an interview room at the 71st Precinct. (Id. at 21-22.) Creegan testified that witness number three, who was later identified as Tacius Pierre-Louis, observed the three defendants through the viewing glass and "stated that the smaller man, male black, which was Mr. Richardson, was one of the male blacks shooting at Montgomery Street. And he made clear that Mr. Moore also looked like the guy that shot the guy in the head." (Id. at 22.) Creegan further testified that a fourth witness also viewed the three subjects: "He indicated that the three individuals in the room were the same, were the friends of the fellow that shot Mr. Coleman in the head." (Id. at 23.) Creegan mentioned a fifth witness who also viewed the three subjects and did not identify anybody. (Id. at 25.) He then described his interview with Hankins, in which Hankins stated that he had ridden in a white Saab to Crown street with Joseph Moore and Jermaine Richardson and had remained in the car. (Id. at 27.). Creegan further testified that at approximately 3:38 a.m. on October 12, he conducted a subsequent identification procedure in which he placed Finch into a line-up with five fillers. (Id. at 28.) Witnesses three, four, and five each separately viewed the line-up. (Id. at 29.) Witness five did not make an identification. (Id. at 30.) Witness four identified Finch as being an individual from the shooting. (Id. at 31.) Witness three, Pierre-Louis, also identified Finch: "That guy shot the guy in the head, number three." (Id. at 32.)

Detective Creegan further testified about events later on October 12, when he returned to the hospital and showed two photo arrays to Ruiz. (Id. at 25.) In the first, he showed photos, one after the other, that included Hankins. (Id. at 26.) Ruiz identified Hankins and wrote on the back of the photo array: "Number two, shooting robbing us." (Id. at 37.) In the second photo array, Ruiz identified a photograph of Finch and wrote: "Number four shooting hood dark hat." (Id. at 38.) Creegan also testified about a photo array that included Joseph Moore's photograph, in which no witness made any identification. (Id. at 40, 111.)

Next, New York City Police Officer Michael J. Devine testified that on October 11, 1990 at approximately 11:10 p.m., he and his partner were sitting in an unmarked police car parked on Crown Street near Utica Avenue. (Id. at 136-37.) He testified that they heard shots, and then pulled the car forward to the intersection of Utica Avenue, where he "observed 4-5 male blacks running north bound on Utica Avenue" toward Crown Street. (Id. at 138.) He observed one person holding a gun, an individual later identified as Dwayne Finch. (Id. at 139.) He observed Finch throw a gun while he was running. (Id. at 142, 181, 185-87.) On cross-examination, he testified that he knew it was Finch who threw the gun because "He was the biggest guy. He was a big guy." (Id. at 187.) Divine testified that he ordered the runners to stop, and two individuals, later identified as Petitioner Jermaine Richardson and Joseph Moore stopped, while another individual kept going. (Id. at 142.) At the time they stopped, they were directly across from a white Saab double parked in the middle of the block. (Id. at 141-42.) After he arrested Richardson and Moore, he observed his partner handcuffing Finch, after Finch had run past the double-parked car. (Id. at 146-47.) He testified that he never lost sight of the four to five running individuals from the time they turned the corner on to Crown Street until three of them were arrested. (Id. at 195.) He testified that he saw one individual continue running who was not apprehended. (Id. at 149, 195.)

Devine further testified that after he arrested Richardson and Moore and his partner apprehended Finch, Devine arrested Hankins, who was seated in the rear of the white Saab. (Id. at 147-48.). The hearing court questioned Devine about why he arrested Hankins. Devine testified: "It looked to me [the other suspects] were running towards the white Saab." (Id. at 173.) He testified that he searched the four individuals at the police station and found and vouchered $243 in cash from Moore and a beeper and bloodstained jacket and other clothing from Finch. (Id. at 151-52.) He also testified that Finch had a gunshot wound to his left hand and that he was taken to a hospital. (Id. at 153.)

At the conclusion of the first Wade hearing, the trial court considered whether there was probable cause for the arrest of Hankins, who was found sitting inside the car, found that there was no probable cause, and suppressed all evidence flowing from the arrest. (Id. at 173, 197-200, 202.) The court also opined: "I think Moore has a shot of beating the case, because that testimony, as I recall it, is that everybody said he was standing there, but nobody saw him do anything." (Id. at 201.) Based on this, the court released Moore on his own recognizance. (Id. at 201). However, the court found the identification testimony admissible: "I have no problems with the identification procedures, as far as they were conducted." (Id. at 206.)

On February 24-25, 1992, the same justice held an abbreviated hearing regarding the identification of Richardson, at which both Detective Creegan and Officer Devine testified again, with minor variations in their testimony. Devine testified that he was patrolling in the 71st Precinct in Brooklyn as part of a plainclothes, anti-crime patrol at about 11:10 p.m. on October 11, 1990, when he heard gunshots. (Transcript of Pre-trial Hearing of February 24-25, 1992 ("Feb. 24-25 Tr.") at 344.) He stated that he looked down Utica Avenue and saw four to five male blacks running. (Id. at 345.) He testified that he chased several individuals and ordered them to stop. (Id. at 346). He further testified that Richardson and another individual stopped when commanded and were apprehended near a white Saab double-parked in the street. (Id. at 346-47, 361-62.) He testified that another officer, his partner, arrested a third...