Ryan v. Mann

• Decision Date: 12 November 1998
• Docket Number: No. 93-CV-4435 (ARR).,93-CV-4435 (ARR).
• Citation: 73 F.Supp.2d 241
• Parties: Robert RYAN, Petitioner, v. Louis MANN, Superintendent, Shawangunk Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

73 F.Supp.2d 241

Robert RYAN, Petitioner, v. Louis MANN, Superintendent, Shawangunk Correctional Facility, Respondent.

No. 93-CV-4435 (ARR).

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

November 12, 1998.

COPYRIGHT MATERIAL OMITTED

Vivian Shevitz, Mt. Kisco, NY, for petitioner.

Marcia R. Lombardo, Suffolk County District Attorney's Office, Riverhead, NY, for respondent.

OPINION AND ORDER

ROSS, District Judge.

Petitioner Robert Ryan was tried by a jury and convicted of Robbery in the First Degree. On November 10, 1986, Ryan was sentenced to a term of imprisonment of twelve and one-half (12 ½) to twenty-five (25) years. Pursuant to 28 U.S.C. § 2254, Ryan now brings this petition for a writ of habeas corpus challenging his conviction. For the reasons set forth below, the petition is denied.

I. Factual and Procedural Background

On Sunday, March 16, 1986, two men robbed the Triplex movie theater in Islip, Long Island. Eyewitnesses subsequently identified the petitioner's codefendant Musmacher as one of the perpetrators. When the police arrested Musmacher, he apparently denied participating in the robbery and incriminated the petitioner, who he said had committed the robbery while wearing the maroon leather jacket in which Musmacher was arrested. See Pet. Memo. at 6; Hear. Trans, Sept. 22-23, 1986, at 55-56. Apparently acting upon the codefendant's tip and subsequent positive identifications of the petitioner by eyewitnesses, the police arrested petitioner. See Tr. Trans. at 470-75. Before trial, petitioner made a motion to sever his trial from that of Musmacher. See Hear. Trans. at Sept. 25, 1986, at 64 That motion was denied after the prosecution agreed not to introduce Musmacher's statement unless Musmacher testified.¹ See id.; Tr. Trans. at 635. A motion to suppress the out-of-court identifications and preclude incourt identifications as the product of impermissibly suggestive identification procedures was denied. See Hear. Trans., Sept. 25, 1986, at 63-64.

On September 29, 1986, a jury trial of petitioner and codefendant Musmacher was commenced in Suffolk County Court. The following evidence was established at trial. As Eric Collins, the Triplex assistant manager, locked the outside doors of the theater at approximately 11:05 p.m. after the end of the last screening, two men approached him and stated that their fifteen year-old sister remained inside. See Tr. Trans. at 61-62, 70-71. After a brief conversation, Collins and Michael Norton, a Triplex usher, unsuccessfully searched the theaters and bathrooms for the missing girl. See id. at 70-71, 260-61. When Norton and Collins returned to the lobby, one of the two men, who had entered the theater, pulled out a gun and demanded the theater's money. See id. at 74, 263. The two men forced Collins and Norton at gunpoint into the theater's office, where they compelled Norton to lie on the floor and Collins to open the safe. See id. at 83-84. At that point, the two men emptied the safe, tore the office telephone from the wall, and forced Collins to lie on the floor. See id. at 86-88. After warning Collins and Norton to stay down or they would be shot, the two men left the theater. See id. at 90.

Approximately five minutes elapsed during the entire burglary. See id. at 118, 270. The men stole over three thousand dollars, including about two hundred dollars in rolled quarters. See id. at 85-86. After the two men had left the area, Collins and Norton asked two youths in the parking lot to run to the fire station and alert the police officer usually stationed there to the robbery. See id. at 101. The police arrived at the scene soon thereafter. See id.

Both Collins and Norton provided detailed descriptions of the robbers at trial. While the descriptions differed from each other in some details, they were largely consistent.² Both Norton and Collins made positive, courtroom identifications of both defendants. See id. at 81, 83, 268. Both Collins and Norton testified that they were able to look carefully at both defendants' faces under excellent lighting conditions for substantial periods of time.³ See id. at 77-78, 261-63. Defense counsel did highlight some inconsistencies between Collins's and Norton's descriptions to the police on the night of the robbery and their descriptions at trial, most notably Collins's initial description of the robber identified as Ryan as 5 foot 10 inches tall. See id. at 146-47.

In addition to the two identifying witnesses, the government offered testimony from a theater patron, who saw two men of similar, though by no means identical, description to the defendants loitering outside the theater prior to the robbery and running from the theater after the robbery, see id. at 363-68, a taxi driver who picked up a man of similar, but by no means identical, description to the petitioner from the same street where the codefendant resided at 3:00 am on the night of the robbery, see id. at 442-45, and the theater projectionist, who saw the robbery taking place in the office through a crack in the door at the time described by the eyewitnesses.⁴ See id. at 388-89. However, none of these witnesses could positively identify either of the defendants at trial. See id. at 374-75, 416, 444.

As its final witness, the government called an investigating officer, Detective Anthony Laghezza, to testify regarding the circumstances of the arrest of codefendant Musmacher. In particular, Detective Laghezza revealed that, during the arrest, he and Detective Gerald P. Fanning removed a maroon leather jacket containing seven rolls of quarters in the jacket pocket from the codefendant's person. See id. at 468-69. A previous witness, theater owner Michael Westley, had identified the rolls of quarters as identical in appearance to the rolls stolen from the theater, though he admitted that all rolls of quarters obtained from the theater's bank might look the same. See id. at 238, 244-45. Detective Laghezza also testified that, subsequent to Musmacher's arrest, Ryan became a suspect. See id. at 474-76. The prosecution then rested its case.

The first witness called by codefendant Musmacher was Detective Fanning. Upon cross-examination by petitioner's counsel, Detective Fanning was asked why he seized the jacket from Musmacher upon arrest. The following colloquy took place:

Fanning ("F"): Because I had knowledge that it was worn by one of the participants in the robbery.

Counsel ("C"): Was it worn by Musmacher?

F: No.

C: Was it worn by Ryan?

F: Yes.

Id. at 529. Petitioner's counsel then induced Fanning to admit that the coat was a woman's coat. See id. at 531.

On cross examination by the prosecution, the following colloquy took place:

ADA Collins: Did you have any additional information that led you to believe that Ryan was wearing the leather coat at the time of the robbery?

F: Musmacher told me.

Id. at 532. At this point, codefendant's counsel made a motion to strike the question and answer and both codefendant's and petitioner's counsel made motions for a mistrial. All of the motions were denied. See id. at 532-538. On recross examination, petitioner's counsel and Detective Fanning engaged in the following exchange:

C: That's the jacket you think Ryan was wearing when he was supposed to have pulled the job?

F: Can I answer the question?

Court: Yes.

F: That's the jacket Musmacher told me that he was wearing.

Id. at 539-40. Upon a question from petitioner's counsel, Detective Fanning admitted he had not tape-recorded the conversation with Musmacher, see id. at 540, though on re-cross, the government established that Fanning recorded the contents of the conversation in a written report. See id. at 542.

On the next day of testimony, after a weekend recess, the court informed the parties that it had made a mistake in admitting testimony regarding defendant Musmacher's statements incriminating the petitioner. As a result, the court issued a curative instruction to the jury, instructing them that "during the course of cross-examination of the witness, Detective Fanning, a question was asked, `Did you have any additional information that led you to believe that Ryan was wearing a leather coat at the time of the robbery?' by Mr. Collins, the Assistant District Attorney. Upon reconsideration, I determined that that question was objectionable, and any answer concerning that is not part of the competent evidence in the case and should not be considered by you for any purpose." Id. at 641. Moreover, during the jury charge, the court further instructed the jury that it "is to disregard any reference made during the testimony of Detective Fanning as to anything that the defendant Musmacher may or may not have said." Id. at 775.

Both defendants introduced alibi evidence. However, the petitioner's alibi witness, Steve Tortomas, appeared to testify at one point that he was with petitioner between 8:30 p.m. and 9:00 p.m. and then again after midnight and at another point that he was with the petitioner continuously between 8:30 p.m. and after midnight. See id. at 585, 589-90. As a result, in his closing statement, petitioner's counsel acknowledged that Tortomas had contradicted himself. See id. at 685. In the government's closing, ADA Collins reiterated that Ryan became a suspect after the arrest of Musmacher and described the maroon leather jacket as "the jacket to which (sic) has been much referral." See id. at 723-25.

On November 10, 1986, after requesting and receiving read-backs of the testimony of Tortomas, the taxi driver, a witness related to the codefendant's alibi, and Detectives Laghezza and Fanning,⁵ the jury convicted the petitioner of Robbery in the First Degree. See id. at 790. Petitioner was sentenced to a term of imprisonment of twelve and a half (12½) to twenty-five (25) years. See Sent. Hear. at 8. In his direct appeal to the Appellate Division, petitioner contended that (1) the admission of codefendant Musmacher's statement violated...