Smith v. Noeth
| Docket Number | 1:18-CV-00883-JLS-MJR |
| Decision Date | 27 June 2023 |
| Parties | BRIAN SMITH, Petitioner, v. JOSEPH NOETH, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
REPORT, RECOMMENDATION AND ORDER
Brian Smith (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254. (Dkt. No. 1). He challenges the constitutionality of the November 2, 2007 judgment entered in Monroe County Court, New York, following a jury verdict convicting him of first-degree manslaughter (New York Penal Law (“P.L.”) § 125.15) and second-degree criminal possession of a weapon (P.L. § 265.03). For the reasons discussed below, the Court recommends dismissing the petition.
Petitioner's conviction stems from the shooting death of Triston “Munch” Harris (“Harris”) on October 2, 2005, outside a convenience store at the corner of Clifford Avenue and Miller Street in the City of Rochester New York. Although the store's surveillance cameras captured the shooting on videotape, the Rochester Police Department (“RPD”) made no arrests at the time. In fact, the RPD initially suspected that the shooter was Petitioner's associate, Danny Gayden (“Gayden”). But after Gayden spoke to police in January of 2006, the focus of the RPD's investigation turned to Petitioner.
On December 12, 2006, a Monroe County grand jury indicted Petitioner in connection with Harris's death, charging him with second-degree (intentional) murder (P.L. § 125.25(1)) and second-degree criminal possession of a weapon (P.L. § 265.03). At Petitioner's arraignment on March 1,2007, the Monroe County Court (Connell, J.) (the “trial court”) granted the prosecution's request to unseal the indictment. (See 3/01/07 Transcript (“Tr.”) (Dkt. No. 33-3) at 2-3).
Defense counsel filed a motion to suppress the identifications made by five witnesses as the product of unduly suggestive photographic arrays, and the trial court ordered a hearing pursuant United States v. Wade, 388 U.S. 218 (1967). (See 5/17/07 Tr. (Dkt. No. 33-3) at 2).[1] (6/21/07 Tr. (Dkt. No. 33-3) at 3). On June 21, 2007, RPD Investigator James May (“Investigator May”) testified that on various dates in January and March of 2006, he conducted identification procedures with Witness Numbers 2, 3, and 4 (6/21/07 Tr. at 8-9, 12-16, 23-27) and with Monroe County Jail employee Corporal Jason Tripoli (id. at 17-21). Corporal Tripoli and the three civilian witnesses positively identified Petitioner from the photographic arrays they viewed. (Id. at 9, 15, 21, 27). Witness Number 2 said, “he's the one that said he shot the guy at Clifford and Miller.” (Id. at 9). Witness Number 3 stated, ” (Id. at 15). Witness Number 4 pointed to Petitioner's photo and said, “[T]hat's ‘B' right there. ... He did the dude . .. [at]... Clifford and Miller.'” (Id. at 27).
On cross-examination, defense counsel elicited from Investigator May that Witness Number 3 had identified someone else as the shooter at a photo array conducted three days after the shooting. (See id. at 37-45, 47-48, 50-51). Witness Number 3 told Investigator May that she had not been completely truthful during the first photo array because she was afraid of retaliation from members a gang that sold drugs out of a house in the area of the shooting. (Id. at 54-55, 70-71). Defense counsel elicited from Witness Number 3 that Gayden was one of the gang members. (Id. at 72). The Wade hearing concluded on June 21, 2007.[2]
On September 10, 2007, prior to jury selection, the trial court held a Sandoval/ Molineux hearing[3] concerning the prosecution's request to offer (1) evidence regarding Petitioner's prior convictions involving stolen property, drug-possession, and armed robbery; and (2) testimony from Danny Gayden that he and Petitioner, prior to the shooting, had both fired the gun used to shoot Harris at a futon in the basement of Gayden's drug house on Clifford Avenue. (Trial Transcript (“TT”) (Dkt. 33-3): 7-11).
The trial court partially granted the prosecution's Sandoval application, ruling that if Petitioner testified, the prosecutor could cross-examine him about the conviction for possession of stolen property. (TT: 11-12). However, with regard to the drug-possession and robbery convictions, the trial court restricted the prosecutor to simply asking Petitioner if he had been convicted of a felony. (TT: 12-13).
As far as Gayden's proposed testimony about Petitioner firing the alleged murder weapon at the futon, defense counsel argued that it should not be admitted under Molineux because it was unreliable and uncorroborated. (TT: 8). After the prosecutor explained that he anticipated presenting ballistics evidence linking the gun used in the futon incident with the Harris shooting (TT: 9-10), the trial court granted the Molineux application as to Gayden's testimony. (TT: 14).
Gayden and Petitioner, or “B.” as he was known, had been friends for about five years and saw each other every day. (TT: 206-07). A week or two before the night of October 1, 2005, Gayden saw Petitioner with a,380-caliber handgun at 1336 Clifford Avenue, a house out of which Gayden sold drugs. (TT: 245-47). Petitioner told Gayden that he bought the gun from a crack addict. (TT: 247). Gayden admitted that both he and Petitioner fired the gun into a futon mattress in the basement of 1336 Clifford Avenue to see if the gun worked. (TT. 247-49).
On October 1, 2005, at about 11 p.m., Gayden was walking to a house party on Hollister Street with his cousin, Alphonso Snow (“Snow”), and someone named “BB” (a different individual than Petitioner, a/k/a “B.”). (TT: 207-08). A maroon car pulled up closely next to Gayden, Snow, and BB, almost hitting them. (TT: 209, 269-70). The car's occupants started yelling at them and then jumped out and started chasing them. (TT: 209, 270-73).
Pursued by several of the car's occupants, Gayden and Snow ran into a cell phone store on Portland Avenue. (TT: 209-10). One of the men from the maroon car started shooting a gun during the chase. (TT: 273-74). Just as Gayden was running into the store, he heard someone say, “yo, that's the shooter right there,” pointing at Gayden. (TT: 282). Gayden said, “no, it is not me,” and “lift[ed] up [his] shirt.” (TT: 281-82). Then a fight erupted and somebody hit Gayden on the head with a forty-ounce bottle of beer. (TT: 210-11, 282-83).
Gayden and the rest the crowd dispersed when the store owner yelled that he had called the police. (TT: 210, 283). Gayden and Snow got a ride with BB, who was pulled over by police responding to a report of “shots fired” in the area. (TT: 211,278). The police searched them and let them go on their way. (T: 212). Gayden eventually ended up back at his drug house on Clifford Avenue. (TT: 212-13, 265).
Later that night, Petitioner stopped by the Clifford Avenue drug house and asked Gayden what had happened to his face. (TT: 213). When Gayden told Petitioner someone had hit him with a bottle, Petitioner became angry and demanded to know “[w]ho the fuck did this?” (TT: 213-14). Petitioner kept “going on about what happened” and “was like, man, fuck that, man.” (TT: 214).
Later that night, Gayden and Petitioner rode their bikes to the store located at the corner of Clifford Avenue and Miller Street to buy beer. (TT: 214-15). Gayden spotted the maroon car from earlier that night parked in front of the store on Clifford Avenue, but there was nobody in it. (TT: 215-16). Scanning the small crowd outside the store, Gayden saw a man (Harris) using a pay phone about ten feet away from the maroon car. (TT: 216-17). He told Petitioner that the maroon car looked like the one from the fight that occurred earlier (TT: 216) and that the person using the pay phone “looks like one of the dudes [from the fight] right there.” (TT: 216-17).
After Gayden made that observation, Harris started running towards the maroon car. (TT: 217). Gayden testified that Petitioner “just rood up and started shooting” at the car. (TT: 218, 220). Specifically, Gayden said, Petitioner had ridden up near the entrance of the corner store but he turned his bike around and rode towards Harris, who was running behind the maroon car. (TT: 293-94). As Harris was getting into the driver's seat of the maroon car (TT: 218-19), Petitioner stopped his bike on the sidewalk but did not get off it, pointed his gun at the car, and started shooting. (TT: 219, 293-94). Gayden said that Petitioner was using the same,380-caliber automatic handgun he had bought from the crack addict, and he fired more than two shots in Harris's direction. (TT: 219, 245-48). During the shooting, Gayden remained on his bike in the street behind the maroon car. (TT: 220, 234, 290).
The prosecutor showed Gayden still photographs taken from the surveillance videotape outside the store. Gayden testified that they depicted the scene of the shooting. (TT: 236-38, 242-43). He identified where he, Petitioner, and Harris were located in the photographs based on his recollection, though he admitted he could not discern anyone's facial features. (TT: 239-41).
Gayden testified that after the shooting Petitioner rode his bike to 1550 Clifford Avenue. (TT: 220-21). Gayden went back to 1336 Clifford Avenue. (TT: 221, 223, 294). Later that night Gayden met up with Petitioner and Snow over at 45 Kohlman Street (TT: 223, 294), the residence of Octavia Allen (“Allen”), Gayden's girlfriend and the mother of his young child. (T: 223). Allen testified that while...
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