Smith v. Perez
| Decision Date | 29 June 2010 |
| Docket Number | No. 05-CV-0167(VEB).,05-CV-0167(VEB). |
| Parties | Patrice SMITH, Petitioner, v. Ada PEREZ, Superintendent, Bedford Hills Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
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Patrice Smith, Bedford, NY, pro se.
Raymond C. Herman, Buffalo, NY, for Respondent.
DECISION AND ORDER
Pro se petitioner Patrice Smith (“Smith” or “Petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Smith challenges the legality of her state-court custody pursuant to a judgment of conviction entered against her following a jury trial in Erie County Court, New York State Supreme Court, convicting her of intentional murder, felony murder, and first degree robbery.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
The acts upon which Smith's conviction is based occurred when Smith was 16 years-old. The victim was a 71-year-old man, Reverend Robert Robinson (“Robinson” or “the victim” or “the decedent”) with whom Smith had been involved an eight-month sexual relationship that began when she was 15 years-old. The indictment charged Smith and her friend, “Theoplish” [sic] a/k/a “Laurentz” Mitchell (“Mitchell” or “co-defendant”), with strangling and beating the victim to death at his house and stealing his car. Smith's co-defendant was tried separately. 1 The evidence presented by the prosecution at Smith's trial included Smith's statement that the victim gave her money and gifts in return for sexual favors.
At trial, Smith testified that she first met Robinson when he stopped to help her and her friends when they were having car trouble. Smith told him that she was 18 years old; she did not know how old he was the thought he appeared to be about 45 or 50. Robinson took her out to eat on several occasions. Eventually he asked if she had a boyfriend and said he wanted to get to know her better. T. 856. 2 Robinson would take her to the mall and get her money to buy things. They started talking to each other every day. He used to tell her that she was so “tender” because she was so young and one day he asked if he could touch her sexually; she refused. T. 859. A couple weeks later they were driving around in his car and he took her to an old train station and told her that he would give her $50 if she let him touch her. T. 860. She let him, and then he masturbated; after he was finished he gave her $50 and drove her home. The same thing happened a couple days later. During her testimony regarding the sexual incident at the train station, Smith began crying, T. 950, and explained on cross-examination it was because she “was ashamed[.]” T. 950. Several weeks later Robinson offered her $100 if she would have sexual intercourse with him. T. 861. He brought her to his house and told her to perform oral sex on him, and she did so reluctantly. He paid her $100. Smith said that Robinson would buy her whatever she wanted from the liquor store so she “could be drunk whenever he asked [her] to do [it].” T. 862. Robinson also used to purchase marijuana for her. T. 863-64. Robinson himself did not use drugs or drink alcohol, however.
Smith testified that Robinson gave her money “most” of the times she performed some sort of sexual act with him. T. 864. Robinson gave her his wristwatch and bought her a new one after she lost it, bought her school clothes, jewelry, sneakers and boots, a television set, and a phone; “practically whatever [she] wanted” he bought her. T. 878. In June of 1998, Robinson told her that if she “could have his baby he would buy [her] a house.” T. 879. Robinson also promised that if she got her driver's license than she could have his other car, also a Cadillac.
Smith testified that Robinson was interested in having sex with other young women and in finding a sexual partner for Robinson's best friend, James Smith. Petitioner recalled a conversation in which Robinson asked her if she “could find James a friend,” a young woman like petitioner. T. 866. Robinson wanted petitioner to have sex with both him and his friend. T. 866-67. Robinson also suggested that petitioner and her best friend get together with him and put on a “sex show” for him, and he once asked Smith to get him a “white girl.” T. 867. When Robinson would come to pick her up he would say to just bring her friends in the car with them. Petitioner identified several girls, including Martricia Gaskin and co-defendant Mitchell who had “been in his car.” Smith testified that Gaskin or Mitchell were always with her when she would be driving around with Robinson. According to Smith, Robinson would let her friends know of his sexual interest by asking some of the girls to get out of the car, leaving him alone with another girl. T. 868-69, 870.
Petitioner testified that about one time that he had sex with her against her will. One night she had gone over there because she was so drunk and she did not want to go back to her own house. T. 883. Robinson said that he wanted to have sex with her and she told him no because she was so sick. She passed out and when she woke up he was between her legs with his penis in her vagina. T. 883-84. She told him to get off her because she was going to vomit and ran to the bathroom. T. 884.
Petitioner related that she currently lived with her father, and that she tried to keep her relationship with Robinson secret from him. She went to go live with her father because her mother had thrown her out of the house. Petitioner stated that while she was living at her mother's house, her brother had raped her. T. 885. Petitioner's brother continued to live with her mother after Petitioner left.
On the night of the incident, Petitioner testified, she and Mitchell were “bored” so she called Robinson to see if they could come over to his house. T. 879-80. They took the bus to Robinson's house, arriving about 8 p.m. Mitchell brought along her four-month-old baby. They all watched television in the front room for about half an hour. Then Robinson went into the back, where his bedroom was, and told Smith that he wanted to have sex with her there. T. 880-81. Robinson told her, “don't forget who be [sic] buying all [her] stuff.” T. 881. Smith acknowledged his generosity but said she did not want to have sex with him that night. According to Smith, Robinson started “getting all mad about it, telling [her][she] need[s] to pay him back for everything that he's getting [her].” T. 881. Smith replied that she would pay him back when she got a job.
At that point, Robinson left the room to admonish Mitchell to stop looking through some family mementos or photographs. When Smith followed behind him, Robinson asked her where she was going. Smith testified that he then “slapped [her] right across [her] face” and ordered her to go back to his room. T. 881. On cross-examination, she claimed it was a “back hand” slap on right side of her face. T. 971-72. Robinson tried to push her into the back room as she was trying to get to the front of the house to get away from him.
Smith related that she and Robinson started fighting and Robinson threatened that he was going to get his gun. Robinson previously had told her that he slept with a gun under his pillow because he had been robbed once. Smith stated that he actually had shown her the gun. T. 882. Smith was “scared” and she did not want him to get to the back room because she believed that was where the gun was located. As they were fighting in the hallway, Robinson, who was slightly smaller than she, fell down with her on top of him.
After Robinson fell on the floor, as he was trying to push Smith off of him, he announced that he was going to kill her. Smith explained, “I was real scared that he was going to go get his gun, and the cord was like right there, and I swear I didn't mean to put it around his neck....” T. 885-86, 887. Smith testified on cross-examination that she did not how she “got [the cord], but it was in [her] hands.” T. 989, see also T. 990-91. Smith said that she did not mean for the cord to become wrapped around Robinson's neck; however, she “just started pulling it” while they were “still fighting” and he was still trying to get up. Smith testified that she was thinking, “I don't want my life to be taken just because I didn't want to have sex with this man.” T. 890.
As Petitioner was pulling on the cord around Robinson's neck, Mitchell put a pillow over his head. Smith let go of the cord and “somebody [sic] grabbed a hold of the cord, and after that we just left.” T. 888. Smith said that Mitchell held the pillow over his head until she (Smith) let go of the cord and then Mitchell grabbed onto the cord and started strangling him. T. 888; see also T. 997. Eventually, Smith testified, she saw blood coming through the pillow, although she told the police that she saw blood coming out of Robinson's mouth. T. 1004. Smith testified on cross-examination that she got up and walked away from Robinson, to the front room, and Mitchell grabbed the cord and started pulling on it. T. 997. At that point, Smith claimed, she told Mitchell to get up so they could leave. Id. Smith claimed that Robinson was not dead or unconscious when they left him lying in the hallway, although she admitted that she never saw him move or get up. T. 1033.
Before Smith left the house, she took the keys to Robinson's blue Cadillac and went into the garage with Mitchell and her baby. T. 1004. Smith testified that she put the baby in the car and Mitchell was driving....
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