Smith v. State
| Decision Date | 20 January 2023 |
| Docket Number | 20-cv-9708 (LJL) |
| Parties | OSMONDO SMITH, Petitioner, v. THE STATE OF NEW YORK, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pro se Petitioner Osmondo Smith (“Petitioner” or “Smith”),[1] a New York state prisoner currently incarcerated at Great Meadow Correctional Facility, petitions for a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C § 2254. He seeks relief from his sentence of incarceration after conviction following a jury trial in New York Supreme Court, Bronx County, of Murder in the Second Degree, New York Penal Law (“NYPL”) § 125.25(01). Smith was sentenced to a term of incarceration of twenty-five years to life.
Petitioner seeks relief on the following grounds: (1) his conviction was against the weight and credibility of the evidence and therefore in violation of his right to due process under the Fourteenth Amendment of the United States Constitution; (2) two 911 calls were incorrectly received as evidence under the excited utterance exception to the rule against hearsay and his Confrontation Clause rights under the Sixth Amendment to the United States Constitution; (3) the state court's denial of his application to obtain sealed arrest records deprived him of his right to present a complete defense; (4) the photo identification procedure used to identify him was unduly suggestive; (5) the trial court's deadlock instruction to the jury violated his right to due process under the Fourteenth Amendment; and (6) the trial court failed to subject Petitioner to mental health evaluation prior to trial to determine his competency to stand trial. Dkt. No. 5. Petitioner also filed a letter asserting an “additional ground” based on (7) ineffective assistance of trial counsel due to counsel's failure to request a mental health evaluation and their performance during trial related to his previously asserted claims. Dkt. No. 9. Finally, Petitioner requests that the Court appoint counsel to represent him. Dkt. No. 35.
For the following reasons, the Petition is denied and the request for appointment of counsel is denied.
The following facts are taken from the petition and the appended record. Given the Petitioner's state court conviction the facts are “summarize[d] in the light most favorable to the verdict.” Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (per curiam); see also Alexander v. Royce, 2021 WL 1192022, at *1 (S.D.N.Y. Mar. 30, 2021) (same). Petitioner was convicted in New York Supreme Court, Bronx County, following a jury trial, for the September 1, 2012 murder of Yusef Middleton (“Yusef”)[2] at 1030 Boynton Avenue in the Bronx.
On the night of August 31, 2012, and the early morning of September 1, 2012, Petitioner was with Yusef, Yusef's cousins Sidney Middleton (“Sidney”)[3] and Tamekia Middleton (“Tamekia”), and others in front of an apartment building at 1030 Boynton Avenue in the Bronx, New York. Dkt. No. 26 at 60-62.[4] The group was drinking together. Id. at 63. At some point in the evening, Petitioner approached the others and began “smacking the cups out their hands” and “snatching money out of their hands.” Id. at 63, 163, 166, 221-22. Sidney told Petitioner, Id. at 63. In response, Petitioner “made a phone call,” “told someone on the phone to bring him a gun,” and walked off toward Bruckner Boulevard nearby. Id. at 64, 83, 225. Sidney told him Id. at 225.
Later that evening, Petitioner returned in a taxicab, exited the cab near Bruckner Boulevard, and walked toward the group in front of 1030 Boynton Avenue. Id. at 65-66, 22526. He was wearing shorts that were burgundy or red and a black shirt. Id. at 179, 228. Tamekia and Sidney observed him kneeling and reaching toward his sock twice as if he had a firearm in an ankle holster. Id. at 65-66, 227-28. Sidney told Yusef to “be on point” because he “just felt it was going to be a problem when [he] saw [Petitioner] get out of the taxi cab, because he was standing low.” Id. at 226-27. At the same time, Tamekia exhorted that everyone should come upstairs because “y'all know [Petitioner] called for that gun.” Id. at 64. Tamekia and others went into the apartment but Yusef, Sidney, and one other person remained on the street. Id. at 65-66. Tamekia came back down the steps inside the building and peeked her head out to see what Petitioner was doing and witnessed a “black little gun” in Petitioner's hand. Id. at 66. As Petitioner approached, he put his hand in his right pocket and told Sidney and Yusef, “Y'all trying to play me?” Id. at 229. Yusef said to Petitioner “What you got, a gun?” and reached for Petitioner's hand which was in his right pocket. Id. at 230. In response, Petitioner jumped back and pulled a .38 snub nose revolver from that pocket. Id. at 69, 230-31, 234.
After first pointing the revolver at Sidney, Petitioner turned his attention to Yusef, who had taken off running into the street behind a van. Id. at 67-69, 231. After Petitioner did so, Sidney ran into the building. Id. at 231. Tamekia and Sidney then heard two gunshots; Tamekia then saw Yusef run into the building with Petitioner following him. Id. at 69, 231. After Yusef entered the building, Petitioner turned around and walked out of the building. Id. at 69. Sidney heard Yusef yell “I'm hit” and saw him collapse on the steps inside the building. Id. at 69, 23132. Shortly after 4:00 a.m. on September 1, 2012, Yusef was declared dead at Jacobi Hospital. Id. at 352.
After the shooting, the police received two 911 calls concerning the incident. The first call was from Tamekia, who told the 911 operator, Dkt. No. 25-1 at 5; see also Dkt. No. 26 at 126, 390. Tamekia provided her real name. Dkt. No. 26 at 126. The second call was from an unidentified individual who told the operator, “Yo, somebody just got shot....at 1030 Boynton,” and reported that the victim was a male who had been shot in the stomach, adding that, “It's like he's dying right now.” Dkt. No. 25-1 at 5. At one point, the caller could be heard saying to the victim, “Hang on, Poe.” Id. The caller told the operator that the shooter was “[a] black guy” wearing “[a]ll black, black and red,” and requested an ambulance before hanging up. Id. at 6; Dkt. No. 26 at 363-65.
A few hours after the shooting, Detective Rene Narvaez of the New York City Police Department (“NYPD”) met Tamekia and her sister, Annanetta Middleton (“Annanetta”), at the 43rd Precinct. Dkt. No. 26-1 at 10. Tamekia told the police that an individual whom she identified as “Ozzie” shot her cousin. Id. at 11. Tamekia stated that she had seen the Petitioner earlier that evening and knew him from the “old” neighborhood on the west side of the Bronx. Id. at 16.
Detective Narvaez then asked Tamekia to identify the shooter from pictures on the NYPD's photo manager system on the computer that he pulled up after typing in the name “Ozzie” and searching for black males between the ages of thirty to forty years old. Id. at 11-13. After each photo was displayed, she responded “that's not him.” Id. at 13. Detective Narvaez showed Tamekia several photos in succession. Id. at 13-14. Detective Narvaez did not preserve copies of any of the other photos. Id. at 22.
Eventually, Annanetta, who was attempting to find Petitioner's full name and address, gave the detective “Smith” as Ozzie's last name. Id. at 13. Detective Narvaez typed the name into the database. Id. After viewing between ten to fourteen photos, a photo of the Petitioner appeared on the screen and Tamekia stated, Id. at 14. The detective printed the photo out and Tamekia wrote on it “That the man who shot my cousin Yusfe [sic].” Dkt. 25-5 at 2. She also signed and dated the photo. Id.; Dkt. No. 26-1 at 14.
Around 5:45 a.m. on September 1, 2012, following Tamekia's identification of Petitioner, Detective Narvaez traveled to Petitioner's address with several officers of the Bronx Homicide Task Force. Dkt. No. 26 at 330, 350-52, 358. Detective Narvaez knew at this point that Yusef was deceased. Id. at 352. Petitioner answered the door and identified himself as “Ozzie.” Id. at 331. After Petitioner stepped into the hallway, Detective Narvaez placed him under arrest. Id. at 331-32. Petitioner appeared to be intoxicated and was wearing a black shirt and red shorts. Id. at 332-34, 353. None of the officers told him to put on any clothes. Id. at 354. Detective Narvaez did not recover a weapon from Petitioner or his apartment or inspect Petitioner's hands or clothing for gunshot residue. Id. at 354-56.
On September 28, 2012, Petitioner was indicted by the Grand Jury of Bronx County of Murder in the Second Degree, NYPL § 125.25(1), Manslaughter in the First Degree, id. § 125.20(1), and Criminal Possession of a Weapon in the Second Degree, id. § 265.03(1)(b). Dkt. 25 ¶ 5.
At a pretrial Wade hearing, Petitioner moved to suppress the identification obtained through the photo identification procedure used to identify Smith as Yusef's alleged killer on the grounds that the procedure was unduly suggestive. Dkt. 26-1 at 26. After the hearing, the trial court denied the motion to suppress...
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