Thomas v. Scully

• Decision Date: 20 June 1994
• Docket Number: No. 92-CV-1159 (JS).,92-CV-1159 (JS).
• Citation: 854 F. Supp. 944
• Parties: Tyrone THOMAS, A/K/A Frederick Thompson, Petitioner, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

854 F. Supp. 944

Tyrone THOMAS, A/K/A Frederick Thompson, Petitioner, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.

No. 92-CV-1159 (JS).

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

June 20, 1994.

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COPYRIGHT MATERIAL OMITTED

Tyrone Thomas, pro se.

Linda Cantoni, Asst. Dist. Atty., for Kings County, Brooklyn, NY, for respondent.

MEMORANDUM AND ORDER

SEYBERT, District Judge:

Petitioner Tyrone Thomas, proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1983, after a jury trial, of various offenses stemming from the fatal shooting of a grocery-store owner during the course of a robbery. He is presently serving four concurrent terms of imprisonment, the longest of which is from twenty years to life.

In this application for collateral relief, petitioner asserts a number of claims. First, he contends that his guilt was not proved beyond a reasonable doubt. Next, he claims that he was denied a fair trial. Specifically, petitioner asserts that the trial court erred by admitting certain photographs and fingerprint cards into evidence, by improperly marshaling the evidence in its instructions to the jury, and by improperly instructing the jury as to (i) the burden of proof with respect to petitioner's alibi defense, (ii) the proper weight to accord circumstantial evidence, and (iii) the standards for felony murder. Further to this point, petitioner asserts that he was denied a fair trial through prosecutorial misconduct on summation, and through the prosecutor's improper cross-examination of his alibi witnesses.

Petitioner also contends that the trial court improperly halted the trial because of the unavailability of a state's witness. By so doing, petitioner asserts that he was subjected to double jeopardy. Petitioner further argues that his appellate counsel ineffectively conducted his direct appeal by failing to raise this issue.

The Court has carefully reviewed the submissions of the parties, as well as the full record of proceedings in the state courts. For the reasons discussed herein, the petition is denied in its entirety.

BACKGROUND

At petitioner's trial, the prosecution introduced evidence to show that on March 1, 1981 at approximately 8:00 P.M., four males, aged approximately seventeen through twenty, appeared at the entrance to the Friendly Superette at 1908 Church Avenue in Brooklyn, New York. The grocery store was owned by Jack Woo. In addition to Mr. Woo, present in the store at the time was William Fourquet, who was employed there as a clerk. Tr. at 54 (testimony of William Fourquet).

The four youths at the door asked Fourquet if he could let them in so that they could buy a quart of beer. Fourquet told them the store was closed, and repeated himself three times. Id. at 55. Mr. Woo, who was behind the counter, overheard this dialogue and instructed Fourquet to let the youths in. Only one of the young men entered the store; the other three waited outside. Id. at 57.

Upon entering the store, the youth proceeded to grab a quart of beer from the refrigerator and brought it to the counter. He then took out a dollar in payment therefor. Upon being informed that the cost of the beverage was $1.09, he asked if he could go outside to get the additional nine cents from his friends. Fourquet then unlocked the door to let the youth out, and held it open for him. Id. at 58-59.

Shortly thereafter, the youth returned to the store and placed a gun to Fourquet's head. After Fourquet was pushed to the front of the counter, two other youths came in. With the weapon perched upon Fourquet's temple, the youth told Woo, who was standing behind the counter, to give them the money in the cash register or else he would shoot Fourquet. Id. at 60.

In the excitement of the moment, Mr. Woo at first froze, but then composed himself and reached underneath the counter where he kept the money. Woo did not open the cash register because he had already transferred the money below the counter. Id. at 60-61.

As Woo reached below to get the money, the youth holding the gun fired two shots, each striking Woo. Id. at 61. The gunshots proved fatal as Woo fell to the ground.

Shortly thereafter, Fourquet was pushed to the floor. At this time, one of the youths hopped over the counter and attempted, without success, to open the cash register door. The youth with the gun then commanded Fourquet to open the cash register door. Fourquet, however, was also unable to do so. Id. at 63-66. Thereupon, the same youth who had previously failed to unjar the cash register door attempted to pry the door open, first with a steak knife, and then with a machete that was in the store. This effort also proved unsuccessful. Id. at 66-68.

Upon abandoning his attempt to pry open the cash register, the youth commanded Fourquet to roll Mr. Woo over, whereupon the youth searched Woo's pockets, including his wallet, and removed approximately five to six hundred dollars in cash. Immediately thereafter, the youths fled the store. Id. at 68-69.

Fourquet testified at trial that he was unable to identify positively the three youths in the store, aside from the fact that their skin color was black, they were aged approximately seventeen through twenty, and that their height ranged from approximately five-foot-seven to five-foot-eight. Id. at 54, 71.

Following a police investigation, petitioner was charged with two counts of Murder in the Second Degree (N.Y.Penal Law § 125.251 and 3), one count of Robbery in the First Degree (N.Y.Penal Law § 160.152), one count of Criminal Possession of a Weapon in the Second Degree (N.Y.Penal Law § 265.03), and two counts of Criminal Use of a Firearm in the First Degree (N.Y.Penal Law § 265.091 and 2). His criminal trial was held before a jury in the New York Supreme Court for Kings County.

At petitioner's trial, two forms of evidence were presented tying him to the scene of the crime. First, testimony was presented by Rudolph Harris, a convicted felon who at the time of the trial was serving a sentence of from one-and-a-half to four-and-a-half years upon having pled guilty to an attempted robbery in an unrelated occurrence. Tr. at 88-89 (testimony of Rudolph Harris). Harris testified that there came a time when the petitioner told him that he had "come in money" through his robbery of a store on Church Avenue at which a confederate, named "Buzzy," had shot a man of Chinese descent. Id. at 91-92. On cross-examination, Harris admitted that upon speaking with the investigating police officer and an assistant district attorney in connection with the petitioner's alleged comments, the district attorney's office dismissed certain weapon possession charges that had been brought against him in an unrelated matter. Id. at 98, 110. Harris also admitted that on an earlier occasion in connection with an unrelated charge, he had lied on the witness stand to protect himself. Id. at 109.

Second, fingerprint evidence was presented at trial linking the petitioner to the crime scene. Evidence was presented that the grocery-store counter top, the cash register, and the machete were all dusted for fingerprints. Id. at 135-36 (testimony of Detective Anthony Amplo). Testimony was proffered as to ten points of comparison between the fingerprint of petitioner Frederick Thompson and that of the latent prints taken by the police from the cash register in Mr. Woo's grocery store. Id. at 197 (testimony of police officer Robert Lohnes). Expert testimony was also proffered that the unknown prints taken from the cash register and the known prints of the petitioner were made by the same person. Id. The defense did not call any experts to present an opinion to the contrary. The prosecution's expert, however, testified on cross-examination that the petitioner's fingerprints did not match the prints taken from the machete or the machete blade. Id. at 199.

The petitioner testified at his trial and asserted an alibi defense, claiming that at the time of the robbery, he was present at a roller-skating rink with his sister and two friends. Id. at 253 (testimony of Frederick Tyrone Thompson). Petitioner's sister and the two friends each testified at trial as to the petitioner's presence with them at the time of the robbery. On cross-examination, it was adduced that none of the alibi witnesses, upon hearing of the petitioner's arrest, came forward to either the police or the assistant district attorney prosecuting the case to inform them of the petitioner's asserted whereabouts at 8:00 P.M. on March 1, 1981 — the time of the robbery and fatal shooting for which the petitioner was arrested. Id. at 229 (testimony of Melinda Thomas), 239 (testimony of Rena Wilson), 248 (testimony of Jonathan Rogers).

After the defense had rested, the prosecutor moved to reopen the case for the sole purpose of introducing the petitioner's fingerprint card into evidence. Id. at 261. The prosecutor claimed that he had inadvertently failed to introduce this item into evidence, and now sought to remedy this omission by filtering the evidentiary foundation therefor through a witness who had testified earlier. The trial court granted this motion, and the petitioner's fingerprint card was admitted. Id. at 262.

Petitioner was convicted on April 21, 1983 of Murder in the Second Degree (felony murder), Manslaughter in the First Degree, Robbery in the First Degree, and Criminal Possession of a Weapon in the Second Degree. Thomas was sentenced to concurrent terms of imprisonment of from twenty years to life on the felony murder count, six to eighteen years on the manslaughter count, six to eighteen years on the robbery count, and five to fifteen years on the weapon possession count.

Thomas appealed the judgment of conviction to the New York State Supreme Court, Appellate Division, Second Department hereinafter "Appellate Division". On direct appeal, peti...