Wade v. Herbert

• Decision Date: 09 December 2004
• Docket Number: Docket No. 03-2905.
• Citation: 391 F.3d 135
• Parties: Tremain WADE, Petitioner-Appellant, v. Victor HERBERT, Superintendent of Attica Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

391 F.3d 135

Tremain WADE, Petitioner-Appellant, v. Victor HERBERT, Superintendent of Attica Correctional Facility, Respondent-Appellee.

Docket No. 03-2905.

United States Court of Appeals, Second Circuit.

Argued: June 18, 2004.

Decided: December 9, 2004.

Kevin F. Casey, The Legal Aid Society, Criminal Appeals Bureau, Brooklyn, N.Y. (Laura Johnson, on the brief), for Petitioner-Appellant.

Michael D. Tarbutton, Assistant District Attorney, District Attorney's Office, Queens County, Kew Gardens, N.Y. (Richard A. Brown, District Attorney, and John M. Castellano, Assistant District Attorney, on the brief), for Respondent-Appellee.

Before: LEVAL and PARKER, Circuit Judges, and IRENAS, District Judge.^*

Judge IRENAS concurs by separate opinion.

LEVAL, Circuit Judge:

Tremain Wade appeals from the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254, seeking to set aside his conviction in courts of the State of New York for murder and illegal weapons possession. At his trial, the New York Supreme Court excluded Wade's alibi defense on the ground that his alibi notice was untimely under New York's Criminal Procedure Law Section 250.20. He claimed in his petition that the exclusion of his alibi violated his rights under the Sixth Amendment to the Constitution. The United States District Court for the Eastern District of New York (Weinstein, J.) denied the petition. The district court concluded that the decision of the New York Supreme Court, Appellate Division, upholding the constitutionality of the exclusion of the alibi was not an unreasonable interpretation of Supreme Court authority. We agree and affirm.

The Trial Evidence Establishing Wade's Guilt

The evidence at Wade's trial established the following: Lawrence Munson was shot and killed in the early morning of October 24, 1993, after an argument outside of a nightclub in Queens, New York. Munson and his friend Rudolph Jones had come to the Q Club at about two a.m. Sometime after five a.m., they exited the club and conversed with two women in a parked BMW. Two other men approached. One of them asked, "[W]hy you trying to talk to my girl?" Munson answered, "[Y]o, I wasn't trying to talk [to her], she was trying to talk to me." The man touched his waistband, prompting Munson to say, "You act like you got a gun, don't act like you got heat." The man then drew a gun and fired, hitting Munson in the chest.

Munson and Jones got into their red Mercury Mercure, and drove off — Munson behind the wheel. When the car hit a bicyclist, Jones realized Munson had been hit, and flagged down a police car. Munson soon died from his wound. At no point during the argument or the brief car ride did Munson tell Jones that he knew his assailant. On November 14, 1993, Jones viewed a photo array and identified the petitioner, Tremain Wade, as the shooter.

That same day, apparently after Jones's photo identification, the police went to petitioner's house to question him about the shooting. Petitioner was not home. To avoid the police, he then fled to Albany. He was not found until almost three years later, on September 24, 1996, at which point he was arrested.

Upon his arrest, petitioner spoke for about twenty minutes with Detective Wendell Stradford of the New York Police Department. Stradford testified that petitioner admitted having known, based on conversations with his father and friends, that the police were looking for him in connection with Munson's killing, and that he therefore went to Albany to avoid arrest. Wade told Stradford he "knew this would come upon him one day." Albany police officers testified that they had stopped petitioner on more than one occasion during the intervening period, and that petitioner had used a false name.

Stradford also testified that petitioner admitted having seen Munson at the Q Club shortly before the shooting. Petitioner said he went to the club with a group of friends, including his cousin Kim Jackson and a woman named Donna Beckett. He saw Munson there with a "kid" whom he did not know. Petitioner and Munson had known each other for years, and when they saw each other at the Q Club, they hugged and chatted. One of the things they discussed was their rivalry for the same woman. Later, petitioner saw Munson and the unknown "kid" leaving the club and walking toward a red Mercury. Shortly thereafter there was some sort of "ruckus," but petitioner, because he was high, did not investigate. He could not remember when or with whom he had left the club.

Stradford's testimony left unclear, however, whether petitioner's statement referred to the night Munson was killed or the last night petitioner had seen Munson alive, or whether those two dates were the same. Stradford asserted his belief that petitioner's statement to the effect that he had seen Munson at the Q Club referred to the night Munson was killed. But Stradford also admitted at one point that petitioner had told him he did not remember the night Munson was killed, and that he did not actually learn of Munson's death until two weeks later, on November 5, 1993.

After his interview with Stradford, petitioner was placed in a lineup and Jones again identified him as the shooter. Jones also identified petitioner in court during his trial.

Petitioner's defense centered on the testimony of his friend Donna Beckett. Petitioner, Munson, and Beckett were friends from school and had ridden the bus together for almost ten years. Beckett testified that she had accompanied petitioner to the Q Club in October 1993, but that the occasion predated the night Munson was killed. Although they had seen Munson at the club the night they were there — Beckett had even danced with him — Beckett testified that she went to the Q Club only on Thursday nights. The shooting, by contrast, took place on early Sunday morning. Beckett added that she had seen Munson at a gas station subsequent to their trip to the club.

In his trial defense, petitioner also introduced the surveillance video of the Q Club's front entrance for the night Munson was killed. Viewing the videotape, Jones was unable to identify petitioner or his friends entering the club that night. The club, however, had two other entrances.

The Alibi Defense

On Friday, November 14, 1997, a few days before petitioner's trial was to begin, his counsel interviewed petitioner's cousin, Kim Jackson. Jackson told petitioner's counsel that she would testify that petitioner could not have been at the Q Club in Queens on October 24, 1993, the night Munson was killed, because he was at an apartment on Long Island.

The next Tuesday, November 18, 1997, over four years after the crime, a year after petitioner's arrest, and the day before the case was to be sent for jury selection, petitioner's defense counsel asked leave of the court to file a late notice of alibi.¹ Counsel informed Justice Pearle Appelman that he had first learned of the alibi when Jackson contacted him the previous Friday afternoon. Justice Appelman allowed the notice over the prosecution's objection. The prosecution declined the court's offer of an adjournment to investigate the alibi, but maintained its objection.

The next day, following jury selection, the case was transferred to Justice Robert Hanophy for trial. The prosecution renewed its objection, stating, "This is so long after. So the timeliness is a big thing." Defense counsel reiterated that he had only just discovered the alibi himself, and revealed that until that point he himself had not known where petitioner was on the night of the shooting:

[Defense Counsel]: One of the problems, Judge, well, the defendant was arrested last year, Judge. One of the problems that had incurred [sic] was the fact that he's been continuously incarcerated and had difficulty making contact with people, to get people to call me. This witness, there have been numerous people that he's attempted to get in contact with me and this is the first time this witness got in touch with me.

* * *

This defendant has only told me, Judge, that he did not do this and he has told me that from the very beginning. This defendant has not told me, I will state it out, this defendant has not told me where he was the night that this person was killed.

* * *

The Court: Let me stop you for a second. You just said now your client has not told you where he was on the night of this murder; is that correct?

[Defense Counsel]: That is correct. Other than the fact he said that he didn't do it.

Justice Hanophy nonetheless concluded, "I see no reasonable excuse for failure to file a timely notice.... [The People] are going to be unduly prejudiced." In response to defense counsel's point that Jackson was willing to speak to the prosecution before trial, Justice Hanophy added:

I find it would be an impossible task for the People to go out and get witnesses to try and counter this last minute notice of alibi.... [T]his is a 1993 crime. He was arrested in '96. There has been almost two years [sic] and there should have been something done. Filing a notice on the day of trial is not timely to me.

Justice Hanophy subsequently issued a written ruling, finding that petitioner had "failed to allege a reasonable excuse to the Court for this most egregious delay in filing notice of this defense" and that "it would be unduly burdensome for the People to now be in a position to try to locate witnesses to refute the defendant['s] untimely alibi defense." Defense counsel cited no constitutional basis for his objection to the exclusion of the testimony.

The trial was conducted without evidence of petitioner's alibi, and the jury convicted petitioner of second degree depraved indifference murder and one weapons count, while finding him not guilty of second degree intentional murder. Petitioner was sentenced to twenty-five years to life imprisonment.

On appeal to the Supreme Court, Appellate Division, petitioner raised three objections to the exclusion of...