Witherspoon v. Colvin
| Decision Date | 31 August 2022 |
| Docket Number | 18-CV-4816 (LDH) (TAM) |
| Parties | JEROME WITHERSPOON, Petitioner, v. JOHN COLVIN, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
In November 2013, pro se Petitioner Jerome Witherspoon (“Petitioner” or “Witherspoon”) was convicted in New York Supreme Court, Queens County, and sentenced to twenty-two years to life imprisonment. He brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction. (See Petition for Writ of Habeas Corpus (“Pet. for Writ”), ECF No 1.) Witherspoon claims he is being held in violation of the Constitution or laws of the United States on two main grounds. First, he claims that he was deprived of his constitutional right to autonomy by his trial counsel's refusal to present a justification defense. Second, he argues that he suffered ineffective assistance of counsel as a result of his trial counsel's (1) failure to investigate or present a justification defense; (2) failure to guard against inadmissible evidence; and (3) embarking on a prejudicial course of conduct, and that the ineffective assistance was compounded due to the cumulative effects of these errors by counsel. The Honorable LaShann DeArcy Hall referred the instant petition to the undersigned Magistrate Judge for a report and recommendation.
For the reasons set forth below, the Court respectfully recommends that the petition be denied.
In the early morning hours of October 14, 2012, Witherspoon shot eighteen-year-old Shawn Bryant (“Bryant”) in a basement during a house party in Queens. (See State Court Record (“S.R.”), ECF No. 9-3, at 7-8 159.)[1] Bryant and Witherspoon were both dancing, Bryant bumped into Witherspoon, a “tussle” or “scuffle” ensued, and Witherspoon shot Bryant in the leg. (See State Court Transcript (“Tr.”), ECF No. 9-5, at 360:11-361:25, 386:7-25, 405:1-4.) Witherspoon was arrested on October 17, 2012, and after being read his Miranda warnings, indicated that he did not want to answer questions. (Id. at 469:20-25, 484:9-485:20.) Shortly thereafter, Witherspoon volunteered that “he had been at the party; that . . . somebody had stepped on his foot, and he had made a statement to the person,” but that “he didn't shoot anybody.” (Id. at 486:3-6.) The same day, Bryant identified Witherspoon in a lineup at the precinct. (Id. at 404:1416, 492:10-14.)
Prior to trial, on May 30, 2013, the state court held a suppression hearing as to two inculpatory statements Witherspoon made after his arrest. (See id. at 23-45; see also S.R., ECF No. 9-3, at 111; Resp't's Mem. of Law in Opp'n (“Resp't's Opp'n”), ECF No. 91, at 2-5.) Specifically, the prosecution sought to introduce Witherspoon's post-arrest statement that he had been at the house party, as well as a videotaped statement Witherspoon made the following day at Queens Central Booking, in which he admitted his guilt. (Resp't's Opp'n, ECF No. 9-1, at 2-5.) The court suppressed the latter statement because it found that Witherspoon had properly invoked his right to counsel the day before after being advised of his Miranda rights. (See id. at 4-5.) In addition, on October 23, 2013, during a pre-trial hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), the state court denied the prosecution's request to cross-examine Witherspoon about the facts underlying a prior conviction arising from two shootings, as well as a robbery conviction, were he to testify at trial. (Tr., ECF No. 9-5, at 57-64.)
Witherspoon's trial took place in the Queens County Supreme Court from October 29, 2013, until November 4, 2013, before Justice Kenneth C. Holder. (See id. at 320.) Witherspoon was charged with, among other things, attempted murder in the second degree. (Id. at 353:13-15.) At trial, Bryant testified that he “bumped into somebody” at the house party who then “drew the gun out and shot [him],” and identified Witherspoon as the shooter. (Id. at 360:16-17, 364:3-10.) Sergeant Steven Kells testified that he arrived at the house party on October 14, 2012, and saw approximately twenty-five people gathered in the backyard, including Bryant, who was lying on the ground, injured with a gunshot wound and calling for an ambulance. (Id. at 419:24420:24.) Kells also stated that he saw a .40 caliber shell casing on the floor of the basement and a trail of blood leading to a room in the basement. (Id. at 422:17-20.)[2]Detective Barry Brown testified that he went to Jamaica Hospital to interview Bryant later that day, and Bryant told him the shooter was nicknamed “Spoon.” (Id. at 462:2123, 463:13-25.) Brown stated he next interviewed Brianna Smoot, one of the hosts of the house party, and then returned to the precinct and “ran computer checks on the nickname Spoon.” (Id. at 464:1-10, 465:3-7.) Brown testified that the computer check came back with two matches for the nickname Spoon, one of which fit Witherspoon's description, leading to Witherspoon's arrest. (Id. at 468:17-469:1, 469:16-25.)
During the trial, the prosecution also played several recordings of telephone calls Witherspoon made while he was in pre-trial detention at Rikers Island. (Id. at 541:10544:23; S.R., ECF No. 9-3, at 315-45.) In these calls, Witherspoon discussed the shooting and suggested that he was acting in self-defense. (See, e.g., S.R., ECF No. 9-3, at 320 (“It was like this it was either me or them it was that type of situation ....”); id. at 321 (“[S]o now his man come to the from the side but I already see the hammer in his waist so [I']m like oh I act like I didn't see it so I'm like yo that's your man, he like yeah what up . . . Yeah so I back up I didn't even know this man was behind me so no [I']m like oh shit so I guess he realized oh he on point son tried to grab me ....”); id. at 323 ().) In the calls, Witherspoon also gave directions about destroying a gun, which is referred to as an “iPhone,” and indicated that he was prepared to serve time for his actions. (See, e.g., id. at 316 (); id. at 317 (); id. at 319 ( ); id. at 324 ().)
Witherspoon did not testify or present evidence at trial. (Tr., ECF No. 9-5, at 556:17-21; Pet. for Writ, ECF No. 1, at 1.) Near the conclusion of trial, his defense lawyer (referred to herein as “counsel,” “defense counsel,” or “trial counsel”) twice moved for a mistrial arguing that the court erred in instructing the jury regarding whether it could consider the recorded Rikers Island calls as evidence of Witherspoon's involvement in an uncharged crime, namely, an attempt to destroy evidence. (Tr., ECF No. 9-5, at 545:7-19, 554:3-11.) In addition, defense counsel moved for dismissal, arguing that the prosecution did not prove its case beyond a reasonable doubt. (Id. at 554:12-14.) On November 4, 2013, the jury found Witherspoon not guilty of attempted murder in the second degree, and guilty of assault in the first degree, two counts of criminal possession of a weapon in the second degree, assault in the second degree, and criminal possession of a weapon in the third degree. (Id. at 625:22-626:25.) On November 20, 2013, Witherspoon was sentenced to twenty-two years to life in prison. (Id. at 647:7-8.)
At his sentencing, Witherspoon told the court that he was “guilty with an explanation” and that, as he stated in his phone calls from Rikers Island, he did what he “had to do” because his “back was put up against the wall.” (Id. at 641:8-642:6.) At sentencing, defense counsel also stated that (Id. at 639:24-640:7.)
On February 25, 2014, Witherspoon filed a notice of appeal before the Supreme Court for the State of New York Appellate Division, Second Department. (See S.R., ECF No. 9-3, at 5.) On appeal, Witherspoon argued through newly appointed counsel that he was denied his constitutional rights to a fair trial and effective assistance of counsel because (1) his trial attorney failed to request a justification charge or guard against inadmissible evidence; and (2) because the trial court did not deliver a justification charge sua sponte. (Id. at 18-31.) Witherspoon also argued that the second-degree assault conviction was a lesser included offense of his first-degree assault conviction. (Id. at 31 32.)
Regarding inadmissible evidence, Witherspoon claimed he was prejudiced by trial counsel's failure to object to testimony about, inter alia, Witherspoon's nickname and criminal history. (See id. at 24-31.)[3]
In response, the district attorney argued that Witherspoon was not deprived of effective assistance of counsel or a fair trial, and that the trial court was not required to sua sponte instruct the jury on a justification charge. (See id. at 49-70.) Specifically, the district attorney argued that “the evidence did not show that Bryant's companion used or was about to use deadly physical force,” and “even if the [justification] charge...
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