Wood v. Artus

Decision Date15 June 2020
Docket Number15-CV-4602 (SJF)
PartiesZENELL WOOD, Petitioner, v. SUPERINTENDENT DALE A. ARTUS, Respondent.
CourtU.S. District Court — Eastern District of New York

FEUERSTEIN, District Judge:

Zenell Wood ("Wood" or "Petitioner") petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging his 2011 conviction in New York Supreme Court, Suffolk County, whereby he was found guilty of (1) attempted murder in the second degree ("attempted murder") in violation of N.Y. PENAL LAW §§110/125.25; (2) criminal use of a firearm in the first degree in violation of N.Y. PENAL LAW §265.09; and (3) two counts of criminal possession of a weapon in the second degree in violation of N.Y. PENAL LAW §265.03. Petition ("Pet."), Docket Entry ("DE") [1]. For the reasons set forth below, the petition is denied and the case dismissed.

A. Shooting on November 4, 2008

The shooting leading to Petitioner's conviction occurred on November 4, 2008 at approximately 8:00 p.m. at the Jerusalem Shopping Center in Coram, New York (the "shopping center"). The shopping center is a strip mall running east to west that faces Middle Country Road, Route 25, to the north across a parking lot. It is bordered on the east side by Erna Drive, and on the west side by Fife Drive. The shopping center had a video surveillance system consisting of eight cameras, located in the front of the building, in the rear the building, and one in the pizzeria. TR1:78-79. The video feeds are hooked up to a DVR system and are recorded continuously. Id. at 79. The videos from the night of the shooting were admitted into evidence.

On the evening of the incident, Wood and his girlfriend, Marisa Walker, arrived at the shopping center in a 1999 Chrysler 300 driven by Walker. TR7:78. When they arrived, Walker observed some other cars, but no people in the parking lot. Id. at 89. Wood went into the pizzeria located at the west end of the shopping center. Walker testified that Wood exited the pizzeria, then headed towards the deli located at the east end of the shopping center. Id. at 79, 80. Walker, who was listening to music in the car and was facing away from the deli, heard people arguing. Id. at 79. She got out of the car and saw Wood returning to the car. Id. He got in the car, told her to "drive away," and they left, travelling to Wood's mother's home located at 17 Carr Lane. Id. at 79-80. Upon viewing the video surveillance tapes, Walker identified the car she was driving pulling up to the stores, and identified Wood getting out of, and back into, that car. Id. at 81-82.

Marcellino Castro, an employee at the deli, testified that he was working behind the counter when he heard gunshots. TR9:24. He saw the shooter run away to the left, westbound. Id. at 25. Castro recognized the shooting victim as a regular customer, and saw him move, afterbeing shot, around the east end of the building. He did not see anyone else in the parking lot. Id. After the shooting, he saw a motor vehicle pass in front of the store, moving from left to right, but was unsure of the color. Id. at 38.

Michael Parrish, the victim of the shooting, testified that he was at the shopping center to buy a couple of things and was in conversation with a person who then shot him four or five times. TR4:23-24. He confirmed that the video surveillance tapes showed him getting shot. Id. at 25. Parish suffered multiple gunshot his chest, buttock, leg and foot. TR9:11. Doctors did not remove a bullet lodged within a centimeter of Parrish's heart, determining that an attempt to remove it would be more lethal than leaving it and monitoring it. Id. at 19-20,

Various Suffolk County Police officers reported to the scene and gave testimony at trial. The first officer on the scene, Fred Mignone, testified that he found Parrish, lying at the east side of the shopping center along with an unidentified bystander. TR1:73. He spoke to the bystander briefly but was treating the victim. Id. at 53. Mignone accompanied Parrish in the ambulance to Stony Brook University Hospital. When Parrish complained that his foot hurt, a paramedic removed Parrish's shoe and a bullet fell out. Mignon placed into a rubber glove to preserve it. Id. at 58.

The lead detective, James Brierton, testified about his investigation at the crime scene on November 4, 2008. He identified and interviewed various civilians as potential witnesses as follows: Wai "Karen" Wong, the owner of a Chinese restaurant in the shopping center; Castro from the deli; Hector Torres from the pizzeria; and Vaughn Taylor. TR3:45, 47. There were no customers in the stores while he was conducting the interviews. Id. at 72. He also interviewed two civilians that were not in the parking lot at the time of the shooting; one was behind the stores urinating and one was in an abandoned house on Erna Dr. Id. at 67-68. Karen heard theshooting, looked out of the window and saw a car, which she described as a Honda or Toyota, but did not see the shooter. Id. at 75. Torres described a Dodge Stratus. Id. at 67. No one at the scene described a Chrysler 300. Id. at 67. Det. Brierton also walked into each store, the parking lot, and the roads at each end of the shopping center looking for evidence. The only evidence he found was shell casings, a hat, and a cell phone, which items were all recovered. Id. at 48.

The bullet recovered from Parrish's shoe and five expended shell casings were determined to have come from the same gun, a .25 caliber weapon, likely a handgun. TR4:18-20. There were no latent fingerprints on the shell casings. TR3:12. No gun was recovered.

B. Post-Shooting Investigation

Det. Brierton continued his investigation on November 5, 2008. He reviewed the video surveillance footage, compared the vehicle image with Kelley Blue Book photos, and alerted other members of the police department to be on the lookout for a Chrysler 300. TR3:58. Also on November 5th, he interviewed Parrish at Stony Brook University Hospital. Id. at 55.

On November 7, 2008, Officer Frank Nolan was on traffic patrol. Prior to his shift, he was instructed to be on the lookout for a Chrysler 300, model year approximately 1999. TR3:25-26. He observed a car matching the description of the suspect vehicle roll through a stop sign and he began to follow it. Id. at 22. The driver made a left hand turn cutting off a pickup truck, and Nolan turned on the lights and sirens on his vehicle in pursuit. Id. at 26. Walker confirmed that she was driving Wood in the Chrysler 300 when a police officer tried to pull the car over. TR7:82 - 83. She finally stopped the car in the driveway at 17 Carr Lane, and Nolan pulled in after. TR3:26, TR7:83. After Walker's vehicle entered the driveway, the passenger side door opened, and the passenger fled. TR3:27. Walker identified Wood as the passenger and testified that he ran after the car stopped in the driveway. TR7:84. Nolan initially pursued Wood until hefled into the woods, and then returned to the vehicle and Walker. TR3:28. Walker was placed under arrest. During the pursuit, Nolan saw a baseball cap fall from Wood's head. Id. at 27. This cap was later retrieved as evidence, TR7:16, 33, and DNA analysis showed a match between the major component of DNA on the cap and the DNA from a swab taken from Wood. TR8:26.2

Det. Brierton spoke to Walker on November 7th while she was in custody. After speaking to her, he returned to Stony Brook University Hospital to speak to Parrish. TR3:60. Parrish executed a statement on November 7, 2008 as taken by Brierton. A redacted version was admitted into evidence at the trial.3 The statement as redacted stated: "I'm currently in Stony Brook Hospital because I was shot four times on Tuesday night. Tonight Detective Brierton came to my room. The guy who shot me in the shopping center, Route 25 and Erna Drive, Coram, I now know him to be Zenell Wood." TR4:39; TR5:20-21.

After leaving the hospital, Brierton returned to his office and put out a computer message that Zenell Wood was wanted for the shooting at the shopping center. TR3:60-61. Wood also was known by the street name "Banga" and has a "Banga" tattoo on his right forearm. TR10:24. Suffolk County Police were unable to locate Wood, who was ultimately apprehended in North Carolina. TR3:61.

C. Jury Selection

The trial judge, Judge Mark Cohen, used the "jury box" system for jury selection, in which groups of eighteen (18) potential jurors were randomly called from the venire,interviewed, and challenged by the attorneys for cause and/or by exercise of peremptory challenges. The process was repeated until the full jury was empanelled.

During round one, the prosecution exercised six (6) peremptory challenges, including one directed at juror 18, Ms. Rosser, the lone black prospective juror in round one. TRJS1:140.4 During voir dire, Rosser provided the following information: she had a relative who is an FBI agent; her son was the victim of a shooting for which no one was tried because her son could not positively identify the shooter; she explained that she raised him to know that "if you cannot positively identify someone, then don't do it." Id. at 87-90. The prosecution initially challenged Rosser for cause, arguing that since she believed that one should not make an identification unless one is one hundred percent certain, she would hold the prosecution to a higher standard than what is legally required. Id. at 138-39. The defense objected to the challenge for cause, and the trial court denied it. Id. at 139. The prosecution then exercised a peremptory challenge as to Rosser, to which the defense did not raise objection. Id. at 140-41.

In round two, the prosecution utilized additional peremptory challenges, including against Mr. Dalia and Ms. Knib. Defense counsel, noting that defendant is black, asserted Batson challenges as to the exercise of peremptory challenges as to both prospective jurors: "[t]hey are both black-Americans. I can recall that...

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