few steps behind Smithwick while he followed Hill. Tr. 187.
Hill then entered the elevator, near the entrance to the
building, with Smithwick following. Tr. 187-207. Burgess, some
distance behind Smithwick, then heard Smithwick say "You jive
motherfucker," and a few gunshots. Tr. 188, 192, 200. Hill was
fatally shot and lay dead in the elevator of his girlfriend's
apartment building at 1184 Cromwell Avenue until his body was
found at approximately 2:00 a.m. of July 12, 1981. Tr. 38.
Burgess testified that the gun shots took him by surprise and
that he did not realize that Smithwick was either carrying a
gun or intending to kill Hill. Tr. 189-192. Burgess saw
Smithwick close the elevator door and replace the pistol into
the holster. Tr. 191, 192. Burgess then asked Smithwick: "What
did you shoot him for?" to which Smithwick replied, "Don't say
nothing, just let's get out of here." Tr. 188. The two men left
the building and hailed separate cabs. Tr. 188.
There was testimony that the following day, Troy Jones,
Smithwick's close friend, inquired into Hill's murder. He and
Smithwick spoke for about ten minutes when Jones asked if
Smithwick did "it"? Smithwick did not answer directly, but
responded, "look what he did to me. He fucked me up." Tr.
93-94, 118, 129. Two days later, Jones spoke to Smithwick
again, eliciting from him that on July 12th, he and Burgess
spotted Hill, followed him, and that Smithwick opened the
elevator door, fired the gun, and walked out. Tr. 94-98, 120.
After the close of all of the evidence, the Court charged the
jury and, inter alia, instructed them that they could see all
exhibits admitted into evidence. Tr. 564. When the jury was
sent out to deliberate, the clerk of the courtroom
inadvertently gave the jurors an envelope containing seven
black and white photographs only four of which were actually
admitted into evidence. Tr. 569, 695-698 and Exhs. 1-4. The
three photographs that were not in evidence depicted Hill lying
in the elevator after he was shot. Tr. 579, 699-701, Exhs. 4-6.
After deliberating for one hour, the jury recessed for
dinner. While they were at dinner, the clerk retrieved the
three photographs which were not admitted into evidence. Tr.
570. Because the jury was exposed to information not formally
admitted into evidence, defense counsel moved for a mistrial on
the ground that the jury was prejudiced by viewing the extra
photographs. Tr. 571-572. Justice Rosenberg brought the jury
back, asking the foreman about the photographs. Tr. 573. The
foreman acknowledged having seen the photographs but stated
that the jury was not prejudiced thereby. Tr. 574. After being
sent back once again to deliberate, the jury took approximately
twenty four hours to reach a verdict. Smithwick was found
guilty on all counts. Post conviction polls of the eleven other
jurors revealed no reliance on the three photographs not in
evidence; they denied any impact of the photos on their
reaching a verdict of guilty. Tr. 607-610, 617-619.
I. Effect of Photographs Not in Evidence:
Smithwick maintains that the photographs which were
inadvertently given to the jury were prejudicial and therefore
require setting aside his conviction because Smithwick's
constitutional rights to a fair trial and due process were
violated. The mere impermissible submission of these
photographs to the jury does not in itself mandate upsetting a
conviction. See United States v. Burket, 480 F.2d 568, 571 (2d
Cir. 1973) ("a sufficient answer to the attempt to secure a
reversal on this score [transmission to the jury of exhibits
not in evidence] might be that defense counsel was as
responsible as the prosecutor for seeing to it that only proper
exhibits were sent to the jury room.")
In habeas petitions, it is presumed that the jury obeyed the
court's instruction to determine petitioner's guilt based only
on the proof in the evidence. Francis v.
Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85
L.Ed.2d 344 (1985). As a general rule, petitioner must
establish that the asserted error was so gross as to warrant
the granting of the writ. A valid conviction should not be set
aside if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond a
reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 106
S.Ct. 1431, 89 L.Ed.2d 674 (1986). The court must apply a
balancing test based on that harmless error analysis. Williams
v. Henderson, 451 F. Supp. 328 (E.D.N.Y.), aff'd without op.,
584 F.2d 974 (1978).
In this case, Smithwick suffered no prejudice by the
photographs inadvertently having been given to the jury. In
fact, Court's Exhibit # 4, not in evidence, was substantially
similar to a photograph which had been admitted into evidence
as People's Exhibit # 1. These black and white photographs
depicted the decedent's body lying dead in a pool of blood
inside the elevator. Blood can be detected both on the
decedent's shirt and body. A pool of blood can be detected on
the floor of the elevator. The other two unadmitted photographs
differed slightly in that they depicted the body at a somewhat
closer distance. The state court decided as a matter of fact
that the difference in distance did not cause undue prejudice
to Smithwick at trial. None of the photographs showed the
bullet points of entry.
No photograph of a deceased person is going to be pleasant.
In this case, the wounds on the decedent's body cannot be seen
from the photographs. Therefore, the degree of "grotesqueness"
is irrelevant and since similar photographs were admitted, the
unadmitted ones could only have been a harmless error when
viewed by the jury. See Chapman v. California, 386 U.S. 18,
23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (even error
of constitutional magnitude may be harmless "beyond a
reasonable doubt.") Moreover, any potential prejudice was
squelched by the careful scrutiny and instruction by Justice
Rosenberg. In this case, the mistake was corrected quickly and
the photographs were removed unobtrusively. Indeed, the jury's
brief exposure, in the first hour of a twenty four-hour
deliberation, to the three unadmitted crime-scene photographs
constituted no more than a harmless error.
That the jury took time and continued to deliberate for a
full day after having the photographs speaks also of the
harmlessness of the error. Indeed, it was never determined
whether any of the jurors saw the photos for more than a few
seconds if at all. The post-verdict sworn statements of the
jurors indicated that the photographs had little or no impact
on the deliberative process and that the jurors reached a fair
and impartial verdict based entirely on the independent and
compelling evidence. Compare United States ex rel. Owen v.
McMann, 435 F.2d 813, 818 (2d Cir. 1970) (where jurors rely on
"extra-record" facts in the course of deliberations to such
extent that prejudice would result in the verdict, then verdict
must be deemed inherently lacking in due process), cert.
denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971).
Additionally, these photographs were not "crucial, critical and
highly significant" and did not remove reasonable doubt that
would have existed but for these photographs. See Collins v.
Scully, 755 F.2d 16 (2d Cir. 1985) (standard on habeas review
concerning denial of fair trial and due process from erroneous
admission of evidence is whether such evidence was "crucial,
critical, or highly significant."); United States v. Bowers,
660 F.2d 527 (5th Cir. 1981). The record before me clearly
shows that it was the great weight of other direct and
circumstantial evidence which lead to Smithwick's conviction,
regardless of the jury's slight exposure to the photographs.
II. Guilt Beyond a Reasonable Doubt:
It is well settled that the federal court's role in
collateral review of the state record is to consider whether
there was sufficient evidence to justify any rational trier of
fact to find the essential elements of the crimes were
committed by the petitioner beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); Hawkins v. West, 706 F.2d 437 (2d Cir.
1983). The findings of the state court are presumptively
correct and entitled to a high degree of deference as that
court was in the best position to view the credibility of the
witnesses and all of the facts as they were adduced. Sumner v.
Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d
480 (1982). Moreover, I am constrained to view the evidence in
light most favorable to the prosecution and determine whether
any rational trier of fact could have found the essential
elements of the crimes charged. Jackson v. Virginia,
443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). Here,
the quality and quantity of evidence adduced by the prosecution
was certainly sufficient to warrant the jury's verdict of
Looking to the record in order to establish if the evidence
is sufficient, it is undisputed that Smithwick and Hill, the
decedent, quarrelled earlier in the evening of the murder.
According to Burgess, although Hill was the initial aggressor,
he physically injured and humiliated Smithwick in front of
several onlookers. Burgess' testimony is corroborated by Jones'
testimony. Jones received Smithwick's admission of guilt in the
fatal shooting of decedent Hill. Finally, Hill was found in the
elevator with two bullets in his brain which had been shot at
close range. With regard to Smithwick's sufficiency of the
evidence claim, any rational trier of fact could have found
Smithwick guilty beyond a reasonable doubt. See Mallette v.
Scully, 752 F.2d 26, 31 (2d Cir. 1984) (applying Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Smithwick also maintains that due to newly discovered
evidence, which includes the testimony of Anthony Cook, a
jailhouse confidant of Burgess, would be applicable to show
Smithwick's innocence and that on the basis of this new
evidence, Smithwick should be entitled to a new trial. Federal
habeas relief is available on grounds of newly discovered
evidence only if the new evidence discovered bears on
constitutionality of petitioner's detention. Swindle v. Davis,
846 F.2d 706 (11th Cir. 1988). Evidence which goes only to the
guilt or innocence of petitioner is not sufficient to require
habeas corpus relief. See id. (citing 18  U.S.C. §
2254 (1982)) (newly discovered evidence that victim was killed by
another individual is not reviewable because it clearly goes to
the guilt or innocence and thus does not form the basis for
habeas corpus relief); Walker v. Lockhart, 763 F.2d 942 (8th
Cir. 1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3332, 92
L.Ed.2d 738 (1986). Even if this new evidence is true and
applicable, it pertains to the question of Smithwick's guilt or
innocence and not to the constitutionality of his detention,
thus, this is not a basis for a federal habeas corpus relief.
This testimony is relevant only inasmuch as it perhaps should
have been used to impeach Burgess' credibility. That, however,
is not collaterally reviewable, considering that no error of
constitutional magnitude arose as a result of its omission.
III. Ineffective Assistance of Counsel:
The Sixth Amendment to the Constitution affords all people
right to counsel constrained to render "reasonably effective
assistance given the totality of the circumstances." Smithwick
alleges that he was denied this effective assistance because
his counsel failed to: (a) request a circumstantial evidence
and missing witness charge; (b) object to an improper summation
by the prosecutor; (c) request a charge of the lesser included
offenses of first and second degree manslaughter; (d) object to
the court's alibi charge; and (e) impeach an unreliable
eyewitness with a prior inconsistent statement.
In order to prove ineffective assistance of counsel,
petitioner must prove that his attorney's actions, viewed in
the totality of the circumstances, were unreasonable and that
petitioner suffered some prejudice because a reasonable
probability exists that, but for counsel's unprofessional
errors, the result of the trial would have been different.
Petitioner must show that counsel's performance fell below an
standard of reasonableness." Strickland v. Washington,
466 U.S. 668, 687-89, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is
all too easy for a court, examining counsel's
defense after it has proved unsuccessful, to
conclude that a particular act or omission of
counsel was unreasonable. . . . A convicted
defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel
that are alleged not to have been the result of
reasonable professional judgment. The court must
then determine whether, in light of all the
circumstances, the identified acts or omissions
were outside the wide range of professionally
competent assistance. . . . [T]he court should
recognize that counsel is strongly presumed to
have rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional conduct.
United States ex rel. Roche v. Scully,