The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:
Petitioner, Leroy Smithwick proceeding pro se seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (1982). On March 3,
1981, Smithwick was convicted by a jury in New York Supreme
Court, Bronx County of Murder in the Second Degree, N.Y. Penal
Law § 125.25(1), and Criminal Possession of a Weapon in the
Second Degree N.Y.Penal Law § 265.03. After the guilty verdict
was entered, Smithwick's counsel moved to set aside the verdict
and for a mistrial pursuant to N.Y.Crim.Proc.Law § 330.30 on
the basis that prejudicial photos were inadvertently submitted
to the jury during deliberations. Appeal Transcript ("Tr.")
571-72. On April 21, 1981, Justice Jack Rosenberg, presiding at
trial, granted that motion. In a written opinion entered May
22, 1981, the court found that the impermissible viewing of the
photographs was prejudicial and therefore, a mistrial was
The District Attorney's office appealed. The Appellate
Division, First Department, reversed the trial court's order
that the verdict be reinstated (People v. Smithwick, 88 A.D.2d 852,
451 N.Y.S.2d 744 (1st Dept. 1982)). The case was then
remanded back to the Supreme Court, Bronx County for imposition
of sentence. On November 8, 1982, Smithwick was sentenced to
concurrent terms of imprisonment of from twenty years to life
for the murder charge and five to fifteen years for the weapons
charge. During this same period, Smithwick was attempting to
have the original order of the trial court, setting aside the
verdict, reinstated. Reargument of the Appellate Division
ruling was denied as was leave to appeal to the Court of
Appeals. Subsequent to sentencing, Smithwick raised these same
arguments to no avail in the Appellate Division on direct
appeal. Leave to appeal to the Court of Appeals was denied. On
June 15, 1988, Smithwick filed another motion before the trial
court to vacate the conviction. That motion was denied on
December 22, 1988, and Smithwick was again unsuccessful in the
Appellate Division, which also denied any further appeals.
Smithwick appears to have fully exhausted his state remedies.
He now seeks this petition on the grounds that: (1) he was
denied a fair trial and due process when the jury inadvertently
viewed photographs that were never admitted into evidence; (2)
his guilt was not proven beyond a reasonable doubt and, in the
alternative, he is entitled to a new trial on the basis of
newly discovered evidence; (3) he was denied the effective
assistance of counsel; (4) he was deprived of a fair trial when
the prosecutor unfairly summed up before the jury and, during
trial, had suborned perjury of a prosecution witness; and (5)
he was deprived of a fair trial by the trial court's unfair
The events subject of this petition arose on the evening of
July 11, 1980 when a fist fight erupted between Smithwick and
an acquaintance of his, Robert Hill, in front of the "Third
Palm Bar" at 165th Street near Amsterdam Avenue in Manhattan.
Tr. 49-52, 174. Hill initiated the argument, complaining about
some "bad cocaine" sold him by Smithwick on an occasion several
months earlier. Tr. 181. James "Boobie" Burgess,*fn1 a witness
to the fight, testified that he and a friend, Derrick Speight,
entered the bar with Smithwick after the fight was over and
that several others were outside and witnessed the fight as
well. Tr. 174, 180.
While inside the bar, Smithwick told Burgess and Speight that
he was going to batter Hill. Tr. 181-182. Speight then asked
Smithwick if he was "strapped," meaning armed with a gun. Tr.
182. Smithwick denied being armed and left the bar.
Approximately fifteen minutes later, Smithwick returned to the
bar carrying a gun in a holster under his clothes which he
showed to Speight. Speight told defendant "You don't have to
kill him." Smithwick answered, "Nobody snucks [sic] me and gets
away with it." Tr. 182-183. Speight and Burgess then left the
Third Palm and went to "Bunky's," a nearby club. Tr. 183.
Smithwick arrived at Bunky's approximately twenty minutes
later. Tr. 183. Smithwick then asked Speight and Burgess if
they would accompany him "so he can beat the s___ [sic] out of
Bobby," meaning Hill. Tr. 183, 199. Burgess agreed to accompany
They took a gypsy cab to find Hill. The driver, James Battle,
was directed to take Smithwick and Burgess across the 155th
Street Bridge into the Bronx to the building in which Hill
lived. Tr. 183-84. When no one answered, they continued back to
Manhattan. As they headed back towards Manhattan, they saw
Hill's car coming from the other direction. Tr. 184-85.
Smithwick told the driver to turn around and follow Hill's car.
They followed Hill to an apartment building at 1184 Cromwell
Avenue, Bronx. Tr. 185. Hill, apparently drunk, was on his way
to visit one of his girlfriends. Tr. 187. Burgess remained a
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 ...