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February 13, 1991


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 warranted.

The District Attorney's office appealed. The Appellate Division, First Department, reversed the trial court's order and directed 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 jury charge.


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 Smithwick.

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 ...

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