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NOBLE v. KELLY

February 28, 2000

CASIM NOBLE, PETITIONER,
V.
WALTER R. KELLY, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Sand, District Judge.

  OPINION

Casim Noble, a prisoner in state custody, petitions this Court for a writ of habeas corpus. After a thorough examination of the record, we conclude that the Petitioner's conviction was obtained in violation of his rights to present witnesses in his defense and to the effective assistance of counsel, both of which are guaranteed by the Sixth Amendment. The petition is, therefore, granted.

BACKGROUND

On October 26, 1989, at about 8:00 p.m., Dwight Usher, then 17 years old, was shot four times. Although the shooting was not fatal, the victim suffered severe injuries to his chest, groin, thigh, and elbow. After several operations and a week in the hospital, Usher recovered, though two bullets remain lodged in his body.

The shooting occurred outside a bar, called the Around the Corner Bar, in Kiamesha, New York. The Sullivan County Sheriffs Department conducted an investigation, and on January 24, 1990, a Grand Jury in that county returned a five-count indictment charging three individuals with various crimes in connection with the shooting. (See Indictment 38/90.) Those three individuals were the Petitioner, Derrick Pittman, and Rufus Middleton. (Id.) Each defendant was charged with attempted murder, first degree assault, and criminal use (two counts) and possession of a firearm. (Id.)

A jury trial commenced in New York State Supreme Court in Sullivan County (Kane, J.) on March 14, 1991. The trial centered around the conflicting testimony of four individuals who claimed to have been eyewitnesses to the shooting.*fn1 Two of those witnesses — Troy Leibert and the victim, Dwight Usher — testified for the prosecution. The other two witnesses — Melvin Walker and Raphalena Andrews — testified for the Petitioner.*fn2 Because of its centrality to our resolution of this petition, we summarize the eyewitness testimony in some detail.

A. The Eyewitness Testimony

1. Leibert

The first eyewitness to testify was Troy Leibert. Leibert testified that throughout the summer of 1989, he and his cousin, Terence Duncan, had been making regular trips to the Sullivan County area from their homes in New York City. (See id. at 115.) Although Leibert denied any use of illegal drugs or involvement in drug trafficking, during cross-examination defense counsel elicited that he had once been convicted for possession of drug paraphernalia. (See id. at 186-87.) Leibert testified that on October 26, 1989, he traveled to Sullivan County by bus with Melvin Walker and with Walker's girlfriend, Raphalena Andrews. (See id. at 117-18.) Leibert was scheduled to appear in court that day in Sullivan County in connection with a trespassing charge. (See id.) When his court appearance was completed, Leibert, along with Walker and Andrews, took a taxicab to the Around the Corner Bar to meet up with Duncan, who they believed was inside. (See id. at 120.)

Leibert testified that upon their arrival at the bar, while standing about 30 to 35 feet away (see id. at 133), he saw Duncan's car parked outside and noticed that Dwight Usher was seated in the front passenger seat (see id. at 123-24). Leibert then saw "three guys come down" a nearby hill and approach the car. (Id. at 124-26.) One of them (later identified as Pittman (see id at 135))*fn3 knocked on the window, prompting Usher to roll it down. (See id. at 126.) Words were exchanged and Usher eventually got out of the car. (See id. at 127.) While the argument continued, one of the three (later identified as Noble (see id. at 137)) "pulled out a gun and ... shot" Usher, (id.), after which all three ran back up the hill (see id. at 145). Leibert, Walker, and Andrews then ran into the bar and told the bartender to call an ambulance. (See id. at 148.) Without waiting for the ambulance to arrive, however, Leibert, Walker, and Duncan put Usher in the car and drove him to the Sheriffs Department headquarters. (See id. at 150-51.)

2. Usher

The second eyewitness to testify was the victim, Dwight Usher. Usher, who also resided in New York City, testified that he began making trips up to Sullivan County in September, 1989 to sell crack cocaine. (See id. at 221-24.) His territory was the Around the Corner Bar. (See id.) Usher explained that initially he worked selling crack for a friend, John Clairborn, but that, at some point, he met Terence Duncan. (See id. at 229-30.) Because Duncan offered him more money than Clairborn had been paying, Usher switched allegiances and began to sell crack for Duncan. (Id.)

Usher testified that on October 26, 1989, at around 7:45 p.m., he saw "a Black male standing on the hill next to the Around the Corner bar... ." (Id. at 237.) Although he had seen that person a few times and knew that his name was Rufus,*fn4 he had never met him. (See id. at 237-38.) Usher explained that because he had never met Rufus, he "confronted him and asked him why was he up here...." (Id. at 237, 240-42.) Rufus responded that it was none of Usher's business and told him "to get out of his face." (Id. at 240.) Usher then went back to the bar, asked Duncan for the keys to his car, and waited in the front passenger seat of the car listening to music on the radio. (See id. at 242-43, 245.) About two or three minutes later, he saw three males coming down the hill approaching the car (See id. at 244.) One of the three, later identified as the defendant Derrick Pittman (see id. at 246), asked him to get out of the car (see id. at 245). According to Usher, Pittman asked him why he had confronted Middleton (see id. at 247), then backed up (see id. at 249). "And, " Usher concluded, "that's when [Noble] pulled out the gun and shot me." (Id.) As Usher fell to the ground, he saw his three assailants run up the hill. (See id. at 251.)

Usher also testified that he recalled Leibert, Duncan, and Walker putting him in the car and driving him to the sheriffs office. (See id. at 253.) He recalled a conversation with a "female sheriff' who asked him who had shot him. He remembered that he told her that "Casim and Rufus" had shot him. (Id. at 253-54.) The sheriff, Corporal Marilyn Cook, testified at the trial and corroborated Usher's account. (See id. at 369, 380.)

3. Walker

Melvin Walker, the third eyewitness, was called by the Petitioner. At the time of the trial, Walker was incarcerated on narcotics charges and pursuant to a conviction for attempted rape. On October 26, 1989, however, Walker resided in New York City. That day, he testified, he traveled to Sullivan County by car with Troy Leibert because Troy was scheduled to appear in court. (See id. at 600.) Walker testified that he had been inside the Around the Corner Bar that evening prior to the shooting. At one point, he went outside. (Id. at 607.) According to Walker, when he left the bar, Leibert, Andrews, Duncan, Noble and Pittman were all inside. (See id. at 609, 692.)*fn5

Walker testified that, upon exiting the bar, he went across the street to a hotel to make a phone call. (See id.) On his way back to the bar a few minutes later, while standing only six or seven feet from Duncan's car, he saw Usher sitting in the car and saw "three people" talking to him. (Id.) Usher got out of the car and one of the three men shot him. (See id.) Walker testified that because it was dark (id. at 612) and because Usher's assailants had hoods pulled over their faces (see id. at 681), he could not identify them (id. at 608-09). However, Walker also testified that he knew Pittman (see id. at 646) and Middleton (see id. at 647) from New York, and recognized Noble from Sullivan County, and he was certain that those three individuals had not been involved. (See id. at 695-96.) Finally, Walker testified that he went to the sheriffs department with Usher, and later visited him at the hospital. At one point, while they were in the hospital, Walker testified that Usher asked him "who did it, who did it, " and Walker responded that he didn't know. (See id. at 615.)

4. Andrews

The final eyewitness to testify was Walker's former fiancee, Raphalena Andrews. Andrews had not been identified as a witness in advance of trial. The District Attorney told the court that he had tried unsuccessfully to locate Andrews. (See id. at 439.) When Andrews testified, she explained that she was appearing in response to a telephone call she had received during the trial from the Petitioner's mother, who asked her to testify. (See id. at 762.)

Andrews claimed that, on the night in question, she was standing with Leibert, having just gotten out of a taxicab, when the shooting occurred. (See id. at 758.) Like Walker, Andrews testified that she could not see the shooter (see id. at 760) because it was dark (see id. at 769) and because he and his two companions were wearing hoods that covered their faces (see id. at 768). Moreover, Andrews testified, like Walker, that on the day of the shooting she was familiar enough with Middleton and Noble that she could recognize them and was certain that neither of them had been involved with the shooting. (See id. at 765.)

B. The Alibi and Mistaken Identity Defenses

At trial, Noble and his co-defendants attempted to discredit Leibert's and Usher's testimony. Defense counsel suggested, on cross-examination, that Leibert's account was untrustworthy because of the distance he stood from the shooting (30-35 feet), the lack of lighting (see id. at 202), and the fact that the car would seem to have blocked his view of the action (see id. at 202-04). Usher's credibility was attacked by the fact that he had confessed to dealing crack, and by the existence of some inconsistencies between his trial testimony and his testimony before the Grand Jury.*fn6 Noble also tried to discredit Usher by calling Valerie Hoar, a nurse who was working in the emergency room that night, to testify. (See id. at 538-39.) Hoar testified that she overheard a conversation between Usher and Lieutenant Whalen (Suarez's partner) in which Whalen asked Usher if he knew who had shot him and Usher said that he did not. (See id. at 541.)

In addition to the foregoing challenges to the prosecution's evidence and the testimony of the two witnesses who claimed that Noble and his co-defendants had not been involved, Noble attempted to present two principal defenses at trial. He tried to establish that (1) he had been inside the bar when the shooting occurred; and (2) it was three different individuals — named Cat, Shaka, and Gary — who confronted and shot Usher and that he and his co-defendants had been mistakenly identified. Several of the "witnesses provided circumstantial evidence of the misidentification theory. Usher testified that just prior to the confrontation with Rufus Middleton, he had been involved in a confrontation with Cat, Shaka, and Gary. (See id. at 283-84.) During that confrontation, according to Usher, Cat held him in a headlock and broke a gold chain he had been wearing around his neck. (See id. at 284, 294, 316-23, 327-29.) Walker also testified that he had witnessed, and even been involved in, the altercation. (See id. at 607.) Detective Suarez confirmed, on cross-examination, that he had been involved in drug investigations in the Sullivan County area and that he was familiar with the names Cat, Shaka, and Gary in that context. (See id. at 499.) Finally, Corporal Cook's notes, which she took during the initial investigation on the night of the shooting, included a notation which read "Saab 9,000 — Cat." (Id. at 390, 393.)

The principal evidence, however, that Noble hoped to present on both his alibi and mis-identification theories was the testimony of Steven Yamagata. Defense counsel represented to the court that, if called, Yamagata would testify that "he was there that night and he saw the prior fight between Cat, Shaka, and Gary, and that he was inside the bar when he heard the shots ... and Casim was playing [a] video game, and they both exited the bar together." (See id. at 554; see also Yamagata Aff.) The prosecution objected to both elements of Yamagata's testimony. With respect to the claim that Yamagata had been in the bar with Noble when the shooting occurred, the District Attorney argued that such testimony should be excluded because it constituted an alibi defense and the Petitioner had failed to respond to the People's demand for notice of an alibi.*fn7 (See Tr. at 554-56.) After giving Petitioner's counsel an opportunity to research the question and to present any relevant information, and after considering and rejecting an adjournment rather than exclusion, the court sustained the People's objection. (See id. at 573-74.) With respect to Yamagata's testimony about the altercation between Usher and Cat, Gary, and Shaka, the court initially decided to permit Yamagata to testify. (See id. at 575.) The court explained that it would not permit testimony from Yamagata as to "the reason for the confrontation" (id. at 580), but that because there had been "testimony that one of the individuals involved in this altercation was in fact in the area at the time of the commission of the crime, " it would permit "the testimony with respect to the altercation." (Id. at 581.) Later, however, after additional argument, the court revised its ruling, reasoning that because Usher had testified about the altercation, the purpose of calling Yamagata to testify about the altercation was only to impeach Usher's testimony. (See id. at 593-94.) The court then excluded the testimony on the ground that it was a "collateral issue upon which a third-party witness cannot be called to impeach the testimony of a witness." (Id.) Consequently, Yamagata never testified.

C. Procedural History

On March 21, 1991, after a little more than one hour of deliberation, the jury returned guilty verdicts for each defendant on each count of the Indictment.*fn8 The court entered a judgment of conviction against Noble on May 17, 1991 for attempted murder in the second degree, criminal use of a firearm in the first degree (two counts), and criminal possession of a weapon in the second degree. He was sentenced to a prison term of 12 1/2 to 25 years. (See Answer at ΒΆ 4.) The Appellate Division affirmed the convictions. See People v. Noble, 209 A.D.2d 735, 618 N.Y.S.2d 123 (N.Y.App. Div. 1994). With respect to the exclusion of Yamagata's alibi testimony, the court did not address the merits but affirmed on the ground that "[e]ven if [it] were to find that [the trial court] committed error when it precluded this testimony, ... such error would be harmless in view of the overwhelming evidence of guilt." Id. at 124. The ...


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