The opinion of the court was delivered by: Edward R. Korman, United States District Judge
Tinh Phan seeks habeas corpus relief from his conviction for one count
of second-degree murder, one count of criminal possession of a weapon in
the second degree, and one count of criminal possession of a weapon in
the third degree. After a jury trial, petitioner was sentenced to
concurrent terms of twenty years to life for the murder conviction, three
to nine years on the second-degree weapon charge, and two to six years on
the third-degree weapon charge. The Appellate Division affirmed the
conviction, People v. Phan, 208 A.D.2d 659 (2d Dep't 1994), and leave to
appeal to the New York Court of Appeals was denied. 85 N.Y.2d 867 (1995).
The underlying crimes were committed on the night of July 30, 1988,
when Thomas Stahl was shot and killed outside of a pool hall in Bay
Ridge, Brooklyn. Petitioner seeks relief on two grounds. First, he claims
that the trial judge deprived him of his right to present a defense by
refusing to permit his counsel to question a witness about the witness'
failure to identify petitioner at a lineup held the morning after the
shooting. Second, petitioner claims that the trial judge erred in
refusing to admit the grand jury testimony of two witnesses, one of whom
testified that petitioner was inside the pool hall at the time of the
shooting. He claims that these witnesses were unavailable at trial
despite his good faith effort to secure their testimony.
At approximately 11:45 to 11:50 P.M. on the night of July 30, 1988,
Thomas Stahl, the victim, and John Halkias, his friend, were walking down
5th Avenue towards a pool hall and bar located on 70th Street between 5th
Avenue and 6th Avenue in Brooklyn. Trial Transcript, 265 ("Tr."). Halkias
was walking ahead of Stahl, and after he passed two or three Asian men,
Tr. 266, an argument started between Stahl and one of the Asian men. Tr.
267; 575-77. As the argument progressed, Stahl, Halkias, and the Asian
men continued walking towards the pool hall. Tr. 268. One of the Asian
men went into the pool hall and emerged with three or four additional
Asian men. Tr. 268-69. Stahl hit one of the Asian men, causing him to
fall down. Tr. 269-70. This man may have hit Stahl first. Tr. 615. At
that point, another one of the Asian men went into the pool hall, and
returned with several more Asian men. Tr. 270. This second group of Asian
men walked toward a black car parked on the corner of 5th Avenue and 70th
Street. One of these men returned to the location of the argument with
his hands behind his back. Tr. 270. This man shot Stahl in the chest, and
as Stahl was falling to the ground, the same
man shot him in the back. Tr. 272-73; 578.
After the shooting, Halkias began running towards the corner of 5th
Avenue and 70th Street. Tr. 274. The shooter and several other Asian men
were "scuffling around with the gun" — passing it off to each other
— and the gun ultimately ended up in the hands of an Asian man
wearing a black tank-top, not the one who shot Stahl. Tr. 581, 632.
Halkias slipped as he was running, heard another shot fired behind him,
and then continued running around the corner towards 69th Street. Tr.
274. Halkias then heard two clicks behind him. He looked back over his
shoulder and saw the "upper part" of the Asian man who was chasing him
and that the man was carrying a gun. Tr. 275. Halkias ran into a Greek
restaurant, located on 5th Avenue between 70th Street and 69th Street.
Tr. 277. The owners of the restaurant asked him to leave, and as he
walked to the front of the restaurant, he saw the Asian man who had been
chasing him through the window of the restaurant, looking at him. Tr.
277-78. When the Asian man ran back towards the corner of 70th Street and
5th Avenue, Halkias ran into a bar on 69th Street and called the police.
Tr. 281-83. On his way, Halkias observed several individuals, who may
have been outside the pool hall when Stahl was shot, running towards the
black car that he had seen earlier on the corner of 5th Avenue and 70th
Street. Tr. 281-82. The car was moving slowly. Tr. 281. An individual
opened the trunk of the car, put something inside, and then the car "sped
off." Tr. 627. Halkias returned to the bar next to the pool hall and went
with one of the detectives to the hospital where Stahl was taken. Tr.
The foregoing narrative came primarily from the testimony of Halkias.
Another witness, Alex Nikolaou, a friend of Stahl and Halkias, testified
that at about 11:50 p.m., he was walking on 5th Avenue towards the corner
of 5th Avenue and 70th Street. Tr. 345. From a distance of 50 to 60
feet, Nikolaou saw three Asian men chasing Halkias and a second
individual named Chris (whom Halkias did not mention) around the corner
towards 69th Street. Tr. 345-47. One of the Asian men was walking away
from the scene. Tr. 347. He also saw one of the Asian men, who had black
hair and was "wearing a black shirt an[d] long sleeves down to [his]
elbows," hand something to a second Asian man, who had black hair and was
wearing a black tank-top. Tr. 347-49. He later saw five Asian men against
the fence, and stated that among them were the Asian men that he had
earlier seen running after Halkias and Chris. Tr. 352-53, 368. Nikolaou
stated that he told Detective David Hearn that he recognized three of the
Asian men who were detained against the fence, and that he testified to
that effect before the grand jury. Tr. 424-25. However, Detective Hearn
testified that Nikolaou did not tell him that he recognized three of the
Asian men against the fence, Tr. 918, and the prosecutor stipulated that
Nikolaou was not asked at the grand jury whether he recognized any of the
Asian men being held against the fence, and therefore he did not answer
to that effect. Tr. 434.
Petitioner was arrested on the night of the incident. While it is not
entirely clear, the basis for the arrest appears to have been a statement
by James McGakey, who had witnessed the incident, that a group of five
Asians (of which petitioner was one) were "involved" in the shooting.
Tr. 98-99 (Wade Hearing, Sept. 29, 1989). At a lineup held the following
morning, McGakey identified petitioner as the person who shot Stahl. At
the same lineup, Halkias identified petitioner's co-defendant, Nguyen, as
the person who shot Stahl. By the
time the case went to trial, Halkias was unable to identify anyone as the
person who shot Stahl, although he identified Nguyen as the person who
shot at him. This left McGakey as the only witness against petitioner.
McGakey testified that he was directly across the street from the pool
hall at 11:50 P.M. on the night of the incident. He had walked his
girlfriend home, and was traveling via skateboard on 70th Street, from
6th Avenue to 5th Avenue. Tr. 574-75. McGakey stated that he saw five
Asian men circling Stahl in front of the pool hall, and that Stahl and
one of the Asian men were arguing and pushing each other. Tr. 576-77. He
testified that a different Asian man shot Stahl in the chest and back,
Tr. 577-78, and identified petitioner at trial as this shooter. Tr. 578.
He claimed that his view of petitioner's face was unobstructed, described
the lighting condition in front of the pool hall as "very bright," due to
the street light, the light from the pool hall, and the light from a sign
that read "billiards, pool room," Tr. 579, 611, and added that there was
a street light on his side of 70th Street as well. Tr. 579. He also
testified that he waited with Stahl in the bar next to the pool hall
until the paramedics arrived, and that upon exiting the bar, several
police officers directed him across the street where five Asian men were
detained by the police. He told a detective that he recognized one of
these men as the individual who shot Stahl. Tr. 586-87. However, Officer
George Massa testified at the Wade hearing that McGakey told him that
"those five male Asians were involved in the shooting." Tr. 87 (Wade
Hearing, Sept. 29, 1989). At the lineup held the next day comprised of
the five Asian men, McGakey identified petitioner as the person who shot
McGakey himself had a criminal record, and on cross-examination defense
counsel elicited several inconsistencies between McGakey's trial
testimony and his testimony at the pretrial Wade hearing. For example,
McGakey testified at the Wade hearing that he witnessed the incident from
a distance of thirty-five feet, whereas at trial he testified that the
distance was fourteen feet. Tr. 608-09. McGakey explained at trial that
he first saw the argument from a distance of thirty feet, but witnessed
the actual shooting from a closer distance because he was proceeding
across the street. Tr. 609. When defense counsel contradicted this
account by introducing McGakey's Wade hearing testimony, in which he
stated that he was between two parked cars when he witnessed the incident
because he had stopped there when he saw the gun and heard the shots,
Tr. 609, 623, McGakey explained that he was between two parked cars
during the first shot, but had walked into the middle of the street by
the time of the second shot. Tr. 609. Lastly, McGakey testified at the
Wade hearing that the incident took fifteen to twenty minutes, but stated
at trial that the "whole scene" lasted about ten minutes. Tr. 619-20.
Defense counsel also drew out several inconsistencies between McGakey's
account of the incident and the accounts of several of the prosecution's
other witnesses. For example, McGakey testified that Stahl hit the Asian
man with whom he was arguing after the man hit him, and that neither of
the two fell down. Tr. 577, 615. Halkias, however, testified that Stahl
hit the Asian man, not that the Asian man hit Stahl, and that the man did
fall to the ground. Tr. 269-70. Additionally, McGakey testified at trial
that the shooter was wearing a black shirt with rolled-up sleeves, black
pants, and a white necklace, Tr. 579-80, while Detective Hearn testified
that petitioner's necklace was "either a black or a dark brown." Tr.
918. McGakey also testified that the shooter was "already there" among
the Asian men who
surrounded Stahl. Tr. 628. Halkias, however, testified that a group of
Asian men exited the pool hall, walked to a black car parked on the
corner of 5th Avenue and 70th Street, and that one of these men walked
towards the location of the argument with his hands behind his back and
shot Stahl. Tr. 270-72.
This discrepancy cannot be reconciled by the suggestion "that, by the
time McGakey arrived on the scene, he had missed the initial events
leading up to the shooting, as described by Halkias." Supplementary
Affidavit in Opposition to Petition for a Writ of Habeas Corpus, at
38-39. McGakey, however, did not appear on the scene just before Stahl
was shot. McGakey testified that at 11:50 P.M., he saw Stahl "getting
into an argument with a few male Orientals across the street in front of
the pool hall," Tr. 575, and that he observed the argument and the
shooting for a "Few minutes. No longer. Maybe ten minutes. The whole
scene, when I got there, the argument started so I got to see the whole
thing." Tr. 619-20. He also testified that the argument progressed from a
verbal to a physical one, Tr. 615, and stated, "I just saw [Stahl]
arguing with another Asian Oriental and then they were both pushing each
other back and forth and then another Oriental had a gun, he pulled out a
gun and shot [Stahl]." Tr. 577.
The remaining evidence essentially consisted of testimony concerning
the shooter's appearance. There were 15 to 20 Asians in the area, and
five Asians surrounding Stahl. Tr. 616. McGakey testified that all
(except one) wore black shirts or tank tops. Tr. 617. After the
shooting, Halkias described the shooter as wearing a black shirt and
black pants. Tr. 331. McGakey does not appear to have provided a
contemporaneous description of the shooter, although he did point to five
Asians (of which petitioner was one) as being involved in the shooting.
Tr. 99 (Wade Hearing, Sept 28-29, 1989). McGakey testified at trial that
the shooter, whom he identified at trial as petitioner, was wearing "a
black shirt rolled up with a white necklace," Tr. 616, although at the
Wade hearing McGakey seemed confused about whether the shooter wore a
black tank top or a black shirt, Tr. 18, 21-23 (Wade Hearing, June 29,
1990). McGakey also testified that the shooter had black hair that was
"puffy on top, came short on the end to the side burns, then long in the
back," and was between five feet six inches and five feet eight inches
tall. Tr. 618. Halkias testified at trial that the shooter was wearing
black pants and a black T-shirt with rolled-up sleeves, had black hair
that was "short on the side and kind of longish on top," was about five
feet two inches tall, and appeared to be 18 or 19 years old. Tr. 270-71,
The photograph of the lineup the next morning shows that of the five
participants, only two wore black shirts. The co-defendant, Nguyen, wore a
black tank-top, and petitioner wore a black shirt with sleeves that
appear to be rolled up, and some sort of necklace. The photograph of the
lineup showed that petitioner's clothing matched the description given by
McGakey at trial, although the necklace, rather than being white, more
closely resembles the "leather thing" described by Detective Hearn who
saw petitioner at the precinct. Tr. 901. Moreover, a photograph of
petitioner when he was booked does not show his hair was "long in the
back" as McGakey testified.
Petitioner was convicted of one count of second-degree murder, one
count of criminal possession of a weapon in the second degree, and one
count of criminal possession of a weapon in the third degree.
Petitioner's co-defendant, Nguyen, who had confessed to having
participated in the chase of Halkias, Tr. 38 (Hearing, July 11, 1989), was
convicted of the attempted murder of Halkias and the same two counts of
criminal possession of a weapon. (Nguyen had turned down a generous plea
offer that was conditioned on his agreeing to testify against
petitioner. Tr. 5-6 (Wade Hearing, Sept. 28-29, 1989). When first
questioned, he repeatedly said that someone named Richie shot Stahl. Id.
10, 39. A few weeks later at another interrogation he again told the
detectives that they had arrested the wrong man as the shooter of Stahl,
id. 36-37, and after further interrogation said that they had the right
person. Id. 40. The references to petitioner were redacted from Nguyen's
Petitioner later moved to set aside the verdict pursuant to New York
Criminal Procedure Law § 330.30, on grounds of newly discovered
evidence. This evidence consisted of tile affidavit of Helen Chen, a
friend of petitioner's co-defendant, in which Chen described how
petitioner's co-defendant and "people on the street" believed that an
individual named "Richie" had committed the crime, Chen searched for and
found Richie, and Richie admitted shooting Stahl and chasing Halkias.
Chen claimed that she recorded a conversation in which Richie made these
admissions. This tape was submitted with the § 330.30 motion. The
trial judge held hearings over a three-month period. He ultimately denied
the motion, finding that the new evidence merely contradicted trial
testimony, and would not have resulted in an acquittal. In July 1991,
petitioner was sentenced to concurrent terms of twenty years to life for
the murder conviction, three to nine years on the second-degree weapon
charge, and two to six years on the third-degree weapon charge.
On January 11, 1996, petitioner filed a motion to vacate the judgment
of conviction pursuant to New York Criminal Procedure Law § 440.10,
on several grounds that are not relevant here. On April 7, 1997, during
the pendency of his § 440.10 motion, petitioner filed a petition for
a writ of habeas corpus. Petitioner later requested, and was granted,
permission to withdraw his habeas petition without prejudice so as to
exhaust his state court remedies. On April 16, 1997, counsel was
appointed on the § 440.10 motion. Petitioner's § 440.10 motion was
denied on June 30, 1997. Petitioner's application for leave to appeal the
denial of his § 440.10 motion was denied by the Appellate Division on
September 17, 1997.
Petitioner then filed a petition for a writ of habeas corpus. I
assigned counsel to represent him. Following a hearing, the case was
closed for administrative purposes to allow petitioner to exhaust his
state court remedies with respect to an aspect of his ineffective
assistance of counsel claim. On May 1, 2000, petitioner filed a motion
for a writ error coram nobis on the ground that appellate counsel was
ineffective for failing to raise the issue of whether trial counsel was
ineffective in failing to argue for the admission of evidence that
Halkias had identified petitioner's co-defendant at the pretrial lineup.
After the motion was denied, People v.
Phan, 276 A.D.2d 505 (2d Dep't 2000), the case was reopened.
The Supreme Court has held that the right to present a defense is one
of the "minimum essentials of a fair trial." Chambers v. Mississippi,
410 U.S. 284, 294 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986)
("Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation clauses of the
Sixth Amendment, the Constitution guarantees criminal defendants `a
meaningful opportunity to present a complete defense.'" (citations
omitted)). Petitioner contends that he was denied his right to present a
defense when the trial judge prevented him from eliciting that a witness
had identified ...