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PHAN v. GREINER

October 3, 2001

TINH PHAN, PETITIONER,
v.
CHARLES GREINER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Edward R. Korman, United States District Judge

  MEMORANDUM & ORDER

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.

BACKGROUND

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. 283-84.

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 Stahl.

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, 293.

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.

I note parenthetically that the evidence of McGakey's lineup identification of petitioner was excluded at trial. The record does not contain an oral or written decision for excluding the evidence, although it does indicate that the trial judge was concerned that the same five Asians who McGakey had identified the night before as being involved were the participants in the lineup. Tr. 71-79 (Wade Hearing, September 28-29, 1989). In any event, he found that there was an independent source for McGakey's in-court identification.

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 statement.)

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.

DISCUSSION

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 ...


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