The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Loretta A. Preska, United States District
Pro se petitioner Anthony Gillespie seeks a writ of habeas
corpus from his September 27, 1999 conviction of second degree
burglary and sentence to fifteen years imprisonment as a
predicate felon. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v.
Gillespie, 287 A.D.2d 288, 288, 731 N.Y.S.2d 21, 22 (1st Dep't
2001), appeal denied, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).
Gillespie's habeas petition raises four grounds: (1)
prosecutorial misconduct by submitting insufficient evidence to
the grand jury (Pet. ¶ 13(1)); (2) the prosecutor violated the
Brady rule by failing to give defense counsel the police lab
report (Pet. ¶ 13(2)); (3) he was denied his due process right to
a fair trial due to: (i) admitting Molineux evidence even
though the menacing charge had been withdrawn; (ii) failing to
dismiss a juror whose "first husband was killed in a terrorist
bombing"; (iii) failing to issue a supplemental instruction to
the jury; (iv) concealing jury notes from defense counsel; (v)
depriving petitioner of his right to be present during read-back
of the jury's notes (Pet. ¶ 13(3)); and (4) he was denied effective assistance of
appellate counsel (Pet. ¶ 13(4)). (See generally Dkt. No. 10:
Gillespie Br.; Dkt. No. 11: Gillespie 6/28/04 Letter to Court.)
For the reasons set forth below, Gillepsie's habeas petition
should be DENIED.
Petitioner Anthony Gillespie was arrested on Thanksgiving Day,
November 26, 1998, and charged with second degree burglary and
menacing. (State Opening: Trial Transcript ["Tr."] 411-12.) The
charges stemmed from Gillespie's placing a bottle that looked
like a "Molotov cocktail" at the front apartment door of his
former girlfriend, Bridgette Brooks.
Gillespie's Relationship with Former Girlfriend Bridgette
At trial, Gillespie's former girlfriend, Bridgette Brooks,
testified to the events of Thanksgiving Day, 1998, and to
background information concerning Gillespie's violent
relationship with her. (See generally Brooks: Tr. 542-619.) The
prosecutor informed the jury that testimony concerning the
couple's history was to show the "context of [their]
relationship" so the jury could understand Brooks' legitimate
fear on Thanksgiving Day. (State Opening: Tr. 404; State Closing:
Tr. 719.) The evidence was introduced to demonstrate that
Gillespie "was willing to hurt her before and that he would
intend to hurt her again. And he knew that she knew that and
that's why even more that bottle was threatening because she knew
he would do something like this. Because he had hurt her before.
The bottle was placed there to scare her." (State Closing: Tr.
719.) The judge gave the jury a limiting instruction that it
could not be considered as propensity evidence but solely as to
Gillespie's intent in placing the bottle at Brooks' door.
(Charge: Tr. 746-47.) During their four-year tumultuous relationship, Gillespie lived
with Brooks and her two sons, ages nine and sixteen, in Brooks'
426 West 27th Street apartment from 1995 to 1996. (Brooks: Tr.
543, 546, 578.) Brooks asked Gillespie to move out due to the
negative impact of their frequent arguments on her children, but
she continued to date Gillespie despite their ongoing fights.
(Brooks: Tr. 546-47, 551.)
Brooks testified that twice during their fights, Gillespie
threatened to kill or injure her by vowing to "fire bomb," or
"burn [her] out" of, Brooks' apartment. (Brooks: Tr. 552, 588,
617.) Brooks also testified that Gillespie resorted to violence
during arguments, such as in July 1996, when Gillespie shoved
Brooks into a wall, leaving her with a broken shoulder, stitches
for a four-inch wound on her head, and the inability to work for
weeks. (Brooks: Tr. 548-50.) Brooks declined to press charges
against Gillespie for that incident, and she continued dating
Gillespie because he promised he would "never do anything like
that again and that he didn't mean it." (Brooks: Tr. 551.)
Defense counsel did not object to Brooks' testimony regarding
Gillespie's past violence and threats. (Tr. 542-53.) Indeed,
defense counsel followed up on the incident during cross
examination, to show that despite this history, Brooks continued
to date Gillespie and even invited him over for Thanksgiving.
(Brooks: Tr. 606-09.)
In July 1998, Brooks finally ended her relationship with
Gillespie because she could no longer endure the constant
fighting, did not want to continue subjecting her children to it,
and felt they should "just be friends." (Brooks: Tr. 547-48,
553-54, 579.) When Gillespie called Brooks a week before
Thanksgiving in 1998 and informed her that he had nowhere to go
for Thanksgiving, she invited him to Thanksgiving dinner at her
apartment. (Brooks: Tr. 554, 580-81.) Thanksgiving Day, November 26, 1998
On Thanksgiving Day, November 26, 1998, Gillespie came to
Brooks' apartment, but around four o'clock in the afternoon they
started arguing when Gillespie made inappropriate remarks in
front of Brooks' son Lavert. (Brooks: Tr. 556.) Amidst the
yelling, Brooks told Gillespie "this is not working I'm going to
make you a plate [of food] and why don't you just leave."
(Brooks: Tr. 556, 584.) Gillespie was slow to leave so Brooks
told him to "please speed it up" and to "please stay away from
me." (Brooks: Tr. 556, 584.) Before walking out the door,
Gillespie told Brooks, "I'm going to fire bomb you." (Brooks: Tr.
557, 587, 612-13.) Brooks told him to "go now." (Brooks: Tr.
557.) About five to ten minutes after Gillespie left, Brooks and
her children heard a loud bang on the door and discovered that
Gillespie had thrown the plate of food she had given him all over
the door. (Brooks: Tr. 557, 586.) Brooks said she then "g[o]t in
a huge argument" with Gillespie, who was standing down the
hallway, and he "told me I better watch my back and he said my
mother should also watch her back." (Brooks: Tr. 557-58.) Brooks'
sixteen year old son became very upset, and Brooks continued to
tell Gillespie "to leave" as she yelled to her younger son,
Lavert, to call 911. (Brooks: Tr. 558, 590, 614.) Brooks finally
saw Gillespie going down the stairs to leave as she was cleaning
up the food outside her door with her son. (Brooks: Tr. 559,
Police Officers Bibbons and Correa responded to the 4:15 p.m.
911 call and arrived at Brooks' apartment a few minutes later.
(Bibbons: Tr. 434-36; Correa: Tr. 520-21; Brooks: Tr. 595.) The
officers observed the splattered food, and found Brooks to be
"upset." (Bibbons: Tr. 436, 471-72; Correa: Tr. 521-22.) Brooks
told the police that Gillespie had threatened to kill her, her
mother and her son. (Bibbons: Tr. 504-05.) Officers Bibbons and
Correa obtained a description and picture of Gillespie from Brooks, and at approximately 4:40 p.m.,
they performed a vertical search of the building, checking each
of the twelve floors and the two stairwells. (Bibbons: Tr.
437-42, 485-91; Correa: Tr. 522-25.) The officers prepared a a
report and left the building without having found Gillespie.
(Bibbons: Tr. 443, 473-74, 491; Correa: Tr. 525.)*fn1
Officer Bibbons testified that the building is locked, is not
open to the public, and has signs warning "no trespassing and
violat[o]rs would be prosecuted." (Bibbons: Tr. 444-45.)
Brooks testified that after the police left, she and her
children were very upset, and they were too scared to even take a
plate of food to her disabled and ailing mother who lived four
blocks away. (Brooks: Tr. 561.) At around 6:45 p.m., Brooks and
her children heard a knock at her door, and as Brooks looked
through the peep hole, she saw Gillespie "backing away from the
door with something shiny in his hand which [Brooks] thought
was to be a lighter." (Brooks: Tr. 561-62, 593, 598.) Brooks
smelled smoke and fire, but was afraid to open the door until she
heard her neighbors in the hallway. (Brooks: Tr. 562-63, 598-99.)
When she opened the door, she saw "what [she] thought to be a
[M]olotov cocktail," but upon closer inspection, she realized it
was empty. (Brooks: Tr. 563, 569, 601-02.) Immediately, she
closed and locked the door and called the police. (Brooks: Tr.
564.) Brooks said that even though it was empty, "it didn't make
me feel a whole lot better because I thought he could still do
this at any time . . . and I was afraid . . . for my life." (Brooks: Tr. 569.) She added that she felt it was "like more than
a warning that he's going to try to kill [her] and it's not just
[her], it's [her] children and to [her] nothing that any kind of
argument doesn't warrant that." (Brooks: Tr. 618-19.)
Officers Bibbons and Correa returned at around 7:00 p.m. and
"intersected" Gillespie standing outside behind Brooks' building.
(Bibbons: Tr. 445-49, 492-94; Correa: Tr. 526-27.) After asking
Gillespie to identify himself, the officers handcuffed him;
Officer Correa remained with Gillespie while Officer Bibbons went
upstairs to Brooks' apartment where, directly in front of Brooks'
door, he saw the bottle with "a little smoke coming from the top
of it." (Bibbons: Tr. 451-54; 494-95; Correa: Tr. 527-28.)
Officer Bibbons testified that "the first thing I did think I
thought it was a Molotov cocktail." (Bibbons: Tr. 453-54, 511.)
When Officer Bibbons noticed "the paper . . . wasn't actually
burning," he picked up the bottle and discovered that "it was a
22 ounce [B]allentine beer bottle it had a brown paper bag
stuffed in it and it had a little bit of liquid on the bottom."
(Bibbons: Tr. 454, 458, 512.) The liquid did not smell like
gasoline. (Bibbons: Tr. 497-98.) Officer Correa testified that
when Officer Bibbons later showed him the bottle, "it looked like
a Molotov cocktail." (Correa: Tr. 528.)
At trial, both sides made clear that the "Molotov cocktail" was
a fake that could not explode because the liquid in it was not
ignitable. The prosecutor, in his opening statement, said that it
was simply "a bottle with a piece of paper in it. It wasn't a
real Molotov cocktail. It couldn't have exploded." (State
Opening: Tr. 403.) The prosecutor noted that the evidence about
the bottle was to show the jury that the bottle "looked
frightening. Looked threatening. Looked like a Molotov cocktail."
(State Opening: Tr. 404.) A photograph of the bottle taken at the
precinct and the bottle itself were introduced into evidence. (Tr. 457-60; see also,
Correa: Tr. 532-33.) Brooks testified that the beer bottle did
not come from her apartment, because she kept no alcoholic
beverages around, and she did not see Gillespie drink beer or
bring beer to her apartment that day. (Brooks: Tr. 565-66.)
Due to the incident, Brooks was "very upset" and "much more
visibly shaken th[a]n [when the officers were] there the first
time." (Bibbons: Tr. 455.) Brooks told Officer Bibbons about
smelling the smoke and seeing Gillespie, and that she was "really
frightened . . . scared." (Bibbons: Tr. 513-15.) The prosecutor
argued that Gillespie was angry with and intended to scare
Brooks, and knocked on her door so that she would know what he
did. (State Closing: Tr. 698, 701-02, 718.) "He knocked and he
lit the paper so she could smell the smoke . . . Imagine smelling
smoke after the defendant had told you I'm going to burn you
out." (State Closing: Tr. 718-20.) The prosecutor explained that
the jury should consider Gillespie's "threats and look at the
context of their relationship" to understand that Gillespie
willfully and purposely intended to put Brooks in fear for her
life. (State Closing: Tr. 718-19.)
After Gillespie was arrested, he called Brooks six to ten times
from jail, apologized for "Thanksgiving Day," said that "he
didn't mean it," and tried to convince Brooks not to appear in
court so that he would not have to be in jail. (Brooks: Tr.
570-73, 618.) Verdict and Sentence
The jury found Gillespie guilty of second degree burglary.
(Verdict: Tr. 783-86.)*fn2 On September 27, 1999 Gillespie
was sentenced to fifteen years imprisonment as a predicate felon.
(9/27/99 Sentencing Transcript at 6-7, 19-21.)
Gillespie's Direct Appeal
Gillespie's appointed appellate counsel filed a brief raising
two issues: that the annotated special verdict sheet was improper
and that the trial judge had penalized Gillespie for exercising
his right to trial by significantly increasing his sentence over
the offered plea sentence of five years. (Ex. A: Gillespie 1st
Dep't Br. at 8-12, 13-15.)*fn3
Gillespie filed a supplemental pro se brief to the First
Department, claiming that:
(1) the trial judge erred in submitting jury
instructions on menacing when the menacing claim was withdrawn, and that the evidence of "burglary" was
insufficient (Ex. B: Gillespie Supp. Pro Se 1st Dep't
Br. at 6-7); and (2) he was deprived of a fair trial
and due process by cumulative trial errors including:
(i) admission of prior bad acts evidence, (ii)
introduction of the "Molotov cocktail" to prove
intent to menace when the police lab report was
negative, (iii) refusing to exclude a juror whose
husband had been killed in a terrorist bombing, (iv)
biased remarks by the trial judge, (v) submitting the
unlawfully remained theory to the jury, and (vi)
insufficient evidence of burglary (Ex. B: Gillespie
Supp. Pro Se 1st Dep't Br. at 7-11).
The First Department affirmed Gillespie's conviction. People
v. Gillespie, 287A.D.2d 288, 731 N.Y.S.2d 21
(1st Dep't 2001).
The bulk of its opinion dealt with the annotated verdict sheet,
which the First Department found proper and, in any event, not
prejudicial to Gillespie. Id. at 288-89, 731 N.Y.S.2d at 23. The
First Department also held:
We have reviewed defendant's other points, including
those raised pro se, and find them to be without
Id. at 289-90, 731 N.Y.S.2d at 23.
Gillespie's appellate counsel sought leave to appeal to the New
York Court of Appeals, indicating two issues presented: (1) the
annotated verdict sheet and (2) the sentencing issue. (Ex. E:
11/13/01 Letter to N.Y. Ct. App.) Appellate counsel submitted a
three page single-spaced follow-up letter, dealing with the
annotated verdict sheet issue. (Ex. E: 12/10/01 Letter to N.Y.
Ct. App.) That letter ended by stating:
The need for guidance from this Court is clear.
Appellant thus respectfully requests that this leave
application be granted. The relevant minutes are
enclosed, as is the supplemental pro se brief
appellant filed in the First Department. . . . (Ex. E: 12/10/01 Letter to N.Y. Ct. App. at 3.) The
prosecutor's response letter addressed only the
annotated verdict sheet issue. (Ex. F: State 12/21/01
Letter to N.Y. Ct. App.)
On March 15, 2002, the New York Court of Appeals denied leave
to appeal. People v. Gillespie, 97 N.Y.2d 754, 742 N.Y.S.2d 614
Gillespie's C.P.L. § 440 Motion
Gillespie filed a pro se C.P.L. § 440.10 motion to vacate the
judgment on November 8, 2001 claiming, in relevant part: (1) a
Brady violation for failure to provide the police lab report;
(2) prosecutorial misconduct in submitting the bottle as evidence
to mislead the grand jury and petit jury and improper
prosecutorial instructions to the grand jury; and (3)
insufficient evidence ...