The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
On December 5, 1995, in the New York State Supreme Court, New
York County, petitioner Darryl Holmes was convicted following a
jury trial of one count of Murder in the Second Degree (N.Y.
Penal Law § 125.25), one count of Criminal Possession of a Weapon
in the Second Degree (N.Y. Penal Law § 265.03), and one count of
Criminal Possession of a Weapon in the Third Degree (N.Y. Penal
Law § 265.02). On January 10, 1996, Holmes was sentenced to
concurrent prison terms of 25 years to life, 7-1/2 to 15 years,
and 3-1/2 to 7 years respectively.
Holmes, who is currently incarcerated at the Green Haven
Correctional Facility in Stormville, New York, has petitioned
this Court under 28 U.S.C. § 2254 for a writ of habeas corpus.
For the reasons stated below, his petition should be denied.
Holmes's conviction arose from the murder of Nathaniel Brown
(referred to herein either as "Brown" or by his full name) at
1806 Amsterdam Avenue in Manhattan on October 14, 1994. Holmes
was indicted on October 25, 1994. A. Pre-Trial Proceedings
Prior to trial, a hearing was held pursuant to United States
v. Wade, 388 U.S. 218 (1967) in response to Holmes's motion to
suppress the identification testimony of witnesses who had
identified him at a lineup.*fn1 At the hearing, Detective
Paul Mueller of the New York City Police Department ("NYPD")
testified that, shortly after 9:00 p.m. on the night of October
14, 1994, he responded to a shooting at 1806 Amsterdam Avenue.
(Mueller: H. 5-6).*fn2 Upon arriving at the scene, Detective
Mueller saw a black male, later identified as Nathaniel Brown,
lying in the lobby of the building after having been shot.
(Mueller: H. 6). Detective Mueller received a description of the
assailant as being a 5'9" tall "male black, . . . light skinned,
black hat, black pants, Desert Storm army jacket, muscular
build." (Mueller: H. 87). Detective Mueller spoke with two
eyewitnesses, Jose Sandoval and Renee Flowers, both of whom
described the perpetrator as a "light-skinned . . . stocky" black
male in his early-to-mid twenties, weighing approximately 165
pounds, and standing approximately 5'6" tall. (Mueller: H. 7-8).
Sandoval and Flowers also described the assailant as "wearing a
green army jacket" and a "black knit hat." (Mueller: H. 8).
During the course of the investigation, other detectives
interviewed a man by the name of Kevin Richardson. (Mueller: H.
8). Based upon Richardson's statement, Detective Mueller learned that, on the day that Brown was shot, Richardson had
accompanied Brown to Staten Island, where Brown had an argument
with his stepdaughter, Rhonda Brown. (Mueller: H. 9). After the
dispute, Richardson drove Nathaniel Brown to 1806 Amsterdam
Avenue. (Mueller: H. 9-10). Detective Mueller also learned that,
at some point that same evening, a black male who fit the
description of the shooter was at Richardson's residence, located
at 14 West 102nd Street in Manhattan, looking for both Richardson
and Nathaniel Brown. (See Mueller: H. 10). Mueller subsequently
learned that Holmes was Rhonda Brown's boyfriend. (Mueller: H.
Holmes was taken into custody by Detective Brian Speer of the
NYPD on October 15, 1994. (Mueller: H. 13; Speer: H. 122-23).
Detective Speer said that he knew Holmes by his nickname,
"Light," which was given to him because of his light complexion.
(Speer: H. 120). Detective Speer had seen Holmes on "at least"
forty occasions and thought that Holmes's physical
characteristics matched the description of the shooter. (Speer:
H. 121). Detective Speer also had seen Holmes wearing an army
jacket. (Speer: H. 121-22). Holmes testified that he was 5'11"
tall and that, at the time he was taken into custody, he weighed
approximately 230 pounds. (Holmes: H. 159).
That same evening, Detective Mueller prepared to place Holmes
in a lineup. (See Mueller: H. 33-34). The lineup consisted of
six individuals, including Holmes. (See Mueller: H. 36). Once
the lineup fillers arrived, the fillers and Holmes were placed in
the same interview room at the precinct house. (Mueller: H. 34).
Of the six participants in the lineup, two of the individuals,
including Holmes, had a lighter skin tone than the other four
lineup participants. (Mueller: H. 74). Although Mueller noticed
the differences in complexion between the lineup participants, he
did not make any attempt to find other fillers who had a skin
tone that more closely resembled Holmes's. (Mueller: H. 75). Holmes selected
position number two in the lineup. (Mueller: H. 36). A photograph
of the lineup was admitted into evidence at the hearing. (H. 35);
see Lineup Photograph (annexed as Ex. D to Petition) ("Lineup
Photograph"). The lineup photograph shows that the other
light-skinned lineup participant was seated in position number
five in the lineup. See Lineup Photograph.
Howard Sails was the first individual to view the lineup.
(Mueller: H. 37). Sails worked as a security guard at 14 West
102nd Street, the building in which Richardson lived. (See
Mueller: H. 10, 37). Sails informed police that he had seen an
individual enter the premises at 14 West 102nd Street on the
evening of October 14, 1994 looking for Richardson and Brown.
(See Mueller: H. 10-11). Prior to viewing the lineup, Sails was
shown a videotape taken from a camera in the building that
depicted the person Sails had seen enter the premises. (See
Mueller: H. 80). After viewing the lineup, Sails recognized
Holmes and stated that he was "eighty percent sure" that Holmes
was the individual he saw enter the building. (See Mueller: H.
37). In an interview conducted after the identification, Sails
informed Detective Mueller that the person whom he saw enter the
building was an individual whom he had never seen before and had
not seen since. (Mueller: H. 81-82).
The hearing court granted defense counsel's motion to introduce
the grand jury testimony of the witnesses who viewed the lineup.
(See H. 158-59). When Sails was asked during his grand jury
testimony what he could say about the individual he selected at
the lineup, he responded: "Well, the guy from number two, the guy
who [was] holding number two, he was light skinned, he was a
little stocky." Sails' Grand Jury Testimony (reproduced as Ex. E
to Petition) ("Sails' Grand Jury Testimony"), at 42. When the
prosecutor pressed Sails to state where he recognized number two from and where he had last seen
him, Sails responded that number two "could have been the guy" he
saw while working at 14 West 102nd Street. See id. In
response to a question from the prosecutor concerning the level
of certainty in his identification, Sails said it "[c]ould have
been like 70 to 80 percent" and then added that he "wasn't quite
sure." Id.; see also H. 212 (defense counsel reading these
portions of Sails' grand jury testimony into the record).
The next person to view the lineup was Jose Sandoval. (Mueller:
H. 38). Sandoval was an employee of the liquor store located next
door to 1806 Amsterdam Avenue. (See Mueller: H. 46). Upon
viewing the lineup, Sandoval "indicated . . . that he was either
choosing number 2 or number 5" as the person he saw in the
vicinity of 1806 Amsterdam Avenue on the night in question.
(See Mueller: H. 39). At Sandoval's request, the lineup
participants stood up. (Mueller: H. 39). Sandoval chose Holmes as
the person he had seen on the night in question. (Mueller: H.
39). In his grand jury testimony, however, Sandoval testified
that, upon his request, only Holmes and the individual seated in
position number five stood up. See Sandoval's Grand Jury
Testimony (reproduced as Ex. E to Petition) ("Sandoval's Grand
Jury Testimony"), at 104. At that time, Sandoval told the
detective that Holmes was "most like" the man he saw in the
vicinity of 1806 Amsterdam Avenue "because of [his] color and
[his] weight, his height, and the way he stood up." See id.
at 105. Sandoval testified before the grand jury that Holmes's
features were "more similar" to the features of Brown's attacker
than the other participants in the lineup. See id. at 103-04;
accord H. 213. When asked if he was able to tell the detective
that he was "sure" that Holmes was the man he observed, Sandoval
responded by stating that Holmes "was the person who had the most features like him." See Sandoval's
Grand Jury Testimony at 105; accord H. 213-14.
The next person to view the lineup was Alejandro DeJesus (a/k/a
Niko Dellacruz), who was present at the scene at the time of the
incident in question. (Mueller: H. 40, 48-49).*fn3 Upon
viewing the lineup, DeJesus did not identify anyone as the
perpetrator. (Mueller: H. 40).
The final person to view the lineup was Renee Flowers, who was
also an eyewitness. (Mueller: H. 7, 41). Upon viewing the lineup,
Flowers indicated that she recognized Holmes. (See Mueller: H.
41). Before the grand jury, Flowers testified that she selected
Holmes at the lineup because he had "the same features" as the
man she saw at 1806 Amsterdam Avenue on the night that Brown was
shot. See Flowers' Grand Jury Testimony (reproduced as Ex. E to
Petition) ("Flowers' Grand Jury Testimony"), at 17. During the
course of her grand jury testimony, however in a portion that
was admitted at the Wade hearing (H. 158-59) and read into the
record at trial Flowers stated that the reason she had picked
Holmes at the lineup was "because of his complexion" and because
he was "light skinned and his features looked the same" as the
perpetrator. (Tr. 890-91). Flowers then further described what
led her to identify Holmes as the perpetrator at the lineup:
Q. Can you tell us what your level of certainty is or
was on Saturday, October 15, 1994, when you selected
. . . number two in the lineup that you saw at the
A. All right. I seen that he was light skinned and
the, first of all, he was, you know, the lightest one
that I've seen there and I felt that, you know, this
was the individual. . . .
Q. Was the man that you selected in the lineup the
man holding the number two, was he similar in
appearance to the man in the hat which you had seen . . .
on October 14, 1994?
A. Yes, he appeared to be the gentleman. Q. And what is can you tell us about your level of
certainty regarding your identification, can you talk
about that at all?
A. I only can say certainly about the clothes and
that's what I can say in his complexion, and like I
said, all I saw was the side of him.
Flowers' Grand Jury Testimony at 52-53.
The trial court concluded that there was no police
suggestiveness in the lineup and thus rejected Holmes's motion to
suppress the identification testimony. (H. 221, 247). Although
acknowledging that the witnesses' descriptions of the perpetrator
focused upon his light complexion, the court stated that case law
did not require that fillers in a lineup have a complexion
identical to the subject of the lineup. (See H. 245-46). In
reaching its decision, the court also emphasized the fact that
the witnesses had not made definitive identifications. (H. 246).
Specifically, the court commented that if the police were
attempting to be suggestive in this instance, they "did a
miserable job of it because they have witnesses who are
uncertain" in their identification of Holmes as Brown's attacker.
B. The Evidence Presented at Trial
On the afternoon of October 14, 1994, Kevin Richardson drove
Nathaniel Brown to see Karen Brown, his estranged wife, at her
home in Staten Island. (See Richardson: Tr. 478-80, 482,
484-86; K. Brown: Tr. 261-63).*fn4 Shortly after arriving at
the house, Nathaniel Brown got into an argument with Rhonda
Brown, his stepdaughter, during the course of which Brown hit or
grabbed Rhonda. (See K. Brown: Tr. 263-65; Richardson: Tr.
480-81, 488-89). As Rhonda attempted to exit the apartment, Brown
grabbed her by the arm, and, subsequently, the two slid down a nearby stairway. (Richardson: Tr. 489). After reaching the
bottom of the stairway, Rhonda yelled at Brown, "`you're dead
mother fucker. You're dead.'" (Richardson: Tr. 489). Following
the altercation, Nathaniel Brown and Richardson returned to
Manhattan, and Karen Brown called the police to report the
argument. (See Richardson: Tr. 489-90; K. Brown: Tr. 1026-28).
Upon returning to Manhattan, Richardson dropped Nathaniel Brown
off at 1806 Amsterdam Avenue at approximately 8:40 or 8:45 p.m.
(Richardson: Tr. 490).
Following the incident, Karen heard Rhonda speaking on the
telephone. (K. Brown: Tr. 268). Because Rhonda was crying and
shaking, Karen took the telephone from her. (K. Brown: Tr. 268).
At the other end of the line was Holmes, Rhonda's boyfriend, who
was informed by Karen that Rhonda had had an argument with
Nathaniel Brown. (See K. Brown: Tr. 268-70; Lamar: Tr. 298).
Holmes asked Karen where Nathaniel Brown was and she informed him
that he was either at Richardson's apartment located on 102nd
Street or at his own apartment located at 1806 Amsterdam Avenue.
(K. Brown: Tr. 270).
At approximately 8:30 p.m. that evening, Sails, a security
guard at Richardson's apartment complex, was approached by a man
outside of the security booth where he was working. (Sails: Tr.
691-92, 696-98, 705). Sails described the man as a "light
skinned" black male in his twenties, with a "stocky" build
between 5'9" and 6'0" tall. (Sails: Tr. 699-700). The man was
wearing a black knit hat which was covering his eyebrows and a
"greenish gray" jacket with the collar turned up. (Sails: Tr.
700-01). Although the area around the security booth was
well-lit, Sails testified that it was difficult to see the man's
face because the hat he was wearing "was pulled low over his
eyebrows" and because his collar was turned up. (Sails: Tr. 720,
722). As the man approached, he asked Sails about an address
located at "102 Central Park and Columbus." (Sails: Tr. 701). After Sails informed him there was
no such address, the man made a call on his cell phone. (Sails:
Tr. 701-04). Phone records showed that a call was placed at about
this time from this cell phone to Karen Brown. See Resp. Mem.
at 12 (citing telephone records admitted at trial as Exhibits 19A
and 19B). Karen Brown also testified that Holmes called her that
evening, asking about Richardson's name and confirming his
apartment number thus suggesting to her that he was actually at
the 102nd Street address when he called. (K. Brown: Tr. 273-74).
After placing the phone call, the man requested that Sails ring
the buzzer to Richardson's apartment. (Sails: Tr. 704-05). After
buzzing Richardson's apartment, Richardson's son told Sails to
send the man up and Sails did so after the man signed his name
"S. Jenkins" in a visitors logbook. (Sails: Tr. 705, 708, 723; R.
Richardson: Tr. 1279-80). The parties stipulated that the logbook
signature matched a sample of Holmes's handwriting introduced at
trial. (See Tr. 1433). In addition, the parties stipulated that
Holmes had used the name "Darvin Jenkins" as an alias in the
past. (Tr. 1433).
Richardson's son, who was ten years old at the time he
testified, opened the door to the apartment and the visitor asked
if he knew of Nathaniel Brown's whereabouts. (See R.
Richardson: 1276, 1281-82). Richardson's son informed him that he
did not know where Brown or his father were at the time. (R.
Richardson: Tr. 1281-82). Sails never saw the man leave the
building. (Sails: Tr. 753).
Later that same evening, Sails, along with several detectives,
watched a videotape from a surveillance camera that videotaped
anyone entering and exiting the building. (Sails: Tr. 709-11;
Smoot: Tr. 1090). The videotape was played in open court during
the course of the trial. (Sails: Tr. 720-22). Sails could not recall if he reviewed the videotape
with detectives before or after describing the individual who
approached him at the security booth to police. (Sails: Tr. 749).
In Rhonda Brown's grand jury testimony, which was admitted into
evidence at trial, she testified that she recognized Holmes upon
viewing the videotape. (Tr. 1448-49).
Holmes called Karen Brown a second time that evening to ask the
other address she had given him and to confirm that it was 1806
Amsterdam Avenue, Apartment 4B3. (K. Brown: Tr. 275). At this
time, Karen Brown again provided Holmes with the address. (K.
Brown: Tr. 275).
At approximately 9:00 p.m. that same evening, Nathaniel Brown
entered the liquor store adjacent to 1806 Amsterdam Avenue and
began a discussion with Jose Sandoval, an employee at the store.
(Sandoval: Tr. 396-98). Brown and Sandoval continued their
conversation outside the store, at which time they were joined by
Renee Flowers, who also lived at 1806 Amsterdam Avenue.
(Sandoval: Tr. 398, 402; Flowers: Tr. 795, 800-02). During this
encounter, Sandoval saw a man standing on a nearby sidewalk.
(Sandoval: Tr. 398-99). Sandoval described the man as being
approximately 5'10" tall, as having a lighter skin tone than
himself and a "very strong" build. (Sandoval: Tr. 399). Sandoval
testified that the man was wearing a "dark" winter hat covering
the lower part of his forehead, including his eyebrows, and a
"brown light jacket" that appeared to be an "army jacket."
(Sandoval: Tr. 400-01). When Sandoval first saw the man, the man
was looking at the door to 1806 Amsterdam Avenue with his hands
in his pockets. (Sandoval: Tr. 401-02, 404). The conversation
outside the store lasted "about a minute" and Sandoval reentered
the store. (Sandoval: Tr. 404-05). Flowers and Brown subsequently headed towards the door of 1806
Amsterdam Avenue, where Brown lived on the fourth floor with his
girlfriend. (Flowers: Tr. 800, 802). Brown rang the outside
intercom to his girlfriend's apartment to let her know that he
was coming upstairs. (Flowers: Tr. 802-03). The entrance to 1806
Amsterdam Avenue had two sets of glass doors, one after the
other, and each door was locked. (Flowers: Tr. 797-98). Brown
unlocked the first door with his key, and he and Flowers entered
the building. (Flowers: Tr. 803). At that point a man began to
follow them into the building. (Flowers: Tr. 803-04). Flowers
described the man as a "light skinned" black male, with a "broad"
build, wearing a black ski hat and a "green army jacket."
(Flowers: Tr. 804-05). Because the man's black hat came down to
his eyebrows, and because the collar to the man's jacket was
pulled up to his ears, Flowers could only see the man's face from
his eyebrows to his chin. (Flowers: Tr. 805-06). Flowers
testified that the man "always had his head down" and that the
lighting in the vestibule was "dim" because the only lighting was
provided by the outside street lights. (Flowers: Tr. 808, 810).
Flowers and Brown asked the man if they "could . . . help him."
(Flowers: Tr. 809). The man informed them that he was there to
visit a friend, "Reggie." (Flowers: Tr. 809). Flowers informed
the man that "he had the wrong building [since] there was no
Reggie that lived there." (Flowers: Tr. 809). In response, the
man stated that he knew "Reggie" lived in the building because he
had visited him "earlier." (Flowers: Tr. 809-10). At that point,
Flowers "got kind of nervous" and turned away from the man.
(Flowers: Tr. 810). Brown informed the man that he would not
permit him to enter the building. (Flowers: Tr. 810-11). Brown
then opened the inner vestibule door and allowed Flowers to enter
the building. (Flowers: Tr. 811). The man stuck his foot in the
doorway and Brown again informed him that he would not permit him
to enter the building. (Flowers: Tr. 812). Brown told the man that he should
use the intercom system and the man made a motion as if he was
going to do so. (Flowers: Tr. 812). The man, however, reached
into his jacket and pulled out what "looked like the . . . handle
of a gun." (Flowers: Tr. 812). As Flowers turned to run down the
hallway, she heard two gun shots. (Flowers: Tr. 812-13).
Following the shooting, Flowers went to tell Brown's girlfriend
that he had been shot. (See Flowers: Tr. 813). When police
arrived, Brown was bleeding and laying face up in the lobby of
the building underneath the mailboxes. (Mueller: Tr. 1143-44).
Brown was taken to St. Luke's Hospital and he subsequently died.
(See Mueller: Tr. 1145; Smiddy: Tr. 1295).
Throughout the encounter, Flowers did not get a "complete look"
at the shooter's face. (Flowers: Tr. 818; accord Flowers: Tr.
825, 831, 833, 848, 871-72). Flowers testified that the man's
clothing, specifically, the fact that "his hat [was] pulled down
and his coat pulled up," prevented her from observing the man's
face. (Flowers: Tr. 818). In fact, Flowers indicated that she did
not look at the man who eventually shot Brown because she was
"scared." (Flowers: Tr. 872).
Sandoval and DeJesus, another liquor store employee, heard two
gun shots coming from the building next door. (Sandoval: Tr.
411-12; DeJesus: Tr. 899, 902-03). As Sandoval went to the door
of the liquor store, he saw the man in the "army jacket" that he
had previously seen standing on the sidewalk walk past him with
his hands in his pockets and his head facing down. (Sandoval: Tr.
412-13). Sandoval indicated that he was unable "to get a good
look" at the man's face "because [the man] always had his head
down." (Sandoval: Tr. 416). Sandoval, however, testified that it
was "the color of [the man's] skin" that "stayed in [his] mind."
(Sandoval: Tr. 450-51). Although DeJesus did not see the man's
face, he stated that the man was approximately 5'8" or 5'10" tall. (DeJesus: Tr. 907, 914).
DeJesus testified that the assailant wore a black winter hat and
an "olive green" or "green" military jacket with the collar "[a]
little lifted up." (DeJesus: Tr. 903-05).
Following the shooting, Sandoval, Richardson, Rhonda Brown,
Flowers, and Sails gave statements to the police. (Sandoval: Tr.
462; Richardson: Tr. 496; R. Brown: Tr. 599; Flowers: Tr. 823-24;
Sails: Tr. 709). Holmes was taken into custody at about 4:00 or
4:30 p.m. on October 15, 1994. (See Speer: Tr. 515; Mueller:
Tr. 1149-50). At the time, Holmes had several toothpicks, a black
knit hat, and a cellular phone in his possession. (Mueller: Tr.
1150, 1157-59, 1242, 1261-62). In fact, Holmes was wearing the
black knit hat when he was taken into custody. (Mueller: Tr.
1242; Speer: Tr. 515).*fn5 The videotape retrieved from the
14 West 102nd Street security booth showed that the individual
seeking to gain entrance to Richardson's apartment was holding a
cellular phone and had a toothpick in his mouth. (See Mueller:
Tr. 1149, 1262). Detective Mueller also testified that the man he
"viewed in the video was wearing a green army jacket and a black
knit hat" and that this clothing "correspond[ed]" with the
eyewitnesses' descriptions of the perpetrator's clothing.
(Mueller: Tr. 1262). At the time of his arrest, Holmes informed
Detective Mueller that he was 5'8" tall and weighed 185 pounds.
(Mueller: Tr. 1262).
The police conducted a lineup that included Holmes later that
evening. (Mueller: Tr. 1151-52). Holmes chose to sit in position
number two in the lineup. (Mueller: Tr. 1154-55). At trial,
Sails, Sandoval, DeJesus, and Flowers all testified regarding
what occurred at the lineup. (See, e.g., Sails: Tr. 716-19;
Sandoval: Tr. 417-19, 452-54; DeJesus: Tr. 912-13, 917-25; Flowers: Tr. 816-19, 821, 856-59, 861-64, 890-92). None of the
witnesses, however, made an in-court identification of Holmes.
Resp. Mem. at 27.
After being shown a picture of the lineup, Sails testified that
"the man holding number 2 could have been the person" that
approached him at the security booth on October 14, 1994. (See
Sails: Tr. 717-18). At the time of the lineup, Sails was "[a]bout
seventy to eighty percent" certain that Holmes was the individual
he observed from his security booth. (Sails: Tr. 718).
Sandoval testified that the two individuals that looked most
similar to the perpetrator were Holmes and the individual seated
in position number five "because of the color of their skin."
(Sandoval: Tr. 417). Sandoval testified that Holmes and the
individual seated in position number five were the only lineup
participants who came close to his description of the
perpetrator. (Sandoval: Tr. 452). As a result, Sandoval directed
his attention solely towards those two individuals. (Sandoval:
Tr. 452). Sandoval requested that Holmes and the individual
seated in position number five stand up and take a step forward,
and he was then able to observe their build and height.
(Sandoval: Tr. 418). Based upon his observation, Sandoval
concluded that Holmes had characteristics "similar" to "the man
in the army jacket" that he saw standing on the ...