The opinion of the court was delivered by: PAUL CROTTY, District Judge
Petitioner Jose Carrion petitions this court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges
his March 15, 2001 conviction in New York State Supreme Court,
Bronx County, for the crimes of Murder in the second degree and
Assault in the first degree. Petitioner is currently serving
concurrent sentences of twenty-five (25) years to life for the
murder conviction and twenty (20) years for the assault
Petitioner bases his petition on the sole claim that two of the
trial court's evidentiary rulings were so fundamentally unfair
that they denied him due process under the Fourteenth
Amendment.*fn1 Specifically, petitioner complains that the
trial judge erred in ruling that defense counsel's questioning of the prosecution's sole eyewitness about a prior
misidentification of another robber in a photo array "opened the
door" to otherwise inadmissible testimony by the same eyewitness
that he had previously identified petitioner as one of the
robbers in a separate mugbook photograph identification.
Petitioner also complains that the trial judge erred in
permitting petitioner's mug shot photograph to be introduced into
evidence. Both rulings were so fundamentally unfair, he argues,
and so influenced the jury's verdict, that they violated
petitioner's Fourteenth Amendment due process right to a fair
jury trial. The Court does not agree and denies the petition for
a writ of habeas corpus.
Juan Mercedes (a.k.a. "Alberto Nunez") and his employee Juan
Ventura, both drug dealers, used apartment 3C at 2675 Morris
Avenue in the Bronx to sell drugs. (Trial Tr. ("T.") 94.) On the
night of April 20, 1995, while Mercedes and Ventura were in
apartment 3C with a customer named Eddie, three intruders forced
their way into the apartment and attempted to rob the men of
drugs and money.*fn2 (T. 107-08.) One of the intruders was
armed with a .38 caliber weapon, while another intruder was armed
with a .25 caliber weapon. (T. 109.) Eddie was taken by one of
the intruders into the bedroom, where he was beaten. (T. 108,
109.) Mr. Mercedes told the intruders that he did not have any
drugs or money in the apartment and tried to flee, but once he
got to the hallway the intruder with the .38 caliber weapon
started to struggle with Mr. Mercedes. (T. 110-13.) When the
intruder could not get Mr. Mercedes back into the apartment, he
shot him in the head and chest at close range. (T. 51, 83, 274, 277, 326.) Before the three robbers
fled the building, the intruder with the .38 caliber weapon
announced, "I am going to kill you now," and shot Mr. Ventura in
the buttocks. (T. 116, 117, 319.) Mr. Ventura followed the
intruders out of the building and watched them get away, and then
told a passerby to call the police because he and his friend had
been shot. (T. 120-21.) Emergency medical technicians took Mr.
Ventura to Jacobi Hospital to be treated for his gunshot wound.
Officers responded to the scene shortly before midnight. (T.
395) In the early morning hours of April 21, 1995, Detective
Ciuffi of the New York Police Department spoke with Mr. Ventura
at Jacobi Hospital. (Wade Hearing Tr. 3, Jan. 10, 2001.) Mr.
Ventura told the detective that he and his friend had been shot,
and that there had been one Hispanic and two black
assailants.*fn3 (T. 346, 350.) He identified the Hispanic
assailant as the shooter and described the shooter as 20-21 years
of age, 5'10" tall, with a goatee, pimples or a mole, and light
freckles, and wearing a black "Boss" jacket, black slacks, and a
white bandana with black dots.*fn4 (T. 346-47.) To hide his
involvement with drug sales at apartment 3C, Mr. Ventura falsely
represented to the detective that he encountered the shooter in
the fifth floor stairwell, the shooter shouted "Move it, move
it," and then shot him. (T. 345, 352.)
On April 23, 1995, Detective Ciuffi returned to the hospital to
question Mr. Ventura further. Mr. Ventura, who was "very belligerent," viewed a photo array of
potential suspects and told the detective that one of the men
"looked like the one who had the .25" (Trial Tr. 354-55, 427).
The detective later learned that Michael Rivera, the man
identified by Mr. Ventura, was incarcerated at the time of the
shooting so could not have been involved in the crime, as Mr.
Ventura had suggested.*fn5 (T. 476-77.)
On April 28, 1995, Mr. Ventura met with Detective Ciuffi and
Detective Ortiz who spoke Spanish to Mr. Ventura at the 52nd
Precinct to look at more photographs. (Wade Hearing Tr. 4, 5.)
Mr. Ventura was still "very belligerent." (T. 461.) Mr. Ventura
picked Carrion's photograph out of one of the books and
identified him as the Hispanic shooter. (Wade Hearing Tr. 6, 7.)
The next day, three detectives met with Mr. Ventura at his home
and took Mr. Ventura's statement about the incident and
descriptions of the assailants. (T. 462-63.) This time, Mr.
Ventura gave a different account of what transpired, admitting
that he entered apartment 3C just before the shooting, but
stating that he left the apartment before any shots were fired
and only heard the gunshot that killed Mr. Mercedes from the
lobby. (T. 408-10.) After that meeting, Detective Ciuffi
attempted to contact Mr. Ventura on several occasions, because he
did not believe that Mr. Ventura was telling the truth about not
witnessing Mr. Mercedes's death, but Mr. Ventura did not return
the detective's telephone messages. (T. 464, 467.)
After more than three years had passed, on September 3, 1998,
Detective Ciuffi met with Mr. Ventura at the Altona Correctional
Facility, where Mr. Ventura was serving a five to ten-year
sentence for an unrelated drug crime. (Wade Hearing Tr. 7, 8; T.
95-96.) Mr. Ventura provided Detective Ciuffi a more detailed statement of the crime and
description of the assailants. Since he was already in jail for
another drug-related crime, and so not worried about possible
identification as a drug dealer because he was in apartment 3C
with drug paraphernalia, Mr. Ventura cooperated with police and
agreed to tell the truth about what happened on the night of
April 20, 1998.*fn6 (T. 445-46, 503.)
On May 17, 1999, Mr. Ventura viewed a six-suspect photo array
at the Bronx District Attorney's Office and identified Carrion as
the person who shot and killed Mr. Mercedes. (Wade Hearing Tr. 8,
9.) As a result this identification, Detective Ciuffi had Carrion
placed in custody. (Wade Hearing Tr. 12.) On May 26, 1999, Mr.
Ventura came to the 48th Precinct and viewed a lineup, at which
he again identified Carrion as the shooter. (Wade Hearing Tr. 12,
16; T. 146-48.) As a result of this lineup identification, police
arrested Carrion in May 1999 and indicted him for the murder of
Juan Mercedes and the attempted murder of Juan Ventura.
A jury trial was held before Judge Steven L. Barrett of the New
York Supreme Court, Bronx County, Criminal Term in January 2001.
The only evidence linking Carrion to the ...