REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:
Chris Applewhite brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York state Supreme Court, New York County, for first degree assault, first degree criminal use of a firearm, and second and third degree criminal possession of a weapon. Mr. Applewhite argues that: (1) he was convicted on the basis of evidence that was obtained pursuant to an illegal search and should have been excluded; (2) he was denied a fair trial because a witness who was unable to identify him in a pretrial line-up repeatedly referred to him as "the shooter" during the trial; (3) the trial judge improperly instructed the jury that it could infer consciousness of guilt from evidence that "the defendant" fled the scene of the crime after the shooting when the defendant's identity as the shooter was in dispute; (4) the trial court erroneously refused to charge the jury on the unreliability of cross-race identification; and (5) the sentence was excessive and unduly harsh. For the reasons that follow, I recommend that the petition be denied.
A. The Shooting of Michael Collozo
In the early morning hours of Sunday, October 12, 1997, the victim, Michael Collozo, and four friends -- Robert Calero, Eric Flores, Robert Garcia, and Christian Valdera -- were at Playland, a video arcade located on the west side of Broadway at 47th Street in Manhattan. (Tr. 297, 475, 720-21).*fn1 There was a Howard Johnson Restaurant at the other end of the block, on the corner of 46th Street. (Tr. 297, 370, 428-29). In front of Playland, the intersection of Broadway and Seventh Avenue forms a triangular island called Duffy Square. (Tr. 302-04, 306-07, 671). Across the intersection is a McDonald's restaurant. (Tr. 306).
While Mr. Valdera and Mr. Garcia finished playing a game, Mr. Collozo, Mr. Calero, and Mr. Flores went outside Playland to wait. (Tr. 302, 469, 651-53, 722). Standing nearby was another group of young men, whom Mr. Flores and Mr. Calero perceived were "looking at [them] wrong." (Tr. 469-70, 477, 479, 604, 723). Uncomfortable, Mr. Calero convinced his friends to go across the street to the McDonald's. (Tr. 604, 612, 618).
As they were leaving, an altercation developed when Mr. Collozo, who was intoxicated, made offensive comments toward members of the other group. (Tr. 604, 715). Mr. Collozo's friends attempted to pull him back, but as they walked away from Playland, crossing Broadway into Duffy Square, Mr. Collozo continued to make offensive comments and yell racial epithets toward the other group, all of whom were African-American. (Tr. 350, 358-59, 479, 605, 614, 621, 730-31). Four men from the other group started to follow Mr. Collozo's friends across the street. (Tr. 621, 726). When the two groups were about four or five feet away from each other, one man pulled a small, silver-colored, semi-automatic handgun from his waistband and shot Mr. Collozo once in the stomach. (Tr. 359, 362, 366-67, 506, 622-23, 628). The shooter and his friends scattered. (Tr. 368-69, 497, 732, 743). Neither Mr. Collozo nor any of his friends had any weapons. (Tr. 354, 506-07, 629, 743, 769).
Mr. Flores and Mr. Valdera moved Mr. Collozo to the entranceway of the Howard Johnson Restaurant (Tr. 370, 630), while Mr. Calero and Mr. Garcia ran to a pay phone to call an ambulance. (Tr. 624-25). Officer John Majewicz, who was patrolling the Times Square area that night, testified that a young man flagged down his marked police cruiser and reported that his friend was at 46th Street and Broadway and had just been shot. (Tr. 428).
Officer Majewicz and his partner, Officer Aparicio, were the first on the scene, arriving at approximately the same time as an ambulance operated by paramedics Samuel Lubin and David Stern. (Tr. 427-28, 434, 765-67, 770). Patrol supervisor Sergeant James Carlo arrived shortly after. (Tr. 668-69). Mr. Collozo's condition was considered critical, and the paramedics departed with him in under two minutes. (Tr. 768). Mr. Garcia left in the ambulance with Mr. Collozo and accompanied him to St. Vincent's Hospital. (Tr. 631). Mr. Calero, Mr. Valdera, and Mr. Flores showed the officers to the crime scene, where a spent shell casing was recovered. (Tr. 509-10, 631). They also described the shooter to the officers. (Tr. 508-09, 633-34).
During this time, Detective Wallace Zeins arrived, spoke with the witnesses and other officers, and ordered the crime scene cordoned off. (Tr. 330-32, 448). Detective Zeins then proceeded to St. Vincent's Hospital, where Mr. Collozo was still in surgery. (Tr. 335). At the hospital, Detective Zeins spoke with Mr. Garcia and obtained from him a description of the shooter. (Tr. 335).
Mr. Calero, Mr. Flores, and Mr. Valdera went with Sergeant Carlo to the Midtown North Precinct, where they gave written statements. (Tr. 512, 518-20, 523-25, 633). They remained at the precinct for eight to ten hours. (Tr. 520-23). Mr. Valdera testified that at some point that morning he and his friends were informed by a member of the police department that a suspect named Chris Applewhite had been arrested. (Tr. 390-92). Mr. Flores recalled that they were told that a suspect had been arrested, but not told his name. (Tr. 518, 521-22).
Although there were some discrepancies, Mr. Valdera, Mr. Flores, and Mr. Calero all described the gun as a small silver-colored semi-automatic, and the shooter as a young black man between nineteen and twenty-five years old, between five-foot-eight and five-foot-ten, medium to slim build, wearing a black "do-rag" and a burgundy leather jacket with the brand name "Avirex" written on the back. (Tr. 363-64, 488, 505, 509).*fn2 At 2:27 a.m. a composite description of the shooter was transmitted by Sergeant Carlo. (Tr. 670; Incident Record Listing ("Incident Record"), attached as Exh. E to Traverse by Petitioner, at 1).*fn3 The transmission described one black male, five-foot-eight, wearing a burgundy jacket with "Avirex" on the back and a black "skull cap" or "skull hat" fleeing eastbound on 46th Street. (Tr. 677).
This description was primarily what Officer Christopher Navarra relied on when he detained the petitioner approximately an hour and a half later. Officer Navarra and his partner, Officer Thomas Kelly, work in the Midtown South Precinct, which shares the same radio frequency as the Midtown North Precinct where the shooting occurred. (Tr. 342-43, 438-39, 682, 803, 807). On the morning of October 12, 1997, Officers Navarra and Kelly were on patrol in the area of East 40th Street between Park and Madison Avenues. (Tr. 804). This area is approximately ten blocks away from where the shooting occurred.
Shortly before 4:00 a.m., Mr. Applewhite flagged down the officers' marked police cruiser and reported that he had just been robbed of his leather jacket by a man with a gun. (Tr. 802, 808-10). Mr. Applewhite pointed to a man who was less than half a block away, holding a gun and "walking at a quick pace" toward the corner of Madison Avenue. (Tr. 809-10, 886, 890). Both officers pursued the man and saw him throw a "maroon" jacket and a handgun under a car parked on Madison Avenue just south of 40th Street. (Tr. 810-11, 887). Officer Kelly arrested the man, identified as Ronnie Butler, and picked up the gun Mr. Butler had thrown down, a "grayish black" revolver. (Tr. 811, 816-17, 829-30, 857).
Officer Navarra collected the jacket from the ground and returned it to the petitioner. (Tr. 811, 816). Mr. Applewhite promptly put the jacket on; as he did so, Officer Navarra saw that "Avirex" was written on the back of the jacket. (Tr. 817, 852-53).
At this point, Officer Navarra realized that Mr. Applewhite fit the description of the suspect from the earlier shooting: he was a black man, twenty to twenty-five years old, approximately five-foot-eight, wearing a black "nylon silk do-rag or knit cap," dark pants, and a maroon leather jacket with "Avirex" written on the back. (Tr. 814, 816-17, 823, 853).
Believing Mr. Applewhite to be a potential suspect in the shooting, Officer Navarra proceeded to pat him down for weapons. (Tr. 818). During the outer-body frisk, the petitioner "tr[ied] to slide his hands towards his torso towards his chest area." (Tr. 818). Officer Navarra asked Mr. Applewhite to place his hands against the wall, and then patted the petitioner's chest. (Tr. 818-19). Officer Navarra felt something under the petitioner's shirt, which he discovered to be a small, silver-gray semi-automatic handgun. (Tr. 819, 821-23, 857). The gun was hanging from Mr. Applewhite's neck on a silver beaded chain looped through the trigger-guard. (Tr. 821-22). The magazine contained five bullets. (Tr. 823).
Officer Navarra handcuffed the petitioner, placed him under arrest for possession of the weapon (H. 21),*fn4 and radioed for a sergeant investigating the shooting to come to the scene. (Tr. 822). Shortly after 4:00 a.m, Detective Zeins took Mr. Garcia to 40th Street and Madison Avenue for a show-up identification of the petitioner. (Tr. 336). Mr. Garcia positively identified Mr. Applewhite. (H. 27-28). When Mr. Garcia made the identification, the petitioner and Mr. Butler were both handcuffed and standing side by side, approximately two feet away from each other. (H. 26-27). Testimony about this show-up identification was never introduced at trial because Mr. Garcia could not be located. (H. 2).
On October 15, 1997, Mr. Applewhite was placed in a line-up viewed by Eric Flores and Christian Valdera. (Tr. 373, 512-13, 684-85, 831-32). Officer Navarra and Detective Juan Jiminez conducted the line-up, at which counsel for the defense was present. (Tr. 684-86, 831-32). Mr. Valdera was unable to make an identification. (Tr. 374, 392, 406, 704). Mr. Flores positively identified Mr. Applewhite. (Tr. 516).
The petitioner was arraigned on October 30, 1997, on a grand jury indictment charging Mr. Applewhite with attempted murder and lesser charges. On December 14, 1998, a suppression hearing was held before Justice Carol Berkman. In addition to other arguments, Mr. Applewhite challenged the basis for his detention and arrest, and sought to suppress the gun as the fruit of an illegal search.
(H. 87, 89-90). Justice Berkman found that the limited pat-down search of the petitioner was proper and that the gun was therefore admissible. (H. 97-99).
During the hearing, the defense requested that a previously filed speedy-trial motion be held in abeyance pending further investigation, and the trial be postponed during this investigation. (H. 102-04). Justice Berkman refused to postpone the trial ...