The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Thomas Pratt ("Pratt") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of second degree (depraved indifference) murder and third degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
The conviction here at issue stems from the fatal shooting of Joshua Ezell ("Ezell") at about 9:25 p.m. on July 22, 1997, on Hayward Avenue in the City of Rochester. Ezell was shot twice, once in his left forearm with a .25-caliber bullet, and once in the chest with a 9-mm bullet.
T.435. The 9-mm bullet pierced his aorta and caused his death on the scene. Fifty-seven-year-old Jesse Hudson ("Hudson") witnessed the shooting from his house at 372 Hayward Avenue. That evening, Hudson told the police that he saw Ezell fighting with a man whom he knew from the neighborhood as "Fruit" (i.e., Pratt) and another individual in front of 378 Hayward Avenue, and that during the altercation, Pratt shot Ezell at close range.
At 2:20 a.m. on the morning of July 23, 1997, Pratt appeared in the emergency room at Millard Fillmore Hospital, located about 60 miles away in Amherst, New York, for treatment of a gunshot wound to his shoulder. T.515-516.*fn1 Pratt, who was accompanied by Melissa Pearce ("Pearce") and Edward Washington ("Washington"), identified himself using a false name ("Howard Washington") and address (Utica, New York). Pratt explained that he had been shot when he flagged someone down on the highway on the way home from Niagara Falls to ask for directions. After hearing this suspicious story, hospital staff called the police, who soon discovered Pratt's real identity. Following minor surgery to remove a .25-caliber bullet from his shoulder, Pratt was transported to the police station in Clarence, New York, where he was later picked up by Rochester police and charged in connection with Ezell's shooting.
Originally, Pratt was charged by felony complaint with manslaughter in the first degree. He chose to waive immunity and testify before the grand jury, beginning his testimony with the following statement:
My name is Thomas Pratt. I live at 52 Fourth Street. I work at Molding Corporation full-time. It was July 22nd, and I was at my girlfriend Latisha Douglas' house visiting. As I was visiting she wanted to walk to the store. She went to the store. As she was coming back to from [sic] the store she stopped to talk to her friend. As she was talking to her friend a guy approached her. As the guy approached her I stepped off my porch, I wanted to see what was the problem. As I walked toward the problem [sic] I asked the guy to let her go home. He said "no, I'm going to kill the B. I'm going to kill the B." So I stepped in the middle. He pulls out his gun and pushes my girlfriend. He shot, I grabbed him, we struggled and we just struggled and I heard another shot. And as we were struggling, as far as I fell, my girlfriend got me up, she took me home. So that's all I have to say.
Record on Appeal ("A.") at 92-93 (attached as pp. 184-185 of Appendix ("App.") E to Respondent's Answer ("Resp't Ans.") (Docket #21). On cross-examination, Pratt testified that his girlfriend, Latisha Douglas ("Douglas"), lived at 366 Hayward Avenue. He stated that neither he nor Douglas was carrying a weapon that night, and that Douglas was carrying a radio in one hand a bottle of soda in the other. Pratt further explained that Ezell pulled out a gun when Pratt stepped in between him and Douglas, which precipitated the struggle between the two men. Pratt did not recall in which hand Ezell held the gun. A.115, attached as p. 207 of App. E to Resp't Ans. (Docket #21). Pratt testified that after the second shot was fired, both he and Ezell fell to the ground. However, Pratt did not know whether Ezell had been shot. A.125, attached as p. 217 of App. E to Resp't Ans. (Docket #21). According to Pratt, he laid on the ground for three to five minutes before Douglas helped him up and took him to her house. A.125-26 (attached as pp. 217-218 of App. E to Resp't Ans. (Docket #21).
Upon further questioning, Pratt informed the grand jury that Pearce arrived at Douglas's house about ten minutes later and picked Pratt up in her car. Douglas remained at home, however. Pearce then picked up Pratt's cousin, Washington, and the trio drove to a hospital near Buffalo. When asked why he did not go to a hospital in Rochester, Pratt replied, "Because I was scared. She [Pearce] said she heard that my girlfriend [Douglas] was involved in the shooting, that she did the shooting and I was trying to protect my girlfriend and I was scared." A.134 attached as p. 226 of App. E to Resp't Ans. (Docket #21).
Pratt acknowledged that Douglas had done nothing wrong but stated that he went to Buffalo anyway because Pearce suggested he do so. (Indeed, according to Pratt's version of events, Douglas did not even have a weapon and so she ostensibly could not have shot Ezell.)
Pratt told the grand jury that he was bleeding profusely and was in a great deal of pain, but did not ask to go to a hospital in Rochester. When asked why he gave a false name and bogus story at the hospital in Buffalo, Pratt again explained that he was scared, and that he just wanted to get the bullet out of his arm. A.145, attached as pp. 237 of App. E to Resp't Ans. (Docket #21).
On October 9, 1997, the grand jury returned an indictment charging Pratt with intentional murder, depraved indifference murder, criminal possession of a weapon in the second and third degrees, and bribery of a witness. The bribery count alleged that, on September 14, 1997, Pratt, while released on bail, offered to confer a benefit upon eyewitness Hudson with the understanding that it would influence his testimony.
Pratt was tried before a jury in Monroe County Court (Bristol, J.). The prosecution's key witness was Hudson who, shortly after the crime was committed, told the police that he saw Pratt shoot Ezell. Hudson testified that at about 9:25 p.m. on July 22, 1997, his ex-daughter-in-law told him that some people were fighting outside their apartment at 372 Hayward Avenue. T.303-304. Hudson went out onto the porch and saw two men and one woman standing on the sidewalk between 372 and 378 Hayward Avenue. T.305-309. The men were Pratt and Ezell; Hudson knew the woman as "Shorty." T.309-310. When he observed the group, Hudson was standing about fifteen to twenty feet away. T.312. According to Hudson, the two men had their hands on each other's shoulders and were mumbling at each other but he could not make out what they were saying very well. He heard someone say, "I got mine" and "I'm going to pop you," but he could tell who was saying what. T.312-313. Hudson then saw Pratt fire three shots at Ezell, who was hit in the chest and fell backwards. T.316-317. Hudson told the police that the gun used by Pratt looked like the type of gun used by the police. T.314. Hudson did not see Ezell holding a gun.
T.318. After Pratt shot Ezell, Hudson saw him walk across the street and then return to look at Ezell's body for a moment. That is when Hudson went to call the police.
Hudson further testified that Pratt stopped by his house at about 9:30 p.m. on September 14, 1997, some two months after the shooting. T.318-319. Pratt asked Hudson what he had told the police; Hudson responded that he told the police what he had seen. Pratt suggested that Hudson change his statement and say that he was "high off a blunt [marijuana] and whiskey." When the prosecutor asked Hudson whether Pratt offered him anything in return, Hudosn answered, "Not at that time." T.320.
On cross-examination, defense counsel sought to impeach Hudson's credibility with prior bad acts and drug usage. Hudson acknowledged, "I use drugs. Used to. Used to." T.329. About five days before the shooting, he bought cocaine on the street from "Shorty" (i.e., Douglas, Pratt's girlfriend). T.330, 354. Hudson acknowledged that he had been arrested and convicted for a number of crimes. However, Hudson had no pending charges at the time of trial and received nothing from the prosecution in return for his testimony.
Defense counsel also cross-examined Hudson about several statements given to the police just after the incident which differed from Hudson's trial testimony. When asked whether he spoke to a uniformed police officer named Slapelis, Hudson replied, "Not as I remember," and denied speaking to any uniformed police officer on the night of the shooting. T.333.
Patrol Officer Slapelis, however, testified that after the incident, he took a statement from Hudson in which Hudson said that "he heard three shots" and "saw the victim fall to the ground and two males running from the immediate area." T.594. Hudson told Officer Slapelis that one man was Pratt and the other was named Bleek. Bleek lived at 378 Hayward Avenue, the address in front of which Ezell was shot.
Defense counsel also cross-examined Hudson about statements made to Officer Reinstein. Hudson insisted that he never spoke to Officer Reinstein. T.325. Officer Reinstein testified that Hudson gave him the following statement:
[Hudson saw] three males in a scuffle . . . [The victim, Ezell] was being held by two other males . . . one was Thomas [Pratt] and the other was Bleek [who] lives at 378 Hayward. Bleek had a bottle in his hand. With the other he was holding [Ezell's] left hand. Bleek hit [Ezell] in the face with a bottle. [Pratt] shot [Ezell] three times. They ran across the street into backyard and got in a car.
T.336. Hudson denied giving this statement to Officer Reinstein. T.336.
Officer Reinstein testified that Hudson, after speaking to someone in his house, changed his story about the gender of the third party involved in the altercation. T.586. In a third conversation held fifteen minutes later between Hudson and Detective D'Ambrosio, Hudson stated that the person whom he identified as Bleek might have been a female instead of Bleek.
T.583-592. Hudson acknowledged signing the statement taken by Detective D'Ambrosio. T.338. Pratt's grand jury testimony, detailed supra, was admitted at trial. Pratt did not testify in his own behalf.
The attending nurse from Millard Fillmore hospital and the police officer who responded to the hospital to question Pratt also testified about him giving a false name and a bogus story at the emergency room. Contrary to Pratt's description of his injury, the nurse described Pratt's wound as "minor" and recounted that he was not bleeding very much at all. T.516-517. The nurse recalled that Pratt seemed clear and lucid and "didn't seem to be in any great discomfort." T.518.
With respect to the forensic evidence, the medical examiner testified that the victim suffered two gunshot wounds--one to the left forearm, caused by a .25-caliber bullet, and another to the upper chest, caused by a 9-mm bullet. The 9-mm bullet passed through the victim's lungs and aorta, thereby causing his death. The forearm injury did not contribute to the victim's death. Pratt was shot only once, with a .25-caliber bullet.
The first police officer who responded to the crime scene discovered a .25-caliber Ravens Arms automatic pistol underneath the victim's body, which had been turned over and moved by the emergency medical personnel. Also found at the scene were two .25-caliber casings and one 9-mm casing. However, the murder weapon (the 9-mm gun) was never recovered.
The prosecution's ballistics expert, tested the recovered casings, the .25-caliber pistol, the bullets removed from petitioner and the victim, and clothing worn by the victim at the time he was shot. The hole in the chest area of the victim's jacket had "a great amount of tearing and ripping," indicating that hot gases from the gun barrel were close to the jacket when the fatal bullet was discharged. T.539-540. The ballistics expert testified that, based on his examination of the victim's clothing, the 9-mm bullet was fired at close range, i.e., within several inches of the victim's body. The hole on the left sleeve of the jacket did not suggest that the .25-caliber bullet that caused the victim's forearm injury was fired from close range. T.540. The expert further testified that the .25-caliber bullet removed from the victim was fired from the pistol found at the crime scene, and that the bullet removed from petitioner's arm could have been fired by that same weapon. T.537, 549.
The chief medical examiner related that tests conducted on the victim's skin showed that the 9-mm bullet was fired at "near range," i.e., "[w]ithin inches or so," whereas the .25-caliber bullet was not fired from close range. T.436, 438-439. On cross-examination, the medical examiner acknowledged that the initial report prepared by the deputy medical examiner stated that there was "no positive evidence of close range of fire." T.454. The chief medical examiner explained that his deputy's report, completed after the autopsy, was merely preliminary. Further examination of the victim's skin under a microscope by the chief medical examiner showed probable evidence of near contact range. T.456-457.
On March 9, 1998, the jury rendered a verdict acquitting Pratt of intentional murder and criminal possession of a weapon with the intent to use it unlawfully, but convicting him of depraved indifference murder (N.Y. Penal Law § 125.25(2)) and third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(4)). Pratt was sentenced to three and one-half to seven years on the weapons possession count and twenty-five years to life on the murder count, those sentences to be served concurrently.
Represented by new counsel, Pratt appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court and raised the following issues: (1) the evidence was insufficient to prove that defendant fired the fatal shot; (2) the verdict that defendant fired the fatal shot was against the weight of the evidence; (3) the verdict with respect to the element of "depraved indifference" was against the weight of the evidence; (4) the trial court erred in failing to issue a jury instruction on the justification defense; and (5) defendant did not receive the effective assistance of counsel because counsel did not request a justification instruction, counsel failed to compel the attendance of defendant's girlfriend at trial, and counsel failed to move for a trial order of dismissal. The Fourth Department unanimously affirmed his conviction on March 29, 2000. People v. Pratt, 270 A.D.2d 958, 705 N.Y.S.2d 310 (App. Div. 4th Dept. 2000). ...