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Williams v. McGinnis

May 15, 2006

JASIEM WILLIAMS, PETITIONER,
v.
SUPERINTENDENT MCGINNIS, SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Garaufis, United States District Judge.

MEMORANDUM & ORDER

Pro se petitioner Jasiem Williams ("Williams")*fn1 brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently incarcerated in Auburn Correctional Facility, located in Auburn, New York. Williams challenges his convictions rendered in New York Supreme Court, Kings County for murder in the second degree (New York Penal Law § 125.25[1]) and criminal possession of a weapon in the second degree (New York Penal Law § 265.03). For the reasons set forth below, his petition is DENIED.

I. BACKGROUND

A. Factual Background and Trial

On May 6, 1999, at approximately 8:30 p.m., Santo Risin ("Risin")*fn2 was shot in the head inside a crack house located at 1430 Eastern Parkway in Brooklyn, New York. (Williams's Brief in Support of Writ of Habeas Corpus ("Williams's Br.") at 1). Williams was charged in Kings County with two counts of murder in the second degree and criminal possession of a weapon in the second and third degrees. (Affidavit of Cynthia Kean ("Kean Aff.") ¶ 5). At trial, three witnesses gave testimony implicating Williams in the murder: Rose Johnson ("Johnson"), Marie Folson ("Folson"), and Gilliam Needham ("Needham"). In addition to these three witnesses, Police Officer Wayne Oliveria ("Officer Oliveria"), Paramedic William Bohr ("Bohr"), Detective Robert Schulman ("Detective Schulman"), Detective William Gallagher ("Detective Gallagher"), and Dr. Steven Shapiro ("Dr. Shapiro") also testified at trial.

1. Johnson's Testimony

Rose Johnson, the first witness, had a lengthy criminal record which included a 1998 conviction for attempted assault in the third degree, a 1996 conviction for criminal possession of controlled substance in the third degree, a 1994 conviction for criminal possession of a controlled substance, a parole violation in 1996, and another in 1998. (Johnson T. at 35-36).*fn3 At the time of Williams's trial, Johnson was incarcerated for a third parole violation. (Id. at 34). Johnson testified that she frequented 1430 Eastern Parkway to purchase and smoke crack cocaine. (Id. at 39-40). She also testified to having purchased crack from Williams on "plenty of occasions." (Id. at 40).

Johnson testified that on May 6, 1999, she was waiting for Risin, with whom she often met to smoke crack, in front of 1430 Eastern Parkway. (Id. at 39, 41). She saw Risin come inside the building, and proceed into Folson's apartment, located in the rear portion of the building. (Id. at 41). Johnson then went upstairs to the second floor, and when she came outside in front of the building, she heard an argument between Williams and Risin. (Id. at 43).

Williams asked Risin, "what you got in your pocket?" (Id. at 43-44). Risin replied, "don't worry about what I have in my pocket. Did I ask you what you have in your pocket." (Id. at 43-44). Williams responded, "are you getting smart with me?," to which Risin replied, "take it how you want to take it?" (Id. at 44). Johnson testified that she then heard Williams say, "I go get my gun and come back and shoot you." (Id.). At that time, Johnson took the staircase back to the second floor of the building, from where she saw Williams, along with "Ray Ray,"*fn4 and "B," exit the building, and then immediately return. (Id. at 45-46). Johnson then heard Ray Ray, who used to sell drugs, and B say "no, don't do it," and then a gun shot, which she thought to be a firecracker. (Id. at 47, 57). After the shot, she saw Williams, Ray Ray, and B exit the building. (Id. at 48). Johnson also testified to having seen Ray Ray with a small gun, either a .22 or .25 caliber, earlier that day. (Id. at 58).

At that point, a man known as "Car Wash" entered the building and proceeded towards Folson's apartment. (Id. at 49). Johnson testified that she then came downstairs and saw Risin lying on his back on the kitchen floor. (Id.). She knocked on the basement door to call the building's superintendent and told him that something was wrong with Risin. (Id.). Johnson testified to having initially thought that Risin had not been shot, but rather "got ahold of some bad crack." (Id.). Car Wash then called the police, and when the police came, Johnson fetched Risin's brother and sister. (Id. at 49-50). Johnson further testified that Williams, Ray Ray, and B walked up to her and Risin's siblings, and asked what happened. (Id. at 51).

Johnson admitted to having smoked crack cocaine on the day of the shooting. (Id. at 55).

She also testified that she did not speak to the police officers when they arrived at 1430 Eastern Parkway, but spoke to them at midnight after smoking some more crack. (Id. at 70-71). She also admitted to using a false name of "Rose Jones" when she spoke to the police that evening. (Id. at 55). Johnson explained that she used the name Jones because she was "running from parole and [] had a parole warrant." (Id. at 70).

2. Folson's Testimony

Marie Folson admitted on the stand to drinking heavily, and stated that people would consider her an alcoholic. (Folson T. at 87). She testified that she had been drinking "quite a bit" on the day of the shooting. (Id. at 115). She also admitted to having been convicted of several crimes including petit larceny, disorderly conduct, and reckless endangerment. (Id. 87-88). Folson testified that she was in her apartment at 1430 Eastern Parkway on the evening of May 6, 1999, with the door ajar, when she heard Williams and Risin argue in the first floor common area over Risin "disrespecting" Williams. (Id. at 92-93). Folson witnessed Williams leaving the building and returning with a gun. (Id. at 94). She then saw Williams point a gun at the right side of Risin's head, just above his ear, and saw Risin "hit the floor." (Id. at 96). Although she did not hear a gun shot, she saw Risin bleeding from the side of his head. (Id. at 105-6). Folson testified that she did not think Risin had been shot, but rather told police that she thought he was having a seizure. (Id.).

On cross-examination, Folson admitted that when she was questioned by the police, she lied by telling them that she was asleep during the incident. (Id. at 104-5). She explained, "I was scared as hell to say the truth. . . ." (Id. at 105). Defense counsel also tried to impeach Folson's credibility with a prior inconsistent statement. In her prior statement before the Grand Jury, Folson had attested that there was a search for a gun after the shooting. (Id. at 118-19). At the trial, however, Folson testified that no one had been looking for a gun after the shooting. (Id.). When asked about a previous reckless endangerment charge to which she had pled guilty, Folson explained that she had set her shirt on fire while hospitalized in a mental ward for approximately one month sometime around 1987. (Id. at 107). Folson also testified to having spent time during the 1980's in "quite a few" mental hospitals. (Id.). She testified that she had not informed the District Attorney of her history of mental illness because he had never asked. (Id.).

At this point in the trial, a discovery matter arose with respect to Folson's mental health records. Williams's counsel requested copies of Folson's medical records from the various mental institutions in which she was treated. (Id. at 134-35). Counsel also requested the opportunity to call Folson back for further cross-examination. (Id.). The prosecutor responded that Folson did not tell him about her mental history, and that he had complied with defense counsel's request to obtain any records regarding her treatment programs, of which Folson apparently had none. (Id. at 135). At that time, the court directed subpoenas to be drawn up, (id. at 136), which were issued on that very day. (T. at 243).

At a subsequent discussion of the issue which followed the testimony of other witnesses, the court indicated that the medical records at issue were "clearly not Giglio [material] . . . but somewhere within Rosario and Brady." (T. at 244). The court indicated to defense counsel that he was free to question Folson further. (Id.). Counsel responded, "but I need something that I can base my cross-examination on and that would be the medical records." (Id.). The court asked defense counsel if he would seek an adjournment if the records did not come in by the following day when the summations and jury charge were set to take place. (Id. at 244-45). It was decided that they would wait to see if the records came in the following day before making any decision. (Id. at 245).

The next day, the court expressed its plan to hold summation and charges on the following day, and directed the prosecution to have Folson available for cross-examination should the medical records become available in advance. (Id. at 249). The Judge stated:

As far as I'm concerned, the district attorney has done everything he could do. The Giglio matter that you raised I don't think applies here. But as you know yesterday I signed the subpoena duces tecum to get those records. . . .

Tomorrow if the records are here, or if you want to recall her, you have that option, even though I don't think under the law you're entitled to. But it's a homicide case and I don't want to argue that point. I'm just telling you I don't think you have a right to it. But I am doing it. As I said, this is a homicide and I want to do everything possible to be of help to you.

Id. at 249-50. It was decided that summation and jury charge would occur the next day, and that Folson would be available to testify in the morning if the need arose. (Id. at 250-51). The records did not arrive on time, and the defense chose not to cross-examine Folson for a second time without the records. (Id. at 249, 285).

3. Needham's Testimony

Needham was a last-minute witness who only surfaced ten days before her testimony. (Needham T. at 165-66). On cross-examination, Needham testified that from May 6, 1999 to November 20, 1999, she did not speak to anyone about what she saw on the evening of the homicide. (Id. at 168-69). However, she changed her testimony a few minutes later and admitted to speaking in November with Risin's brother, who gave the police her name as a witness. (Id. at 169-170).

Needham lived at 1675 Lincoln Place, the building adjoining Williams's residence, and across the street from 1430 Eastern Parkway. (Id. at 142). Needham's testimony was substantially different from Johnson's. Needham testified that she was sitting on her stoop across the street from 1430 Eastern Parkway on the day of the homicide, and that she did not see anyone out on the stoop of that building. (Id. at 144, 150). Furthermore, according to Needham, when Risin arrived, he did not go to the stoop at 1430 Eastern Parkway, but instead sat on the steps of her building and had a conversation with her. (Id. at 144-45). While Johnson did not mention that Williams was on the street at that time, Needham testified that she heard Williams call out a greeting to Risin. (Id.). Needham then watched Risin walk across the street and have a conversation with Williams. (Id. at 146). She saw Williams walk back across the street and meet two other men, who Needham recognized but did not know by name. (Id.).

Needham testified that she saw Williams and the two other men enter 1430 Eastern Parkway. (Id. at 149). She then heard a noise that sounded like a firecracker and "didn't pay it no mind." (Id. at 150-51). She testified that the door of 1430 Eastern Parkway was open about two inches when she heard this noise. (Id. at 173-74). She then witnessed Williams "walking fast" out of 1430 Eastern Parkway and going into his building across the street. (Id. at 151-53). Needham, who saw Williams coming out of the building, did not testify that Williams was with anyone, in contradiction to Johnson's earlier testimony that she saw Williams exit the building with Ray Ray and B. (Id. at 173). Needham also testified to seeing Johnson running out of the building, going across the street, and running back over. (Id. at 176). Moreover, Needham made no mention of Car Wash entering the building after the shooting. Later in the evening, when Needham was in front of her building, she saw Williams returning to his building for a second time. (Id. at 157). At that time, she overheard one of Williams's companions ask him, "why did you shoot Santos?" (Id.). Williams responded, "he disrespect me." (Id.).

4. Testimony of the Remaining Witnesses

Officer Oliveria received a 911 call to respond to1430 Eastern Parkway. (Oliveria T. at 187). When he got there, he found Risin lying on the kitchen floor of the first floor apartment. (Id. at 188). Officer Oliveria testified that he also saw another female in the kitchen, who he believed had made the 911 call. (Id. at 192). However, Johnson had earlier testified that a man named Car Wash had made the 911 call. (Johnson T. at 49-50). Officer Oliveria also testified that when he asked other tenants in the building about what had happened to Risin, everyone responded that they did not know anything because they were sleeping. (Oliveria T. at 197). Furthermore, Officer Oliveria did not see any blood on Risin's head or anywhere on his body. (Id. at 198).

Bohr, the paramedic, arrived ten minutes later, (id. at 195), and testified that he initially treated Risin for a possible seizure and head trauma, but not for a gunshot wound. (Bohr T. at 183). The next day, a CAT scan performed on Risin at Kings County Hospital revealed a .22 caliber bullet in the right side of his brain. (Shapiro T. at 274). Risin died two days after the shooting from the gunshot wound. (Id. at 270). The medical examiner found no evidence that Risin was shot at close range, although any such evidence may have been washed away by medical personnel. (Id. at 274-75).

Detective Gallagher testified that Williams was read Miranda rights after his arrest when he was brought to the 73rd Precinct on the night of May 10, 1999. (Gallagher T. at 224-25). The next morning, Detective Gallagher questioned Williams about Risin's shooting. (Id. at 226-27). According to Detective Gallagher, Williams told him that he was in a second floor apartment at 1430 Eastern Parkway when he heard a gun shot, at which point he came downstairs and saw Peanut running out of the first floor apartment. (Id. at 227). Williams stated that he remained on the first floor at 1430 Eastern Parkway until the ambulance came and took Risin away. (Id.). After Williams made this oral statement, Detective Gallagher left him alone and told him to reduce his statement to writing. (Id. at 228). Detective Gallagher later returned and read Williams's hand-written statement, which "was a different version than what he had verbally [given] [] earlier." (Id. at 228). Specifically, Williams left out the information about Peanut running out of the apartment, and explained that he had done so because he didn't think that Detective Gallagher believed that portion of the story. (Id. at 228-29). Detective Gallagher asked Williams to write a new statement recounting what he did and what he saw on that day. (Id. at 229). Williams then ripped up the initial ...


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