The opinion of the court was delivered by: Denny Chin, D.J.
Pro se petitioner Warren Smith petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Smith was convicted of one count of Robbery in the First Degree and one count of Burglary in the First Degree. He was sentenced as a second felony offender to two concurrent twenty-five year prison terms. Smith contends that his constitutional rights were violated because: (1) he was not afforded due process during his grand jury testimony; (2) his second trial violated his double jeopardy rights; (3) he was denied the opportunity to be present during all material phases of his trial; (4) he was denied the right to testify at his trial; and (5) he received ineffective assistance from his trial counsel. For the reasons that follow, the petition is denied.
Smith was convicted of robberies at two hotels, the Quality Inn and the Milford Plaza. The instant habeas petition challenges the conviction for the Milford Plaza robbery, but the facts of both robberies -- as well as an additional attempted robbery at the Milford Plaza -- are set forth below.
On May 15, 1999, Cheuk and David Gin were guests at the Quality Inn Hotel and Suites in Manhattan. (Tr.*fn2 96, 128-29). A security camera showed Smith entering the premises at 7:01 a.m. and standing in the lobby at 7:20 a.m.. (Tr. at 229, 231). At approximately 7:15 a.m., petitioner knocked on the Gins' door and stated that he had to check a leak in the bathroom. (Tr. at 97, 129-30). Petitioner pretended to examine the bathroom and then threatened that he would "blow [Cheuk's] fucking head off" if he did not lie on the floor. (Tr. at 102-04, 120-23, 131). Smith took $700 from Cheuk's wallet and $200 from David's pants pocket. (Tr. at 104-05, 121-22, 132-35). Cheuk stood up during the robbery, and petitioner punched him in the side of the head before running out the door and down the stairs. (Tr. at 106-07, 135).
On May 26, 1999, Kevin Ferguson was staying as a guest in room 1452 at the Milford Plaza Hotel in Manhattan. At approximately 8:25 p.m., petitioner knocked on Ferguson's door, identified himself as a maintenance worker, and stated that he needed to check the bathroom for a leak. Ferguson refused to open the door and threatened to call the hotel manager. Smith promptly left. Ferguson then went to the lobby and described the incident to a hotel security officer named Robert Noonan. (RX B at 5-6; RX C at 3-4).
At approximately 8:30 p.m., petitioner knocked on Michael McNulty's door in room 841 of the Milford Plaza and made a similar request. McNulty let Smith in, but he became suspicious after noticing that petitioner lacked a toolkit. McNulty gathered his wallet, some loose money, and a bank envelope containing $50. As McNulty moved towards the room's door, Smith approached him and said, "[y]ou know what this is." Smith then put his hand in his left pants pocket and told McNulty not to "do anything."*fn3 (RX B at 6-7; RX C at 4-6).
Smith ordered McNulty to get on the floor and pulled the phone cord out of the wall. He took McNulty's cash and wallet, and he asked for the pin numbers for the credit cards. McNulty said he did not know the numbers and an argument ensued. Smith eventually took the $50 from the bank envelope. Before leaving, Smith threatened that he would return if McNulty did not remain on the floor for ten minutes. McNulty waited ten seconds, reconnected the phone, and called hotel security to report the robbery. (RX B at 7; RX C at 6-7).
Security guard Robert Noonan received McNulty's call in the lobby at the same time that Ferguson was describing Smith to him. Noonan immediately noticed a man in the lobby matching the description given by Ferguson. Ferguson confirmed that the man was Smith. Noonan asked him to remain in the hotel, but Smith rushed down a stairway that led to the street. Noonan and Ferguson followed him into a subway station and yelled for police. (RX B at 6; RX C at 9-10).
Officer Thomas Renna was in the station and responded to their shouts. He testified that he saw Smith appear to throw something on the subway tracks. Officer Renna did not see the object, but he heard a "tick of metal" hit the track before he apprehended and arrested Smith. Police stopped the subway trains that night for approximately three minutes to conduct a search for the object Smith discarded. Officer Renna testified that none of the officers were certified to go down on the tracks, but that he believed the search from the platform was sufficient to uncover any "large-sized weapons." Their efforts, however, were fruitless. (RX C at 10-12).
A post-arrest search at the police station found $69 in cash in Smith's right rear pants pocket.
A. Grand Jury Proceedings
On June 1, 1999, petitioner appeared before the grand jury with his attorney, waived immunity, and testified. He was cross-examined by an Assistant District Attorney. Following that testimony, Smith filed motions to dismiss, both pro se and through counsel, alleging prosecutorial misconduct relating to his grand jury appearance. The Honorable Carol Berkman reviewed the grand jury minutes and denied the motions on September 22, 1999. (RX C at 23).
A New York County Grand Jury indicted Smith on June 14, 1999 for the robbery of Michael McNulty. He was charged with one count of Robbery in the First Degree and one count of Burglary in the First Degree. On November 1, 1999, petitioner was separately indicted on one count of Burglary in the First Degree and two counts of Robbery in the Second Degree for the robbery of Cheuk and David Gin. The two indictments were consolidated. (Pet. Mem. Ex. A).
Petitioner's trial with respect to both the McNulty and the Gin
robberies started on March 3, 2000 before Judge Ira Beal.*fn4
The jury began deliberations during the afternoon of March 8,
2000. On that day, it requested the police complaint filed by McNulty,
several legal instructions, and readbacks of McNulty's testimony. (Tr.
361-63). The judge told the jury that the police report was not in
evidence, and re-read portions of the testimony and charges on the
morning of March 9, 2000. (Tr. 362-73).
The jury subsequently sent a note to Judge Beal that asked: (1) whether McNulty had to believe that petitioner possessed a firearm to be found guilty; (2) whether the weapon had to have actually been a firearm; and (3) what would happen if it was unanimous on three of the charges but could not reach verdicts on the remaining two. (Tr. 375-80). Petitioner's counsel suggested that the court re-read the initial jury instructions to answer the first two questions. (Tr. 375). The judge then took a partial verdict, and the jury convicted Smith on the charges relating to the robbery of the Cheuk and David Gin. (Tr. 381-85). In response to the remaining questions, the judge followed Smith's counsel's suggestion and relied on the jury instructions in his answers. He told the jury that "[i]t must appear by sight, touch or sound [to the victim] that he is threatened by a firearm" and that "the defendant's conduct must reasonably lead the victim to believe that a gun was being used during the robbery." (Tr. 386). The jury continued deliberating on the charges relating to the McNulty robbery, and received additional readbacks of testimony throughout the day. (Tr. 387-91).
In the afternoon the jury sent another note indicating that it was deadlocked. (Tr. 391). The prosecutor requested an Allen charge, and Smith's counsel made no comments or objections. (Tr. 392). The judge told the jury that he had "no reason to think if the next jury were to try it again, it would be any brighter than you people," and:
While perhaps the minority viewpoint may be a correct one, I would like you to take another shot at deliberation, and I would like the people who are in the minority to give some thought as to whether perhaps the majority, whatever that viewpoint might be, is not the correct one. And I would appreciate, it's still comparatively early in the day, if you would make another attempt at a verdict in this case, please. So if you would. (Tr. 392-93). After the jury left the courtroom, Smith's counsel objected to the instruction, particularly "that portion in which [the court] said that the minority might want to take into account what the majority is thinking." (Tr. 393).
At approximately 3:00 p.m., the jury sent another note indicating that it was evenly divided on the remaining counts of the indictment. (Tr. 394). The judge asked if there were any applications or comments, and Smith's counsel replied "I leave it to the Court's discretion." (Id.). Smith's counsel noted that the jury had only deliberated for half an hour since the last note, and requested that the judge ask if additional deliberation might be useful. (Id.). The judge agreed, and asked petitioner's counsel, "[y]ou are not asking for a mistrial in this case?" (Tr. 394-95). He said that he was not. (Tr. 395). The judge then asked the jury:
Do you think there's any useful purpose to having deliberations continue? What are your views on that?
I'm going to ask you individually whether you think the jury is helplessly, hopelessly -- a better choice -- hopelessly hung on the first two counts . . . . (Tr. 395-96). When polled, each juror agreed that the jury was "hopelessly hung." (Tr. 397-98). The court then declared a mistrial, noting that "[a]ll twelve jurors felt there would be no point to continuing negotiations or discussions among the jurors. So . . . I declared a mistrial . . . ." (Tr. 399). Petitioner's counsel made no objection. (Id.).
Smith was sentenced as a violent felony predicate offender for the robbery of the Gins. He received concurrent prison terms of twenty years on the burglary count and twelve years on each robbery count. See People v. Smith, 283 A.D.2d 208 (1st Dep't 2001), leave denied, 96 N.Y.2d 907 (2001).
Smith's retrial on the charges relating to the McNulty robbery began on June 5, 2000, before the Honorable Budd G. Goodman. Kevin Ferguson and Robert Noonan testified about their encounters with petitioner on May 26, 1999. (RX C at 3-4, 9-10). Police Officers Arthur Caddigan, James Friel, Gregory Young, and Thomas Renna described their observations from that day and their investigation of the robbery.*fn5 (RX C at 8 n.4, 10-11). Michael McNulty testified that he saw the outline of something that looked like a gun in Smith's pocket, Smith appeared to be pointing the object toward him, Smith threatened to use the object, and he believed Smith had a gun. (RX C at 6).
During McNulty's redirect examination, Smith said "something unintelligible." (Tr2.*fn6 329). The judge told Smith to "be quiet" and excused the jurors from the courtroom. (Id.). Before the jury was gone, petitioner stated: "I'm all right. Letting this D.A. come in here and say this man is here. I ain't going to be quiet." (Id.). He added: "I got railroaded before. I'm not getting railroaded again, and you know you lying. Tell me you ain't say that to the police. I ain't took nothing." (Id.). After the jury was excused, the judge instructed Smith's counsel to "go back and tell your client the next time he makes an outburst in this courtroom he will be removed from the trial permanently." (Tr2. 330).
Before the jury returned, Smith's attorney reported to the judge that it "might make [Smith] a lot happier" if he could reopen his cross-examination of McNulty to ask him about the police report that was based on his complaint. (Id.). The court granted the request and Smith was brought back into the courtroom. (Id.). Petitioner then asked to speak with the judge, but his request was denied. (Tr2. 331). Smith interjected, "[t]his is my life on the line." (Id.). The judge responded that he had adequate representation, he would have an opportunity to testify, and he would forfeit his right to be present at the trial if there were further problems. (Id.).
Smith remarked, "I don't want to make no outburst. . . but you know what you're doing to me, Your Honor." (Tr2. 331). He then alleged that the State had failed to turn over "Grady [sic] material" and that McNulty's testimony was inconsistent with his statements to the police. (Tr2. 331-32). The judge warned Smith that if he disrupted the proceedings again he would forfeit his right to be present at the trial. (Tr2. 332). Smith stated:
After I got a hundred years already, Your Honor.
And, you know what, a foreperson on the jury said I wasn't guilty. And I got the papers, and I still got a hundred years. The foreperson got up and said I wasn't guilty. What kind of fair trial am I getting? Tell me that. I know that. (Id.). Following this statement, the judge ordered the court officers to remove petitioner. (Id.). ...