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Wilson v. Ercole

March 23, 2009

LEONARD WILSON, PRO SE, PETITIONER,
v.
SUPERINTENDENT ERCOLE, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

OPINION AND ORDER

Pro se petitioner Leonard Wilson, is currently serving a sentence of twenty-five years to life following his conviction in New York State Supreme Court, Richmond County, for second degree murder, New York Penal Law § 125.25[3], second degree manslaughter, New York Penal Law § 125.15[1], two counts of first degree attempted robbery, New York Penal Law § 110/160.15[1] and [2], and second degree attempted robbery, New York Penal Law § 110/160[1]. Pursuant to 28 U.S.C. § 2254, he challenges his conviction by contending that: (1) a juror violated his Sixth and Fourteenth Amendment right to a fair trial and impartial jury by reading a newspaper article about the case; (2) the trial court violated his Sixth and Fourteenth Amendment right to a fair trial when it failed to give curative instructions to the entire jury after the jurors observed him in restraints as he was being transported to the court; (3) he received ineffective assistance of counsel; (4) the prosecution failed to prove his guilt beyond a reasonable doubt and his conviction was against the weight of the evidence; and (5) his sentence of twenty-five years to life is excessive. For the reasons set forth below, the petition is denied.

I. Summary of the Facts

a. Background

On May 26, 1999, at approximately 6:15 P.M., petitioner approached Keith DeGroot in the courtyard of a public housing complex at 77 Hill Street, Staten Island. (Trial Transcript ("Tr.") at 169-170, 187, 195, 197, 251-57.) Petitioner pointed a shotgun at DeGroot's side, grabbed DeGroot by the neck, and told him to empty his pockets. (Tr. at 173, 201-202, 205, 219-224, 238, 239, 256-257, 282-285, 299.) While petitioner held DeGroot, Ivan Copeland, petitioner's friend, approached the two and searched DeGroot's pockets. (Tr. at 175, 197, 214, 217, 239, 263, 265, 301-302.) There was no trial testimony showing that petitioner communicated with Copeland during the confrontation. As DeGroot tried to remove petitioner's hand from his neck, the shotgun fired, striking DeGroot in the abdomen. (Tr. at 175, 176, 223.) Petitioner fled with the shotgun into a nearby building, and Copeland fled elsewhere. (Tr. at 176-177.) DeGroot died at St. Vincent's Hospital from the shotgun wound. (Tr. at 433.) The police arrested petitioner on November 5, 1999, after he had been a fugitive for more than five months. Petitioner was indicted on two counts of murder in the second degree, three counts of attempted robbery in the first degree, and one count for attempted robbery in the second degree. (Respondent's Exhibits ("RE") at 1-3.)

Petitioner testified at trial and admitted that he had confronted DeGroot with a shotgun and asked him to empty his pockets, but claimed that he did so in order to expose DeGroot to the community as a drug dealer. According to petitioner, he had seen DeGroot selling drugs on the basketball court of the housing complex before the shooting. (Tr. at 465, 505-06, 534-37.) Upset by this, he confronted DeGroot about the drugs and asked him to stop dealing drugs in the neighborhood. (Tr. at 466, 473.) DeGroot refused, and allegedly told petitioner to "pack [his] shit and bounce," which petitioner understood to mean that DeGroot was ordering him to move out of the neighborhood. (Tr. at 466.) Petitioner claimed that the shotgun went off accidentally when DeGroot grabbed the shotgun and tried to take it. (Tr. at 467-68, 515-17, 540, 553.) Petitioner testified that he did not intend to rob DeGroot of property or drugs, nor did he intend to shoot, hurt, or kill DeGroot. (Tr. at 467, 515-16, 555, 560-62.)

b. Relevant Facts at Trial

i. The Alleged Juror Misconduct

On the first day of the trial, Wilson's attorney approached the trial judge to discuss an article about the case that a local newspaper had published over the weekend. (Tr. at 2.) He requested that the trial judge ask whether any of the jurors had read that article. (Id.) The judge asked the question, and one juror admitted to having read the article. (Tr. at 6.) The judge summoned that juror to the sidebar and asked him what he remembered about the article. (Tr. at 7.) The juror recalled that the article said that petitioner was "on the lam for six months, picked up for something in South Carolina. Another person involved in it." (Id.) The court then asked the juror why he had read the article, and he replied that he happened to come across the article while reading the local news. (Id.) Defense counsel asked the juror if he could be fair, and the juror answered that he could. (Tr. at 8.)Defense counsel repeated the question, asking the juror if he was "sure" he could be fair, and the juror replied "no problem." (Id.) Based on these answers, defense counsel consented to the juror remaining on the jury. The court instructed the juror not to discuss anything he read about the case with any of the other jurors. (Tr. at 11.)

ii. Alleged Juror Prejudice from Seeing Petitioner in Shackles

On the first day of trial, defense counsel informed the judge that petitioner believed several jurors had seen him in shackles as he was stepping out of the Department of Corrections vehicle in front of the courthouse. (Tr. at 3.) Concerned about possible juror prejudice, defense counsel requested that the court inquire whether any of the jurors had seen petitioner prior to the trial, and the court did. (Tr. 2-3.) In response, three jurors raised their hands. (Tr. at 8.) The trial judge and defense counsel separately asked each of these jurors what they had seen and how it might affect them as jurors. (Tr. 8-11.) The jurors assured the court that seeing petitioner in restraints as he was stepping out of the bus would not impact their deliberations. (Id.) The court then instructed each of the jurors not to discuss what they had seen. (Id.) In light of their responses and the judge's instructions, defense counsel had no objections to these three jurors remaining on the jury. (Tr. at 11.)

iii. Motion to Dismiss for Lack of Legally Sufficient Evidence

At the end of the prosecution's case, defense counsel moved to dismiss, claiming that the government had failed to establish a prima facie case by legally sufficient evidence as to each count of the indictment. (Tr. at 451.) The court denied the motion. (Id.)

iv. Verdict and Sentence

On September 6, 2001, the jury acquitted petitioner of intentional second degree murder and first degree manslaughter, but convicted him of felony second degree murder, second degree manslaughter, two counts of attempted first degree robbery, and attempted second degree robbery. At sentencing, the court determined petitioner to be a second violent felony offender for his 1993 conviction of attempted robbery in the first degree. The court sentenced petitioner to twenty-five years to life imprisonment on the murder count, seven-and-a-half to fifteen years for the second degree manslaughter, ten years for each count of attempted first degree robbery, and six years for attempted robbery in the second degree. The court ruled that the sentences were to run concurrently.

c. Procedural History

Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department. He raised largely the same arguments as those in his current petition. First, he contended that the court's decision to retain a juror who had read a newspaper article concerning the case violated his right to an impartial jury and fair trial. Second, he claimed that the court committed reversible error by failing to give curative instructions after three jurors saw him in shackles on the first morning of trial. Third, petitioner argued that his counsel rendered ineffective assistance by: (1) failing to object to the court's decision to retain the juror who had read the newspaper article; (2) failing to object to the court's decision to retain the three jurors who had viewed him in shackles; (3) failing to object to the indictment which exposed him to a repugnant verdict; and (4) failing to object during the prosecution's opening statement when it referred to petitioner as "Shaw." Fourth, petitioner argued that the prosecution failed to prove petitioner's guilt beyond a reasonable doubt and his conviction was against the weight of the evidence. Finally, petitioner urged the court to reduce his sentence under C.P.L. § 470.15[6][b].

The Appellate Division affirmed the conviction. People v. Wilson, 10 A.D.3d 460 (2d Dep't 2004). The Appellate Division found that petitioner's arguments that the government failed to prove its case beyond a reasonable doubt and the conviction was against the weight of the evidence were "unpreserved for appellate review." Id. at 461. The court further noted that "in any event," when the evidence was viewed in the light most favorable to the prosecution, "it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." Id. After reviewing the facts, the court was "satisfied that the verdict of guilt[y] was not against the weight of the evidence." Id. The Appellate Division also held that petitioner's sentence was not excessive. Id. On all of the other claims, the Appellate Division held that petitioner's contentions were "either unpreserved for appellate review or without merit." Id. at 461.

Petitioner applied to the New York State Court of Appeals ("Court of Appeals") for leave to appeal. In this application, he did not raise the excessive sentence claim, but repeated the other arguments presented to the Appellate Division. The Court of Appeals denied petitioner's application on October 27, 2004. Petitioner has not filed for a writ of ...


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