The opinion of the court was delivered by: Denise Cote, District Judge
Marcus Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 13, 2004, challenging his conviction following trial on charges of assault and criminal possession of a weapon. He is serving a sentence of twenty years' to life imprisonment. The petition was referred to the Honorable Kevin N. Fox for a report and recommendation, which was issued on December 24, 2008 ("Report"). Having considered Brown's objections to the Report, the petition is denied.
The evidence at trial, which began on January 18, 2001, showed that Brown shot Augustine Campuzano ("Campuzano") in the stomach in the early morning hours of September 24, 1999, during a confrontation on West 106th Street in Manhattan. Campuzano and Brown got into an argument about money Campuzano had just paid to another person to get drugs. This led to a brawl during which, among other things, Brown "sicced" his dog on Campuzano, Campuzano pulled out a knife or box-cutter, and Brown shot Campuzano with his revolver while standing about six feet away. Campuzano and Brown testified about these events at trial.
During the early morning hours of the following day, Brown shot a second man. Brown shot drug dealer Juan Carlos Martinez ("Martinez") in the groin while Martinez was fighting with Brown's common-law wife Karen Ryer ("Ryer") on West 107th Street in Manhattan. Martinez had been drinking heavily, and got into a fight with Ryer, a drug addict who wanted drugs from Martinez. Martinez's associate Marvin Valentin ("Valentin") joined the fray and kicked Ryer. Brown then shot Martinez. Three days later, while Martinez was in the hospital being treated for his injuries, Brown called Martinez, apologized for shooting him, and asked Martinez to tell his friends to stop looking for him. Martinez, Valentin, and Brown each testified about these events at trial.
On October 8, within weeks of the shootings, two police officers and an Assistant District Attorney ("ADA") interviewed Brown. After being advised of his Miranda rights, Brown admitted shooting Campuzano, explaining that Campuzano deserved to get shot since he had kicked Brown's dog and was holding a knife. He also admitted firing at Martinez to save Ryer.
Brown testified in his own defense by providing narrative testimony instead of responding to questions posed by his lawyer. Brown, who volunteered that he had been a criminal all of his life, said that he was opposed to shooting or hurting anyone and was not violent. He explained that Campuzano had pulled out a gun, that Brown's pitbull had clawed Campuzano's hand, and that Campuzano dropped the gun. Campuzano then displayed a knife and kept coming at Brown. Brown did not admit to shooting Campuzano.
Brown also explained that his statements to the ADA and police officers were involuntary since he was speaking to them off the record in an effort to avoid a life sentence and that he had an agreement with them that he would only get a couple of years. Despite objections by the prosecutor and instructions from the court, Brown insisted on adding improper comments. For instance, Brown told the jury that if it found him guilty on any charge he would go to jail for life. He added that the police originally were looking for a person who fit another description.
As for the events of September 25, Brown explained that Martinez and a man named Medina were big drug dealers who had shot people. Brown described the argument between Martinez and Ryer, during which Martinez punched Ryer and Valentin kicked her. Brown said the two men were beating her badly and that Ryer then shot Martinez. He volunteered again that he was facing life in prison for this charge and that everybody who had testified had lied.
Unable to get Brown to follow the court's instructions, the trial court interrupted Brown's testimony and had the jury leave the courtroom. The judge denied the motions by both the prosecutor and defense counsel to strike Brown's testimony. When the jury returned, the judge gave a curative instruction which, in essence, asked it to ignore statements that were appeals for mercy or otherwise irrelevant, and to consider Brown's testimony "to the extent it bears on the relevant facts of this case as to what happened on the two nights in question, as it bears on the statements that have been put into evidence in this case and as it may bear on this defendant's credibility."
During cross examination Brown explained that he did not know if Ryer was the person who had shot Martinez. He stated that he didn't shoot Martinez and he didn't know who did.
The judge's charge to the jury included a self-defense or justification charge for the indictment's attempted murder and assault charges, but not for its gun possession charge. In describing the justification defense, the trial court told the jury that it must review all of the evidence, and "figuratively put yourself in the shoes of the defendant and consider how the situation appeared to him." As for Brown's potential sentence, the judge instructed the jury that it should disregard Brown's comments as to what his punishment may be. The court added,
I instruct you further that his comments are in error and you may not assume the accuracy of any of what he said with regard to punishment, and indeed, only if and when this defendant would be found guilty would that issue be open for litigation, and I would have to make a determination and I would have to ...