The opinion of the court was delivered by: The Honorable William H. Pauley, U.S.D.J.
Pro se petitioner James Memminger seeks a writ of habeas corpus to challenge his 2001 conviction in New York State Supreme Court, Bronx County, on a single count of murder in the second degree. The court sentenced Memminger to an indeterminate prison term of twenty-five years to life. He is currently serving that sentence.
Memminger asserts three grounds in support of his application. First, he contends that the trial court denied him a fair trial by erroneously instructing the jurors on the meaning of reasonable doubt and by effectively shifting the burden of proof from the State. Second, he asserts that the judge improperly relinquished his judicial authority by delegating a court officer to ask a juror whether the juror had seen the petitioner in restraints. Third, he argues that the prosecutor violated his constitutional rights by not disclosing photographs of the sole eyewitness until after she was called to the stand and cross-examined.
Respondents of course oppose the petition. They argue that the first claim is procedurally barred in part and entirely meritless, that the second claim is groundless and that the third claim is also baseless.
For the reasons that follow, we recommend that the writ be denied and the petition dismissed.
Memminger's conviction stemmed from the stabbing death of a man named Charles Trail, who was the boyfriend of Memminger's former girlfriend Theresa Jack. The murder took place on April 3, 1998 in Ms. Jack's apartment in the Bronx. Six days later two City workers discovered the body of Trail, dumped on a street and covered with garbage. On April 12, 1998, the police arrested Memminger, who made a statement admitting that he had killed Trail but claiming that he had acted in self-defense.
A Bronx County grand jury returned a multi-count indictment against Memminger on May 6, 1998. It charged him with one count of first-degree murder, three counts of second-degree murder, a single count of first-degree manslaughter, two counts of first-degree kidnapping, one count of fourth-degree criminal possession of a weapon, two counts each of first-degree robbery and first-degree burglary, one count of fifth-degree criminal possession of stolen property, four counts of first-degree criminal contempt, one count of endangering the welfare of a child, two counts of second-degree criminal contempt and one count of second-degree burglary. (Affidavit of Ass't Dist. Att'y Susan E. Baumgartner, sworn to May 17, 2005, Ex. 2 at 3).
Petitioner moved before trial to suppress his statement to the police. The court (Hon. Lawrence Tonetti, S.C.J.) denied the motion. (Id. Ex. 2 at 3; H. Tr. 50-54).
The trial commenced on September 20, 2000 before Justice Tonetti and a jury. The principal witness for the State was Theresa Jack. In addition the State called Ms. Jack's niece, Tenaja Regina Middleton, and various police witnesses.
Ms. Jack testified that she had been romantically involved with Memminger off and on from 1992 until 1997, during which time they had a son, named Yusef. In 1997 she called the police to her apartment and subsequently obtained an order of protection against Memminger. (Tr. 269-70, 274, 301-02, 309-10, 389).
Ms. Jack later began a relationship with Mr. Trail, formerly the boyfriend of her niece, Ms. Middleton. (Tr. 311-24, 447-49, 457). Ms. Jack reported that on March 21, 1998 the petitioner had entered her apartment through a bedroom window, and on finding her and Mr. Trail in bed he had threatened to kill Trail and torn up Ms. Jack's order of protection. Trail promptly left the apartment. (Tr. 270-72, 275, 392-93, 396, 411). After both men departed, Ms. Jack called the police, and six days later Det. Kenneth Velasquez arrested Memminger. (Tr. 137, 154-55, 275, 396-97, 417-18). Petitioner was subsequently released, however, and on March 27, 1998 he again entered Ms. Jack's bedroom by the fire escape and a window, and again threatened Mr. Trail, who was once more with Ms. Jack. In the wake of this threat, both men left the apartment. (Tr. 275-76, 411-14).
On April 3 Memminger again appeared in Ms. Jack's bedroom, having entered Ms. Jack's apartment through a window in their son's bedroom. Finding Mr. Trail once again present, he stabbed him twice with a knife, killing him in the process. (Tr. 277-80, 336-38, 370-71, 373-74, 376-77, 412). He then turned on Ms. Jack, wounding her on her left palm and right shoulder. (Tr. 278-80, 385-88, 444-45). Under threat of being killed she followed Memminger's instructions, helping him to place the body in some plastic garbage bags, as Memminger attempted to clean up the blood in the room and cut off bloody pieces of the mattress. (Tr. 280, 282-85, 326-30, 354, 360, 424, 429).
Memminger then remained for several days in the apartment with Ms. Jack and their son, who was living there, and with the body of Mr. Trail. Eventually, he and Ms. Jack moved the body out of the apartment and onto the street. Unable to load it in a dumpster, petitioner left it on the sidewalk and covered it with garbage. (Tr. 284, 331-36, 341, 343-44, 385, 423). He also disposed of bloody portions of the mattress and bloody clothes and towels near the subway station. Memminger then traveled with Ms. Jack and their son to Queens to obtain money from his father. Memminger, Ms. Jack and their son later went to Memminger's mother's apartment in the Bronx. (Tr. 283, 285-86, 339, 347-48, 351, 352A, 360).
On April 9 two sanitation workers found Trail's body. (Tr. 120-21, 124-26, 217-23). A medical examination disclosed two deep stab wounds, one to the chest and one to the abdomen, both of which the examiner deemed to have been fatal. (Tr. 252-57). The body was then identified by fingerprints as Trail. (Tr. 138, 171). Det. Velasquez subsequently contacted Trail's sister, who identified Ms. Middleton as Trail's girlfriend. (Tr. 139-40). On questioning, Ms. Middleton reported that Trail had become Ms. Jack's girlfriend (Tr. 140), as did the sister of Ms. Jack. (Tr. 140-42). Det. Velasquez then went to Ms. Jack's apartment, found it unoccupied, and left his card. (Tr. 142-43, 168).
Learning from her sister that the police were looking for her, on April 12 Ms. Jack called the police and told them to "come pick me up." When the police picked her up, she told them what had occurred. (Tr. 286-87, 352-56, 360-63, 365-67, 376, 379; see also Tr. 144-45). At Ms. Jack's apartment the police found blood on a wall and evidence of Memminger's efforts to clean the bedroom and excise the bloody portions of the mattress. (Tr. 156-57,164,178-79, 187-89, 192-93, 196, 203).
Memminger was arrested the same day. (Tr. 286-87). Following his arrest, he made a statement in which he admitted killing Trail, but claimed that he had acted in self-defense. According to Memminger, he had been in bed with Ms. Jack when Trail entered the bedroom and attacked him with a knife, which he had then wrestled away from Trail and used to protect himself in the struggle. He further claimed that Ms. Jack had refused to call for medical help for Trail and had herself instructed Memminger to clean the room and place Trail's body in a bag. (Tr. 152-54).
Ms. Jack testified that after Memminger's arrest he had told her to change her story to conform to his version of events. When she refused, he threatened to blame her for the murder. (Tr. 287-89, 432-35). Ms. Middleton also testified to a post-arrest conversation with Memminger, in which he had offered a different account from his story to the police. Memminger claimed to Middleton that he had entered the apartment with a key and that Trail, who was inside, had attacked him, forcing him to pull out a knife and stab Trail. (Tr. 451-55).
The defense called only one witness, Melvin Jack, Ms. Jack's foster brother. He testified that Memminger had been staying with him before the murder, and that on April 1 Ms. Jack had called Memminger to ask him to bring her some money. He further testified that Memminger had then told him on April 2 that he was going to see Ms. Jack to bring her "money for the child." (Tr. 487-88).
The court submitted four counts to the jury -- first- and second-degree murder, first-degree manslaughter and first-degree burglary. (Tr. 562). On September 28, 2000 the jury convicted Memminger of second-degree murder. (Tr. 607-08).
The trial judge sentenced petitioner on March 1, 2001 to a term of twenty-five years to life. (S.Tr. 18).
Memminger pursued a direct appeal to the Appellate Division, First Department. On appeal he argued that the trial judge's jury instructions had improperly described reasonable doubt by adverting to the notion that a reasonable doubt is one that the other jurors, during deliberations, had a "right" to hear, assertedly a violation of the rule embodied in People v. Antommarchi, 80 N.Y.2d 247, 251-52, 590 N.Y.S.2d 33, 35-36 (1992). (See Baumgartner Aff. Ex. 1 at 25-31). He also criticized other portions of the charge as failing to give proper treatment to his justification defense and shifting the burden of proof when describing the criminal-intent requirement. (Id. Ex. 1 at 31-38). Apart from his attacks on the instructions, he claimed that the court had violated his right to judicial supervision of the jury trial when it let a court officer ask a juror whether he had seen Memminger in handcuffs. (Id. Ex. 1 at 38-41). Finally, petitioner complained that the prosecutor had denied him a fair trial by not producing police photographs of Ms. Jack's injuries until the defense attorney had completed his cross-examination of Ms. Jack. (Id. Ex. 1 at 41-46).*fn1
The Appellate Division affirmed the conviction on November 25, 2003. People v. Memminger, 1 A.D.3d 292, 768 N.Y.S.2d 6 (1st Dep't 2003). The panel noted that the trial judge should have used the standard charge on reasonable doubt but concluded that the charge, read as a whole, did not misstate the burden of proof or violate the rule of Antommarchi. As for Memminger's attack on the instructions regarding the justification defense and criminal intent, the court found these objections to be unpreserved, and it declined to review them in the interest of justice. It also observed, in the alternative, that if it had addressed the merits, it would have upheld the challenged aspects of the charge as "sufficiently balanced". Id. at 292, 768 N.Y.S.2d at 7.
On the question of delegation of judicial responsibilities, the court said that the record did not support Memminger's contention that the trial judge had "improperly delegated judicial authority." It noted that the record in its current state indicated that the court officer had questioned the juror in the presence of the judge and counsel, and in any event the inquiry was ministerial in nature. Id. at 292-93, 768 N.Y.S.2d at 7.
Finally, the court found that the trial judge had acted within his discretion in allowing the prosecution to offer testimony about the photographs of Ms. Jack's injuries and in refusing to grant a mistrial. According to the court, although the prosecutor's disclosure of the photos was untimely under state discovery rules, that error had resulted only in some cross-examination by the defense that was "superfluous" but not prejudicial, especially in light of an explanatory jury instruction. Id. at 293, 768 N.Y.S.2d at 7-8.
Petitioner next sought leave to appeal to the New York Court of Appeals. In doing so, he raised only two issues -- the asserted violation of the Antommarchi rule in the jury instruction on reasonable doubt and the asserted improper delegation of judicial authority. (Baumgartner Aff. Exs. 5, 7). The Court of Appeals denied the application on February 13, 2004. People v. Memminger, 1 N.Y.3d 631, 777 N.Y.S.2d 29 (2004).
Having been rebuffed by the state courts, Memminger finally turned to this court, filing a petition that is dated November 22, 2004. In that petition he asserts all of the claims ...