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Scott v. Fisher

September 10, 2009


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge


I. Introduction

Pro se petitioner Matthew Scott ("Scott" or "petitioner") has filed a petition for a writ of habeas corpus challenging his conviction following a jury trial in Monroe County Court on charges of (felony) murder in the second degree, as an accomplice (N.Y. Penal Law §§ 20.00, 125.25(3)), and two counts of attempted robbery in the first degree (N.Y. Penal Law §§ 20.00, 110.00, 160.15(1), (2)), as an accomplice. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. Overview

The conviction here at issue stems from the fatal shooting on October 17, 1994, of sixteen-year-old George Johnson (a/k/a "Pookie" and "Poochie"), who, with Scott's permission, was using Scott's apartment on Hudson Avenue as a "headquarters" for his (Pookie's) drug-dealing operation. The shooting occurred at Scott's apartment while several other individuals were there playing cards and watching Monday night football. Some of these visitors, one of whom testified as an eyewitness at trial, were also using crack-cocaine they had purchased from Pookie that evening.

When Scott was questioned by police on the night of the shooting, he denied any involvement in or knowledge of the attempted robbery or the shooting. Glaston Gaines, who had a severe crack addiction as well as a lengthy history of drug-related convictions, was identified by several of the eyewitnesses as the shooter. On the basis of these identifications, the police picked up Gaines at a homeless shelter and arrested him. According to Gaines' statementgiven while in police custody, Scott had recruited him to take part in robbing Pookie of the proceeds from his drug enterprise. Gaines also told the police that Scott had provided him with the weapon used to shoot Pookie.*fn1 Gaines was convicted of murder in the second degree in a separate trial, and the judgment of conviction was affirmed by this the Appellate Division, Fourth Department of New York State Supreme Court. People v. Gaines, 258 A.D.2d 921, 687 N.Y.S.2d 920. After Gaines told police that defendant had solicited him to rob the victim, petitioner was questioned and made a statement to police indicating that he had solicited Gaines to rob the victim.

B. Co-Defendant Gaines' Statement to Police

Gaines' statement to police, given on October 25, 1994 (eight days after the incident), is set forth below:

My name is Glaston Gaines, I am 23 years old and have been staying at the Open Door Mission on Main St. I am currently homeless. About a week ago I was on Hudson Ave. I was at a house on Hudson across from Mark St. I had gotten high there before and I knew the man that lived there. I call him M [i.e., Matthew Scott]. I can't remember his real name. He is a tall dark skinned black guy and he lives upstairs in the back. I remember that I was pretty fucked up that night. I hadn't slept in two days. I had been smoking cocaine. While I was in front of M's house, M came outside and started talking with me. M asked me if I wanted to make some money. I said yeah! I asked him how? He said that there was a kid up in the house with a 2 G package. That means the kid had $2000.00 worth of money and drugs on him. I asked M if he had a tool because I didn't have one. He told me to hold on. M went back through the cut but I couldn't see if he went into the house or kept on going toward Weeger St. M came back about an hour later and handed me a black .380 semiautomatic gun. I don't know what kind it was. M just gave me the gun and told me to take the kid into the bathroom and do it. After that M went back into the house. I waited about fifteen minutes and went into M [sic] house. I bought a couple of sacks from a young kid inside. There was about 8 people inside and they were calling this kid Pookie. The only people in there that I knew were M and a kid whose brother went to school with me a long time ago. His name was Donald but this was Donald's brother and I couldn't remember his name. I just hung out getting high in M's house for a while.

After awhile, my friend Gillet [i.e., Anthony Latson] came to the door and knocked. M answered the door and let Gillet in. Gillet came in and walked up to me and told me not to do it. I don't know how he knew what I was going to do but he just kept saying, don't do it kid! don't do it. I just said to Gillet, don't worry, I'll see you outside! Gillet kept saying don't do it kid, but I had the gun in my dark blue hoodie and I just took it out and pointed at the kid they called Pookie. I told the kid to break himself! That meant to give me the money. Then all of a sudden the gun started going off. It went off about four or five times. I do no remember shooting the kid, I just remember the gun going off. After that I turned around and went downstairs and went over the fence. I dropped the gun by the fence, climbed the fence and ran through some streets to Upper Falls, frome [sic] there I ran over to Bay St then Niagara. Since then I have been staying at different houses across the city.

I have read this statement and it is true. I wanted to add that I was wearing a black and white bandanna and that came off in the back yard. Also the police told me tonight that the due that got shot was found outside. I don't know how he got outside and also I don't know how the window got broke [sic]. I didn't see anybody go through it.

Respondent's Appendix of Exhibits Submitted with Respondent's Answer to the Habeas Petition ("Resp't Ex.") H at 69-70. Based upon Gaines' statement inculpating Scott,*fn2 the police brought Scott in for further questioning. At first, Scott maintained his innocence. Some time later, however, after being told that Gaines had fingered him, Scott gave a statement to the police. Scott related that he had first approached a man named Anthony Latson ("Latson", a/k/a "Gillet", "Gillette," or "Gillie"), about robbing Pookie. Latson declined, so Scott asked Gaines, who agreed to do the job.

C. Petitioner's Second Statement to Police

As noted above, Scott's first statement to the police, given on October 18, 1994, denied any involvement in the shooting. His second statement, given after Gaines' was arrested, is set forth below:

On Monday October 17th, 1994, I was at my apartment playing cards, drinking beer and smoking cocaine with Jerry Durnham, Red or Larry, Pookie, Tim Henry, Willie[,] whose last name I do not know, Clevelnad [sic] or Bubba, Annette and Glass [Gaines]. Pookie was a young sixteen year old who was selling cocaine at my house. He was selling cocaine at my house for about three days. Pookie would give me six five dollar bags of cocaine. About and [sic] hour before Pookie got shot at my apartment Gillie [Latson] came over with a person I do not know. I spoke with Gillie at the top of my stairs leeding [sic] into my apartment. I started talking with Gillie about Pookie having a few bags of cocaine and I asked Gillie if he wanted to rip him off. Gillie told me that he didn't want anything to do with that. Gillie did not come in but left down the stairs. About ten minutes after Gillie left I saw Glass standing by my bedroom door. I walked up to him and told him that Pookie who I also referred to as the kid had about a grand or more on him. I asked Glass if he wanted to rip the kid off. Glass nodded his head. I told him that he should tell the kid that he wanted to buy a couple of sacks. To take him into the bathroom or the livingroom because there were a lot of people in the kitchen. That we would split what ever [sic] Glass got. I told Glass that he should get the kids [sic] attention when I got up from my chair and start walking towards my bedroom. I walked away from Glass and sat down at the table and continue playing spades. My partner was Jerry and Pookie's partner was Red. Pookie was sitting at the table with his back towards the kitchen counter. I was seated to Pookie's right. Jerry was near the door to my apartment and Red was seated to my right.

About five minutes before the shooting there was a knock at my door. I asked who was at the door and the person answered that it was Gillie [i.e., Latson]. I opened the door and saw Gillie. Gillies [sic] friend who was with him earlier was about half way up the steps. Gillie asked me where the guy was with the blue hoodie and a blue and white bandanna. I pointed towards my bedroom. Gillie walked in and walked up to Glass and said something to him. I did not hear what was said. I sat back down at the table. After Gillie was done talking with Glass and [sic] walked out the door. About two or three minutes later I got up and started walking towards my bedroom. This was the signal for the robbery to go down. I had just walked past [P]ookie when I saw Glass grab [P]ookie around the neck and I started hearing shooting. I first heard one shot followed by a second shot, then three more. At the first shot I hit the floor in my bedroom. At the second shot I started shaking then while the last three shots went off I heard people moving around. I heard glass break. Then it was quiet. I got up off the floor and peeked out my door. I thought I would see the kid lying on the floor, but he was not there. As I was comming [sic] out of my bedroom I was met by Jerry. Jerry said he was looking for the kid. I saw blood on the wall by the stove, [b]lood on the floor by the garbage can. Willie and Tim left my apartment followed by Cleveland and Annette were [sic] in the bathroom. I then went outside and saw Pookie lying on the sidewalk two doors down from my apartment on the same side and towards Clifford Ave. I saw the kid still alive because I could see him shaking. I did not get closer than eight feet. I saw the ambulance pulling up and I walked back to my apartment. While walking back I saw [b]lood on Thelma Green's rear steps and saw that my window was broken. I went back upstairs to the broken window and saw that there was blood on the window sill. I asked Jerry who broke the window and he told me that the kid jumped out the window breaking the glass.

I was taken down to the police station and I talked to Investigator Sheridan. I told him a story and was not truthful because I was scared. Nothing like this was supposed to happen. I did not meen [sic] for the kid to get shot. I did not give Glass the gun and I do not know where he got it. I will do all I can to help get the gun. I swear to [G]od that this is the truth. At no time was I forced by Investigator Schultz or Sheridan to say this, and it is the truth.

Investigator Sheridan had asked me earlier durring [sic] this interview about me knowing if Glass had a gun. I told him that while [m]e [sic], Tim, Red and Pookie were playing cards Glass had asked us all if anyone wanted to purchase a gun. I asked him what kind and Glass told us that it was a .380. No one wanted to buy it. Resp't Ex. H at 72-73.

D. The Suppression Hearing

On February 23, 1995, a suppression hearing was held in Monroe County Court (Maloy, J.) to determine the admissibility of Scott's inculpatory statement to the police. Investigators Sheridan and Schultz testified, as did Scott himself.

1. Investigators Sheridan and Schultz

Sheridan testified that he met with suspect Gaines on October 25, 1994. H.4.*fn3 Gaines had become a suspect after several eyewitnesses identified him in photographic arrays. H.5. Sheridan previously had contact with petitioner on the night of the homicide, when petitioner had provided a two-page statement. Sergeant Givens took a second statement from petitioner on October 18, 1994. H.7-8. Sheridan spoke with Latson (Gillie or Gillet) on October 27, 1994. H.9. After obtaining a statement from Latson, Sheridan then spoke again to petitioner on October 27, 1994. H.9.

At about 3:45 p.m. on the 27th, Sheridan and his partner, Schultz, encountered petitioner standing on his lawn in front of his house on Hudson Avenue. H.11. Petitioner agreed to accompany them to the Public Safety Building; he was not placed in handcuffs. H.11. He first was placed in the Physical Crimes office, a room about 15 by 25 feet, with seven desks for the officers and investigators who work there. H.11. They arrived at 4 p.m. and Sheridan advised petitioner that he was not under arrest, but he was going to advise petitioner of his Miranda warnings, and petitioner agreed to waive his rights, responding "yeah" to each question. H.12-15, 35-36. Sheridan and Schultz stayed with petitioner in that office for about 30 minutes. H.12. Petitioner indicated that he had graduated from highschool in South Carolina and could read and write English "fine." H.15, 39-40. Sheridan observed that petitioner was "alert, conscious" and had "no difficulty fielding questions, responding in a normal manner." H.16. He did not appear to be injured or ill, and did not make any complaints or request medical attention. H.16. He made no comments to suggest that he had used any drugs or intoxicating substances that day. Finally, he did not appear to be under the influence of alcohol or drugs. H.16-17.

Sheridan said that he had no difficulty understanding petitioner, and petitioner did not express any difficulty in understanding him. Sheridan denied promising petitioner anything or threatening him in any way. Petitioner was not handcuffed, and did not assert any of his rights under Miranda during the interview. H.17. That is, petitioner did not ask for a lawyer; nor did he decide to stop speaking with the police investigators. H.18.

After about 30 minutes, they moved down the hall to an interview room, about 10 by 12 feet. It has one door, overhead lighting, and a picnic bench bolted to the floor with a couple of benches also bolted to the floor. H.18. There is a large window with metal grating over it. Petitioner was not handcuffed, and neither investigator had his gun with him during the interview. H.19.

The investigators and petitioner remained in the interview room for a "[c]ouple hours."

H.19. They discussed with petitioner that they had talked to quite a few other people since last speaking with him, including the person responsible for the shooting, and "their versions as to exactly his involvement were quite different than what he initially had stated, and [they] questioned him as to exactly his involvement in the shooting death of George Johnson." H.19.

"[F]or a period of time," Sheridan stated, petitioner "maintained that the original statement that he had given . . . on the night of the shooting was correct, but there did come a point in time in which he admitted that he didn't tell . . . the truth, that he gave [them] different versions." H.20. Schultz indicated that they "mentioned to him that [they] had the other information," and that is when petitioner "started to change his version" to something different from what he had given to Sheridan initially. H.79. Specifically, petitioner said that while at his apartment Gaines/Glass and Latson/Gillet "discussed with him that they were going to rob the victim and that he had given his okay but that he wanted a cut of the robbery." H.21. This was at about 4:50 p.m. Thus, the first change was Scott saying that Gaines and Latson discussed the robbery, and he said he wanted a cut. The investigators asked him to "expound on it" and eventually told him that they still did not believe him. H.49. He then made a second change, which was that he went to Latson and Gaines and asked if they would rob Johnson (a/k/a Poochie or Pookie).

Petitioner "later changed that version to the fact that he had approached Gillet and Glaston and had told them that the victim was carrying a large sum of money and that he wanted -- he wanted them to rob -- rob the victim." H.21, 80. Petitioner said that this was about 30 minutes later, at 5:20 p.m. H.21.

Sheridan continued questioning petitioner, because they "didn't feel that he was being completely truthful . . . and [they] kept up that line of questioning until; there came a time in which [they] took a statement from him," H.22. Sheridan admitted that throughout the interview, they told petitioner "several" times that they did not believe him, that they thought he was lying.

H.41-42, 47-48. At 5:35 p.m., they confronted petitioner with the written statement Gaines/Glass had given to the investigators. H.22. The interview continued for about another hour and a half.

H.23. Sheridan and Schultz testified that Scott changed his story before reading Gaines' statement. H.48, 79.

At about 6:30 p.m., they took a 15 minute break. When the investigators returned, petitioner was allowed to use the restroom, and they reconvened in the physical crimes office to type up petitioner's statement. H.24-25. The typing process took until 7:52 p.m. and was done by Investigator Schultz.

After the statement was completed, it was given to petitioner to read out loud. H.26. He made some minor corrections to typographical errors, and put his initials next to the corrections.

H.28, 83-85. Investigator Schultz then read the statement aloud. H.26-27. Petitioner signed the statement at 8:13 p.m. and went to use the restroom. H.29. When he returned, about four more lines were added to the statement; that was completed shortly after 9 p.m. Scott read it aloud.

H.29-30. Petitioner was booked at 9:25 p.m.

On cross-examination, Sheridan admitted that when they approached petitioner on October 27th, they did not tell him that his status had changed in their minds from witness to suspect. H.33. Sheridan felt that there was no need for them to do so. H.33. Sheridan knew that Scott had no prior criminal arrest record. H.40.

According to Sheridan, they only moved the interview out of the physical crimes office into the smaller interview room because several officers had come into the office and it was "a little disruptive" in there. H.43, 81.

Sheridan's partner, Schultz, testified consistently with Sheridan's testimony. See H.57-88.

2. Petitioner's Suppression Hearing Testimony

Scott agreed that he voluntarily spoke to Investigators Sheridan and Schultz on the afternoon of October 27, 1994. H.89-90. He also stated that he had been using drugs, "[a]bout a hundred dollars or more" of cocaine, before the investigators arrived at his house that afternoon.

H.90. That was "[p]robably a little more than a sixteenth" of "an 8-ball," which is an eighth of an ounce. H.91. Scott said that he was "really high." H.91. Petitioner said that as far as the Miranda warnings, they only told him that he had the right to remain silent and that anything he said would be used against him in a court of law. H.92. He denied that they told him that he was entitled to an attorney free of cost. H.93. Petitioner stated that they did not ask him about his education or his ability to read or write while they were still in the first room. H.93-94. Scott testified that after he told the police his version of events, they told him that he "was lying" and "wasn't telling them the truth." H.94, 96-97. According to Scott, the investigators told him he was lying "[f]our, five, maybe six times." H.95. After the last time they told him he was lying, they brought him to the smaller interview room. Id.

Then, the officers "went and got a statement of Gaston [i.e., Gaines] or somebody and put it -- set it in front of [him] and told [him] read this, this is what they have against [him]." H.97. Scott said that he was "pretty much" able to read the statement, but "[s]ome of the things [he] couldn't understand, you know?" H.97. Petitioner said that his "reading is not all that great" and his spelling is "[l]ousy." H.97.

According to petitioner, Investigators Sheridan and Schultz told him, "[M]y ass would be grass if I don't tell them the truth." H.98. This was after they had shown him Gaines' statement.

H.98-99. Petitioner said that he "didn't know how to take that" but he knew "it's some kind of a threat or something." H.99. Petitioner explained that he was "still high and it was kind of scary," and that he had not made any admissions to them up until that point in time. H.99-100.

Scott testified that while Investigator Schultz was typing, Scott was actually giving the same statement he had given during his prior interviews, not an inculpatory version of events.

H.101. Scott stated that after Investigator Schultz was done typing, he read the statement out loud, then he and Sheridan signed it, and they told petitioner that if he signed it, they would let him go. H.102. Petitioner testified that he "sort of" believed them. Id. He explained that he signed it even though it was not the truth because they said, "If you don't sign this statement, we'll put you away for a long time." H.102. Defense counsel then went through all of the handwritten, initialed corrections to typographical errors in the statement. Petitioner denied making any of the corrections, asserting that he did not know what he was initialing. H.103-04.

On cross-examination, petitioner admitted that in his first statement, he signed it to indicate that it was true and accurate. H.106. The same was true that of his second deposition to police when he was shown a photo array. H.107. Petitioner admitted that he understood what he was signing when he signed those documents, and that it was not a problem for him. H.107.

The prosecutor questioned Scott about his previous employment as a truck driver in New York state. Scott admitted that he had completed both a written course and a road test, and he also had a regular driver's license. Scott had worked for the truck driving company for four or five years as a delivery-person. He admitted that he had to check the invoices on what customers were returning for crediting their accounts and was able to do that. H.109-110. He admitted that reading and writing is "not [a] real bad" problem for him. H.110. The prosecutor also questioned Scott about his divorce proceedings on July 21, 1994, just shortly before the shooting. H.110. Scott admitted that he had been able to fill out the paperwork in order to apply for public assistance. H.111. He stated that he was "all right" at mathematics.

With regard to the amount of cocaine he had been smoking before the interview with the police, Scott stated that the hundred-dollars-worth was not the total amount he consumed; it was shared among him and his three friends, so he had a one-quarter of the total amount. H.112-13.

So, he had had about $25-worth of crack cocaine on the afternoon of October 27th.

With regard to his alcohol use prior to speaking to the police, Scott testified that he had been drinking "four, five 40-ounces [sic]." H.113. He said that he was "highly intoxicated."

H.114. However, he admitted that he specifically remembered what he told the investigators during the interview of the events of that afternoon and evening. H.115-18. He recognized what was true and allegedly not true in the statement typed by Schultz, and understood that the purportedly prepared statement "had [him] admitting to being a part of a murder[.]" H.118-19. He said that he understood all that, despite having over 200 ounces of alcohol and a sixteenth of an eighth of an ounce of cocaine. H.119. Scott said, "it might have had an effect on [him]" but he "just didn't pay it no attention . . . ." He "was high" and they told him they were "going to let [him] go." H.119. Petitioner was forced to agree that the alcohol and the cocaine really had "[n]ot much" of an effect on him. H.119-20. Scott then claimed that when he read the statement prepared for his signature by Schultz, he actually thought that he was reading Gaines' statement," because Gaines' statement and his statement "sound the same.". H.121-22. He stated that the statement did not sound like an admission to murder to him. H.122. He did agree that the part added to the end of his statement, regarding Gaines having a gun that he was trying to sell, was true. H.123.

3. Oral Argument and The Suppression Court's Ruling

Defense counsel argued that the investigators had committed several acts which cast doubt on their credibility. In particular, counsel pointed to their having taken petitioner to the smaller interview room and argued that it was "to make him feel insecure and frightened and they didn't want to be overheard . . . ." H.126. Counsel stated that they "wanted to just advise him of a couple of his rights to perhaps make him secure and not advise him of the rest of his rights and nobody would know the difference." H.126-27. Finally, counsel claimed that it was "incredible" for the investigators to testify that petitioner pointed out and corrected spelling errors in the statement he signed. H.127. Counsel argued that "he could no more know how to spell some of those words than somebody who probably grew up in the same environment he did." H.127.*fn4

The prosecutor pointed out that based on the move from one room to another, defense counsel had concluded that the police were "A, not advising the defendant that they hope to pin a murder on fully of his Miranda rights; B, hoping to avoid witnesses to those efforts; and C, apparently conspiring between themselves to get Matthew Scott for the act of soliciting and separating -- or supporting and plotting the murder two days after they have obtained a full and complete confession from the trigger man who shot the victim." H.129-30. The prosecutor also argued that Scott's testimony that despite the fact that the investigators did not believe him, that he signed the statement "without knowing what it was at all under the mistaken believe that he would be allowed to go home by two investigators who have kept him for hours in this coke- and alcohol-induced drug haze where he is totally confused and yet clear on all the details of the entire night." H.132.

The suppression court made the following findings of fact and conclusions of law: Investigators Sheridan and Schultz . . . stopped Matthew Scott, who was next door or near his home, asked him to come down to the Public Safety Building to answer questions at which point he came voluntarily and when he arrived at the Public Safety Building, they had read him his rights . . . . He waived his rights and discussed the case. He had previously given a deposition to the officers. Eventually, he made admissions which were reduced to writing, . . . . He read the exhibit, whether to himself or out loud. It was read out loud by Officer -- Investigator Schultz and then he [petitioner] signed the statement.

The Court find [sic] that his rights having been read, the statement is admissible as a voluntary statement, to be admissible at trial.


E. Petitioner's Jury Trial

The indictment charged Gaines and petitioner with second degree (felony) murder, and attempted robbery under two theories--attempted robbery in the first degree with serious physical injury (N.Y. Penal Law §§ 110.00, 160.15(1)), and attempted robbery in the first degree with use of a deadly weapon (N.Y. Penal Law §§ 110.00, 160.15(3)). Scott was charged as an accessory under N.Y. Penal Law § 20.00. Scott and Gaines were tried separately, with Gaines' trial proceeding first. As noted above, Gaines was convicted, and the judgment was upheld on direct appeal.

1. The Prosecution's Case-in-Chief

The state's case-in-chief rested primarily on Scott's confession and the testimony of the four eyewitnesses--Annette Willis ("Annette"), Cleveland Willis ("Cleveland"), Jerry Dunham ("Dunham"), and Tim Henry ("Henry").

a. The Eyewitnesses

Dunham, aged 46 at the time of trial, was Scott's roommate at 505 Hudson Avenue.

T.382.*fn5 They had met "[b]y chance" in the winter of 1993. Tim Henry was a very good friend of Scott's; he had known him for three or four years. T.366.

When Dunham arrived home from work on October 17th between 5 p.m. and 5:30 p.m., he took a nap for a "couple of hours." When he awoke, Scott was there. Other people started arriving later on: "Tim, Willie, Bubba [i.e., Willis], fellow named Red, Annette, the kid named Poochie, the fellow that did the shooting and another guy that they came in together." T.386. It was essentially a party atmosphere: "They were playing cards, drinking, smoking cocaine" that night. T.387. The victim, Poochie, was selling drugs. Dunham had met Poochie the week before when Poochie had come over to his and Scott's apartment. T.387. Dunham had not seen the shooter (i.e., Gaines) before that night. Henry related that Poochie had come by earlier and asked petiitoner "could he sell out [of] his house; and Matt said yes, for a cut, for a fee, not a problem."


Dunham admitted that he had used drugs before he took his nap but did not use any drugs after that. T.388. The other people using drugs that night were getting the crack cocaine from Poochie. Some of the partygoers were in the living room watching Monday night football.

T.389. Dunham was playing cards in the kitchen with Scott, Poochie and Red (i.e., Larry Sproule). Dunham and Henry indicated that Gaines and "the other fellow" first came by at around 9:30 p.m. T.353-54. They bought some cocaine, smoked it, and then left (the other fellow first, followed by Gaines). About twenty minutes to half-an-hour later, Gaines returned by himself. T.391.

Tim Henry had gotten there around seven; he stayed for an hour and left, returning at about nine; by that time there were more people there. T.352. Henry knew Gaines from seeing him around. T.352. Henry testified that at one point, he went into the bathroom, turned on the light, and he could see Gaines in the mirror behind him. T.355. Gaines was just standing there, "thinking." Henry used the bathroom and as he was leaving he said, "You want me to cut out the light?" Gaines said, "Sure, cut it out," and Henry went back to his card game, leaving Gaines in the dark in the bathroom. T.355.

Willis (a/k/a Bubba), another visitor at Scott's that night, had known Scott through friends and from around the neighborhood for about two years. T.257. His wife, Annette McKinney Willis ("Annette"), knew Scott for about three and a half years; she used to go to his apartment to get high. T.298. The day before the shooting, Scott was standing outside his apartment and called out to her that he had someone up in his apartment selling cocaine. T.319. Annette had bought cocaine at Scott's on numerous occasions on the day before and the day of the shooting. T.322.

On the night of the incident, Willis and Annette had gone over to Scott's apartment separately. They stayed for about two hours, went home, where they "probably argued," and returned later to petitioner's apartment. T.258-61, 299-302. While Willis went across to buy something at the convenience store, Annette went upstairs to Scott's apartment. T.325. As she was on her way to Scotts apartment, Annette saw two people on a porch two houses away looking at her. T.325-26. She made eye-contact with the men. One of the men was Gillett or Gille, whom she had often seen around the neighborhood; the other one she had seen one time prior. T.327-28, 329. She would see them both again at Scott's apartment later.

Once upstairs, Annette bought some cocaine from a "young guy" named "Tootie" or "something to that effect." T.263. "Tootie" had been there all evening selling drugs. Id.

While Annette was standing in the kitchen cooking up the cocaine, Gaines came out of the bathroom with a hood over his head. Willis asked Gaines, who was standing behind Annette, not to stand to close to her, because Gaines was being "skittish" and "nervous". According to Willis, Gaines was "more or less trying to hide his face" and was "standing in the corners" and "hiding in chairs." T.265, 266, 283. Neither Annette nor Willis had never seen Gaines before that night.

T.283, 305.

Later on, two black males "came to the door, knocked and asked to talk to Matt and then they went and talked to the shooter after that." T.395. Dunham, who had been playing cards at the kitchen table with Scott, Poochie and Red, answered the door and told Scott that the men wanted to talk to him. Scott walked outside the apartment into the hallway and talked to them for "about thirty seconds." T.395. The three of them came back inside. The black males, whom Dunham did not know, "went through the bedroom [i.e., Scott's bedroom, off the kitchen] to talk to the shooter." T.396. Dunham could not hear their conversation, which lasted for about a minute. T.397. Dunham said that there was no arguing or fighting or anything like that. When the two men came out, they said, "'Let's go. Don't do it.'" T.397. That remark was made to the shooter (Gaines), who was standing in the doorway of the bedroom. T.397. The two men then went towards the entry door of the apartment and "[t]hat's when [Dunham] heard the click and that's when the shooter grabbed the kid by the head" and "[g]ot him in a headlock." T.398. Poochie had his back to the shooter, who came from the doorway of the bedroom, "grabbed [Poochie], put him in a headlock, put the gun up to his head." T.399-400. The shooter said, "Get back," and Dunham heard the first shot go off. T.400-01. Dunham related that there were "at least four shots." Two were fired rapidly, followed by a pause, and then two more. T.402. The shooter backed up through the living room to the entry door and left.*fn6

Annette said the shooting occurred while she was still cooking her drugs in the kitchen.

T.307. There was a knock at the door; Scott, who was sitting down playing cards, got up to answer the door. There were two black males, one of whom Annette knew from the neighborhood and the other whom she had seen about twice. T.308. (She had seen these men on as she was coming up to Scott's apartment; they were sitting on a porch about two houses down.). Petitioner went and stood out in the hallway for a mintue or two. 307-08. Petitioner then re-entered the apartment with the two men. T.335. Annette stated that petitioner did not sit back down again to finish playing cards; "[i]t was more or less like he was getting out of the way, moving around." T.335. Willis related that one of the men stood at the door and the other walked up to the shooter who was standing near the kitchen counter almost in the living room, and asked him, "What you [sic] gonna do, man? What you gonna do?" T.309, 335 ("What's up man? You gonna do it or what."). The man "nudged" the shooter, and Annette "thought there was going to be a problem . . . ." T.309, 339. The shooter said, "'Hold on a minute,' and about two seconds later he ran up to the victim, who was seated at the table with his back to the counter, and grabbed him behind his neck." T.309-10, 311, 314. The shooter pulled the victim "out of the chair and before he could say 'Give up the drugs,' he had shot him." T.310. According to Annette, as the shooting was happening, petitioner "was on his way going out the door, and the guy, he just -- everybody, they just scattered." T.310. Annette conceded that she had not told the police that detail in her statement given immediately after the incident.

Willis described the shooting as follows: "There was a knock at the door and Matthew opened the door and the guy came in and stepped to the shooter . . . and asked him, 'What's up?'" After Scott answered the door to let "the guy" in, Willis did not see Scott any more. T.293.

The "guy" Willis referred to was Latson (a/k/a Gillet or Gillie), whom Willis had seen around the neighborhood. T.289. Willis never saw petitioner with a gun that night. T.274. In any event, after Latson asked the shooter, "at that time the shooter stepped past [Willis] and grabbed the kid, Tootie, in a choke hold and threw a gun to his head and said, 'Give up the drugs,' and fired" before the vicitim could do anything. T.267-69, 291-92. Willis heard about five shots. T.294. Willis, Annette and Tim Henry all ran for cover in the bathroom. T.270. Duhman eventually knocked on the door and told them that they could come out. T.315. Annette testified that Scott was coming up the stairs at that point. T.3178. Annette and Willis stayed in the apartment for a few minutes; she wanted to find her "stuff" but she could not, so they left. T.317.

Henry described the shooting as follows: "Two guys came to buy drugs. Matt called the young kid who was selling the drugs . . . . The kid came in the kitchen, sat down. I was playing cards. He pulled out the dope, put it on the table. The guys who came in the house, who Matt had called in the house to buy the drugs, they looked at it. Glaston, who was in the bathroom at the time that I cut the lights on, not even 20 minutes later -- before, comes, out grabs the kid in a headlock and shoots him. T.358. Because he was playing cards, Hendry did not know if the two men talked to Gaines first. T.358-59. Gaines came out of the bathroom and approached the victim from behind; before he grabbed him, he said, "What's up?" And the victim said, "what's up?" Gaines then grabbed the kid in a headlock and pulled a gun from the small of his back and fired. T.359.

Once the shooting stopped, Dunham then looked for Poochie in the apartment, trying to find out if he was okay. He did not find Poochie, but did see that one living-room window was broken. Dunham found Scott in his bedroom. He then found Annette and Willis in the bathroom, and Tim in his (Dunham's) bedroom. Dunham told them to stay, but they did not. T.271-72. Dunham said that Scott left for a few minutes; when he returned he said that Poochie was lying outside on the sidewalk. T.407. Dunham recalled that Scott started "sweeping the floor[,]" "[c]leaning up the kitchen . . . ." T.408. Dunham told Scott "to leave everything alone, it would be evidence." T.408. Scott did not reply, and did not stop sweeping until a while later. T.409.

Dunham went down to the police station and gave a statement. Later that day (October 18th), two officers came back to the apartment and showed Dunham and Scott a photo array, separately. Dunham identified Gaines as the shooter from a photo array. T.412.

Dunham testified that at one point before the shooting, Gaines"offered[,] did anybody want to buy a .380 handgun." T.392, 437. Nobody in the apartment expressed any interest in purchasing the gun. T.392. According to Dunham, Gaines did not display the gun to anyone.

T.392. Gaines then went into the kitchen to smoke. T.393.

b. The Medical and Physical Evidence

The county medical examiner testified that there were two bullet wounds on the victim. One was a perforating wound to the face, entering just below the cheekbone on the left side of the face and exiting above the lip on the right side of the face. T.539. This was a relatively superficial injury. T.544. The second wound was not perforating, meaning that the bullet did not go through the body; it entered at the lower left back of the victim and had come to rest under the skin on the front of the chest. T.539-40. The bullet had struck the heart, perforating the right ventricle, and was the cause of death. T.543.

Defense counsel objected when, during his direct case, the prosecutor began to question Investigator Sheridan about the process of gathering a written statement from a witness, in particular, Gaines. T.568-69. Defense counsel argued that "this trial is not about the admissibility of the statement relating to Glaston Gaines. . . ." T.569. The prosecutor argued that it was relevant to the issue of "how these interviews [with the police] took place and how they were conducted." Id. The trial court sustained defense counsel's objection. Id. Investigator Sheridan testified that after speaking with Gaines and Latson, they re-interviewed Scott. T.572.

c. The Police Witnesses

Investigators Sheridan and Schultz testified essentially consistently with their testimony from the Huntley hearing regarding their investigation of the Poochie homicide, their questioning of Scott and Scott's provision of two statements to the police about what had transpired on the night of the shooting.

2. The Defense Case

The defense's only witness was Gaines who, through his attorney, took the stand and asserted his Fifth Amendment privilege against self-incrimination. T.745-48. Accordingly, in line with its earlier rulings, the trial court informed the jury that Gaines was unavailable to testify and that they should not speculate as to why he was not there. T.748. At the defense request, Gaines testimony (both direct and cross-examination) from his April 1995 trial was read into the record.

T.748, 751. The transcript of Gaines' testimony given on April 12, 1995, was marked as Court Exhibit 2 in Scott's trial. T.751. A copy of this transcript is appended to this Decision and Order is made a part hereto.

Petitioner elected not to testify in his own behalf. T.756.

3. The Prosecution's Rebuttal Case

To rebut the testimony provided by Gaines through the reading of his earlier trial testimony, the prosecution sought to move into evidence (1) the written statement of Gaines given to the police, quoted supra in Section II.B; and (2) a certificate of conviction showing Gaines was found guilty of first degree manslaughter, second degree murder, and two counts of attempted first degree robbery. T.756-57. Defense counsel stated, "I have no objection to those two exhibits being put into evidence." T.757.

The prosecutor then made an offer of proof regarding the testimony he intended to elicit from Investigator Schultz regarding a meeting between Gaines, the prosecutor, and Gaines' defense counsel, in February 1995, prior to the commencement of Gaines' trial. During this meeting, Gaines indicated that while what he had said in his written statement was mainly true, it was incorrect inasmuch as it said that Latson (i.e., Gillette) had not been a part of the scheme.

T.758. Essentially, Gaines wanted the prosecutor to charge Latson as well. Gaines also informed the prosecutor that his written statement was true in regards to Scott's involvement, and offered to testify to that in exchange for a disposition of his case. Gaines' conditions were that Latson also be charged and that he wanted a disposition that did not entail a life sentence. T.758. The prosecutor indicated at the time that was not possible or appropriate, and the meeting terminated without any type of plea offer being extended to Gaines.

Defense counsel objected to the introduction of the rebuttal testimony, to be offered through Investigator Schultz, concerning Gaines' pre-trial meeting with the prosecutor. T.760-61. Counsel pointed out that Investigator Schultz's testimony about what Gaines had said at the meeting was hearsay, and because Gaines was unavailable to testify, it would be unfair to the defense because there was no opportunity to cross-examine him. The trial court noted that it was "not an issue of testimony" but rather was, "did he make a prior inconsistent statement, not whether or not the statement is true or false," and therefore the cross-examination of the declarant, Gaines, was not important. T.761-62. The trial court invoked the "rule of completeness," which he referenced on several occasions, stating "[i]t's the prior inconsistent statement which under the rule of completeness we allowed the testimony [given by Gaines at trial] to be read in and the impeachment materials also must come in." T.762. The prosecutor then observed that "in light of the transcript which has been heard by the jury, I think this [i.e., the written statement] is a separate and second prior inconsistent statement to the transcript testimony which has been offered." T.762. The trial court agreed. Defense counsel at that time did not ask for any limiting instructions to be given to the jury with regard to how it should consider (1) the written statement by Gaines or (2) the testimony to be given by Investigator Schultz. T.762.

Investigator Schultz then proceeded to testify consistently with the prosecution's offer of proof, outlined in the preceding paragraphs of this section (i.e., Section II.E.3, The Prosecution's Rebuttal). When the prosecutor requested that Investigator Schultz read into evidence Gaines' statement to the police made on October 25, 1994, defense counsel (rather inexplicably, in light of his express agreement with the introduction of the written statement as an exhibit), objected. see T.768:

Mr. Lewis: Objection, Judge. It's a statement that's already in evidence. It speaks for itself. There's no reason to ...

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