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Smith v. Perez

June 29, 2010

PATRICE SMITH, PETITIONER,
v.
ADA PEREZ, SUPERINTENDENT, BEDFORD HILLS CORRECTIONAL FACILITY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Patrice Smith ("Smith" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Smith challenges the legality of her state-court custody pursuant to a judgment of conviction entered against her following a jury trial in Erie County Court, New York State Supreme Court, convicting her of intentional murder, felony murder, and first degree robbery.

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

The acts upon which Smith's conviction is based occurred when Smith was 16 years-old. The victim was a 71-year-old man, Reverend Robert Robinson ("Robinson" or "the victim" or "the decedent") with whom Smith had been involved an eight-month sexual relationship that began when she was 15 years-old. The indictment charged Smith and her friend, "Theoplish" [sic] a/k/a "Laurentz" Mitchell ("Mitchell" or "co-defendant"), with strangling and beating the victim to death at his house and stealing his car. Smith's co-defendant was tried separately.*fn1 The evidence presented by the prosecution at Smith's trial included Smith's statement that the victim gave her money and gifts in return for sexual favors.

At trial, Smith testified that she first met Robinson when he stopped to help her and her friends when they were having car trouble. Smith told him that she was 18 years old; she did not know how old he was the thought he appeared to be about 45 or 50. Robinson took her out to eat on several occasions. Eventually he asked if she had a boyfriend and said he wanted to get to know her better. T.856.*fn2 Robinson would take her to the mall and get her money to buy things. They started talking to each other every day. He used to tell her that she was so "tender" because she was so young and one day he asked if he could touch her sexually; she refused. T.859. A couple weeks later they were driving around in his car and he took her to an old train station and told her that he would give her $50 if she let him touch her. T.860. She let him, and then he masturbated; after he was finished he gave her $50 and drove her home. The same thing happened a couple days later. During her testimony regarding the sexual incident at the train station, Smith began crying, T.950, and explained on cross-examination it was because she "was ashamed[.]" T.950. Several weeks later Robinson offered her $100 if she would have sexual intercourse with him. T.861. He brought her to his house and told her to perform oral sex on him, and she did so reluctantly. He paid her $100. Smith said that Robinson would buy her whatever she wanted from the liquor store so she "could be drunk whenever he asked [her] to do [it]."

T.862. Robinson also used to purchase marijuana for her. T.863-64. Robinson himself did not use drugs or drink alcohol, however.

Smith testified that Robinson gave her money "most" of the times she performed some sort of sexual act with him. T.864. Robinson gave her his wristwatch and bought her a new one after she lost it, bought her school clothes, jewelry, sneakers and boots, a television set, and a phone; "practically whatever [she] wanted" he bought her. T.878. In June of 1998, Robinson told her that if she "could have his baby he would buy [her] a house." T.879. Robinson also promised that if she got her driver's license than she could have his other car, also a Cadillac.

Smith testified that Robinson was interested in having sex with other young women and in finding a sexual partner for Robinson's best friend, James Smith. Petitioner recalled a conversation in which Robinson asked her if she "could find James a friend," a young woman like petitioner. T.866. Robinson wanted petitioner to have sex with both him and his friend.

T.866-67. Robinson also suggested that petitioner and her best friend get together with him and put on a "sex show" for him, and he once asked Smith to get him a "white girl." T.867. When Robinson would come to pick her up he would say to just bring her friends in the car with them. Petitioner identified several girls, including Martricia Gaskin and co-defendant Mitchell who had "been in his car." Smith testified that Gaskin or Mitchell were always with her when she would be driving around with Robinson. According to Smith, Robinson would let her friends know of his sexual interest by asking some of the girls to get out of the car, leaving him alone with another girl. T.868-69, 870.

Petitioner testified that about one time that he had sex with her against her will. One night she had gone over there because she was so drunk and she did not want to go back to her own house. T.883. Robinson said that he wanted to have sex with her and she told him no because she was so sick. She passed out and when she woke up he was between her legs with his penis in her vagina. T.883-84. She told him to get off her because she was going to vomit and ran to the bathroom. T.884.

Petitioner related that she currently lived with her father, and that she tried to keep her relationship with Robinson secret from him. She went to go live with her father because her mother had thrown her out of the house. Petitioner stated that while she was living at her mother's house, her brother had raped her. T.885. Petitioner's brother continued to live with her mother after Petitioner left.

On the night of the incident, Petitioner testified, she and Mitchell were "bored" so she called Robinson to see if they could come over to his house. T.879-80. They took the bus to Robinson's house, arriving about 8 p.m. Mitchell brought along her four-month-old baby. They all watched television in the front room for about half an hour. Then Robinson went into the back, where his bedroom was, and told Smith that he wanted to have sex with her there. T.880-81. Robinson told her, "don't forget who be [sic] buying all [her] stuff." T.881. Smith acknowledged his generosity but said she did not want to have sex with him that night. According to Smith, Robinson started "getting all mad about it, telling [her] [she] need[s] to pay him back for everything that he's getting [her]." T.881. Smith replied that she would pay him back when she got a job.

At that point, Robinson left the room to admonish Mitchell to stop looking through some family mementos or photographs. When Smith followed behind him, Robinson asked her where she was going. Smith testified that he then "slapped [her] right across [her] face" and ordered her to go back to his room. T.881. On cross-examination, she claimed it was a "back hand" slap on right side of her face. T.971-72. Robinson tried to push her into the back room as she was trying to get to the front of the house to get away from him. (Smith said that she would not have been able to get out of the house even if she had tried because Robinson had so many locks on his doors; one could not exit the house without the right keys. T.886.

Smith related that she and Robinson started fighting and Robinson threatened that he was going to get his gun. Robinson previously had told her that he slept with a gun under his pillow because he had been robbed once. Smith stated that he actually had shown her the gun. T.882. Smith was "scared" and she did not want him to get to the back room because she believed that was where the gun was located. As they were fighting in the hallway, Robinson, who was slightly smaller than she, fell down with her on top of him.

After Robinson fell on the floor, as he was trying to push Smith off of him, he announced that he was going to kill her. Smith explained, "I was real scared that he was going to go get his gun, and the cord was like right there, and I swear I didn't mean to put it around his neck . . . ."

T.885-86, 887. Smith testified on cross-examination that she did not how she "got [the cord], but it was in [her] hands." T.989, see also T.990-91. Smith said that she did not mean for the cord to become wrapped around Robinson's neck; however, she "just started pulling it" while they were "still fighting" and he was still trying to get up. Smith testified that she was thinking, "I don't want my life to be taken just because I didn't want to have sex with this man." T.890.

As Petitioner was pulling on the cord around Robinson's neck, Mitchell put a pillow over his head. Smith let go of the cord and "somebody [sic] grabbed a hold of the cord, and after that we just left." T.888. Smith said that Mitchell held the pillow over his head until she (Smith) let go of the cord and then Mitchell grabbed onto the cord and started strangling him. T.888; see also T.997. Eventually, Smith testified, she saw blood coming through the pillow, although she told the police that she saw blood coming out of Robinson's mouth. T.1004. Smith testified on cross-examination that she got up and walked away from Robinson, to the front room, and Mitchell grabbed the cord and started pulling on it. T.997. At that point, Smith claimed, she told Mitchell to get up so they could leave. Id. Smith claimed that Robinson was not dead or unconscious when they left him lying in the hallway, although she admitted that she never saw him move or get up. T.1033.

Before Smith left the house, she took the keys to Robinson's blue Cadillac and went into the garage with Mitchell and her baby. T.1004. Smith testified that she put the baby in the car and Mitchell was driving. However, in her statement to the police, Smith said it was she who pulled the car out of the driveway. T.1008. Smith testified that Mitchell parked the Cadillac on Davidson Street, which was just around the corner from Smith's house. T.1024. Smith said that she did not intend to "steal" Robinson's car but she just did not want to be at his house any longer and taking the car was the quickest way to get away. T.890, 1024.

Once they were back at Smith's house, Smith and Mitchell found their friends Ronnie Goosby and Randy Winston still hanging out there. It was about 10 p.m. T.209. The four of them sat around and played cards and watched television. E.g. , T.210. When the story regarding Robinson's homicide appeared as "breaking news" on the 11 p.m. news broadcast, Mitchell turned the T.V. off. T.1025.

Smith testified that she did not take anything from Robinson nor did she see Mitchell take anything from him. T.889. In her police statement, however, she explained that Mitchell went through the decedent's pockets and took his wallet, containing $20. Smith denied that she and Mitchell ransacked the house and claimed she did not know how it got to be in such disarray. 891.

Smith's friend, Ronnie Goosby, had known her for between four and six years and used to spend time at her house on Millicent Avenue "[a]bout everyday." T.203. He had known Mitchell for about a year and a half, and had had a sexual relationship with her. T.204, 225. According to Goosby, when the news came on the television, Petitioner and Mitchell wanted to stop playing cards so they could watch the news. T.211. When the story aired about a resident on Hamlin Road getting beaten and killed, Mitchell got up and turned off the television set. T.211-12. Goosy then asked Mitchell and Petitioner what had happened. T.212. Petitioner said that they "had went [sic] over there to rob the Reverend and they beat him up, and they thought they beat him up . . . ." T.212. Petitioner explained that Mitchell distracted Robinson while Petitioner put the phone cord around his neck. T.213. Petitioner said that "[w]hile she was choking [him] they seen [sic] blood come out of his mouth and that's when they [i.e., Mitchell] put the pillow over his face." T.213. Petitioner told him that they were looking for money and that Mitchell "was ransacking th[e] house." T.214. Goosby recalled that once Petitioner arrived home, she had keys to the Cadillac and $20 in her hand. T.215. Petitioner changed the clothes she had been wearing.

T.214. She told Goosby that they had parked Robinson's car around the corner from her house.

T.216.

After the news broadcast, Petitioner appeared to Goosby to be "[s]cared." T.216. She asked him to be her alibi. T.216-17. Goosby said "no" because he did not want to be involved.

T.217. He and Winston left Smith's house, and went over to the convenience store to call a cab for Smith and Mitchell. Winston provided testimony that was consistent with that provided by Goosby. See T.249-50, 263-64, 272-73. About half and hour later, Petitioner and co-defendant Mitchell asked Goosby to call them a taxicab; they then left and went over to Mitchell's house.

T.217-19, 274-75, 379-80. Winston testified similarly that Petitioner admitted to him that she and Mitchell beat the decedent and that she choked the decedent with a telephone cord. T.266-73. Petitioner also asked Winston to be her alibi, but he refused. T.275.

The decedent's body was discovered by his daughter, Anita Ortiz ("Ortiz"), at about 10:15 p.m. that night. He was found lying on his back in a pool of blood, in the sitting room. Drawers had been opened in the bedrooms and various items were strewn about. Ortiz noticed that her father's watch, as well as his car keys and car, were missing. T.97-98, 105-07, 111-12, 130-33, 162.

About a week after the incident, Smith was brought to the police station for questioning. In her first statement, she denied involvement in the homicide. In her second statement, see T.438-42, Petitioner stated that her co-defendant, Mitchell, had told her that she (Mitchell) was going to rob the victim. After Petitioner and Mitchell arrived at the victim's house, the victim threatened to shoot and kill Petitioner with his gun. A struggle ensued in which Petitioner ended up with a telephone cord in her hands which got wrapped around the victim's neck. Petitioner told the police that the victim fell and hit his head. Petitioner was holding onto the cord when she saw that the victim was coughing up blood. Co-defendant Mitchell then put a pillow over the victim's face, and Petitioner let go of the cord. They both got up, grabbed the victim's car keys, and left the house. Petitioner said in her second statement that the victim was still breathing when they left and that she had not meant to do it. According to Petitioner, co-defendant Mitchell took some cash from the victim's pocket. Petitioner and Mitchell got into the victim's blue Cadillac, and Petitioner drove the car over to Davidson Street and parked it, and then they returned to Petitioner's house on Millicent Avenue.

The prosecution called as a witness an inmate named Norma Williams ("William"), a long-time crack addict who had been housed with Petitioner prior to trial. The inmate testified that Petitioner told her "that she [Petitioner] had committed a murder with [sic] a guy she used to date and she committed murder because the guy failed to give her some money." T.467, 468.. According to Williams, Petitioner explained that "[h]er [sic] and her partner had commenced to beat the guy and then strangled the guy." T.467. Petitioner told Williams that she had used a telephone cord to strangle the victim. T.467. After the murder, Petitioner said, she and her partner rode around Buffalo in the car of "the guy who got killed[.]" T.468. Williams testified that Petitioner had mentioned that "her friend's baby was present" at the time of the murder.

T.468.

The prosecutor's theory of motive was that Smith went over to Robinson's house on the night of the murder in order to steal money from him so that she could retain an attorney to represent her in connection with a weapons-possession charge then pending in Buffalo City Court. T.61-62, 1163, 1186-87. Apparently, Smith did not qualify for pro bono representation due to her father's income level, and her father was unwilling to put forward a retainer fee for an attorney. The prosecution called a friend of Petitioner's, Martricia Gaskin ("Gaskin"), who testified that a few months before the homicide, Petitioner had asked to go over to Robinson's house and "distract the minister" while Petitioner stole money from him. T.494-95. Gaskin understood that Petitioner was referring to Robinson, the decedent. T.495. Gaskin testified that Petitioner claimed to know where Robinson kept his cash secreted in his house. See T.494-95.

The county medical examiner testified that the cause of death was ligature strangulation.

T.644. He opined that significant force would have had to have been used, and that death would have occurred in one to five minutes. T.643, 653, 682.

The trial court refused trial counsel's request to charge the defense of extreme emotional disturbance or "EED" but granted the request to issue two self-defense instructions. The jury rejected the defense theories of justification (self-defense), and returned a verdict finding Smith guilty as charged in the indictment of two counts of second degree murder (intentional and felony) and one count of first degree robbery.

Petitioner was sentenced on December 1, 1999, to indeterminate terms of imprisonment of twenty-five years to life for the murder convictions, and a ten-year determinate term for the robbery conviction, all sentences to be served concurrently.

Smith appealed her conviction and on November 15, 2002, the intermediate state appellate court unanimously affirmed the judgment of conviction. People v. Smith , 299 A.D.2d 941 (N.Y. App. Div. 4 th Dept. 2002). Leave to appeal was granted and on February 17, 2004, the New York Court of Appeals affirmed the Appellate Division's order. People v. Smith , 1 N.Y.3d 610 (N.Y. 2004).

Smith then collaterally attacked her conviction by means a motion for vacatur pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. While the C.P.L. § 440.10 motion was still pending in Erie County Court, Smith filed the instant habeas petition in this Court. The County Court has since issued a decision denying Smith's request for C.P.L. § 440.10 relief.

Smith states that she "is raising the same grounds that she raised on direct appeal and her 440.30 [sic] motion," Petition, ¶12(a) (Docket No. 1), and has attached copies of her appellate brief, C.P.L. § 440.10 motion, and pages from the trial transcript relevant to her claims. All of the grounds raised in Smith's Petition appear to this Court to be fully exhausted, either by presentation to the state court on direct appeal or in the C.P.L. § 440.10 ...


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