The opinion of the court was delivered by: John Gleeson, United States District Judge
Demetrius Williams, currently incarcerated at Shawangunk Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction of felony murder in the second degree, rendered in Kings County Supreme Court following a jury trial. Williams, appearing pro se, claims that the trial court (1) erroneously declined to submit for the jury's consideration the "non-slayer" affirmative defense to felony murder; (2) improperly permitted the introduction at trial of suggestions that Williams had threatened or intimidated a prosecution witness and a potential witness; (3) deprived Williams of a public trial by excluding children from the courtroom; and (4) erroneously refused to suppress statements made by Williams to the police. Oral argument was held on December 1, 2010. For the reasons stated below, the petition is denied.
A. The Government's Case at Trial
Demetrius Williams ("Williams") and his co-defendant and cousin Leshawn
Williams ("Leshawn") were charged by indictment with, inter alia, three counts of murder in the second degree, including felony murder, two counts of robbery in the first degree, and robbery in the second degree. The indictment charged that, on June 27, 2003, the two men, acting in concert, stole a gold chain from Joab Thompson and, in the course of the robbery, caused his death by a single gunshot wound to the head. The cousins were tried together before separate juries. Five counts were submitted to the Williams jury, including second-degree felony murder. Trial Tr. at 848-55. The jury was instructed that if it found Williams guilty of felony murder, it should not consider the other charges. Id. at 847. Williams was found guilty of second-degree felony murder, id. at 977-979, and was sentenced to an indeterminate prison term of twenty years to life.
The government's evidence at trial established that, just after 10:30 p.m. on June 27, 2003, Thompson was found dead by fire department personnel on the second-floor landing of a stairwell in building "A" of the Carey Gardens Houses at 2946 West 23rd Street in the Coney Island section of Brooklyn. Id. at 54-56. Thompson had been shot in the head directly above the left eye. Id. at 57-58. Thompson did not live in the building, but he visited almost daily to see his mother, Rose Campbell, who lived on the eighth floor. Id. at 82. At trial, Campbell identified a gold chain with a medallion of the letter "D" that her son always wore. Id. at 84-85. She testified that Thompson always wore a white gold bracelet as well. Id. at 83-84.
Khadija Watkins, a woman who had grown up in the area and who lived at Carey Gardens at the time of Thompson's death, id. at 142-43, testified that she was the first person to arrive at the scene after Thompson was shot. Id. 146-47. She noticed that his chain and bracelet were gone. Id. at 251-52. Watkins testified that she was a close friend of Thompson, whom she had known for eight or nine years. Id. at 249-50. She had also known Williams and Leshawn for years, as they had all grown up together. Id. at 144, 148-49.
2. Watkins's Testimony About "Yapping" Thompson
Watkins told the jury that about two weeks before the homicide, she was in the apartment of Quantella Harrington and Danielle Jones, two friends who lived together at 2946 West 23rd Street. Id. at 147, 143. Williams and Leshawn were with the three women in the living room when Thompson entered and went to the back of the apartment. Id. at 147-49. After he came in, "[e]verbody started talking about the chain [he] had around his neck." Id. at 147-48. In particular, Leshawn said he and his cousin would "yap [Thompson] for the chain," which Watkins took to mean Leshawn intended to steal the chain. Id. at 152-53. Williams responded to his cousin's statement by nodding his head. Id.
Watkins testified that several days later, she was standing with Williams, Leshawn, Harrington, and Jones outside the building where the murder took place. Id. at 205-206. Thompson walked by the group, and as he passed, "Leshawn said he was going to yap him for the chain." Id. Again, Demetrius "just nodded his head like, yeah, we're going to get him." Id. *fn1
3. The Pawning of Thompson's Chain
Andre Wise, who had grown up in the Carey Gardens housing project, had known Williams and Leshawn since childhood. Id. at 363-64, 369-70. He also had known someone named Hasan Chery his whole life. Id. at 357-58. Wise testified that on June 28, 2003, the day after Thompson was shot, Chery and Leshawn came to see him in Manhattan, where he lived.
Id. at 358-60. Chery and Leshawn had with them Thompson's chain, which Chery asked Wise to pawn. Id. at 360-62, 371 (identifying as the chain he was asked to pawn the same chain Campbell identified as her son's). The three men went together to a pawn shop, where Wise pawned the chain for $418. Id. at 362A, 364-66. He gave the money to Leshawn. Id. at 364-66. Wise testified that when Chery handed him the chain, "it looked like it was popped . . . . One of the links wasn't together." Id. at 366.
4. Williams's Statement to the Police
Detective Michael Heinrichs of the Brooklyn South Homicide Squad, id. at 554, and Detective John Kenny of the 60th Detective Squad, Huntley Tr. at 3, testified that they apprehended Williams in the late afternoon of June 30, 2003 around Surf Avenue and 24th Street and brought him to the 60th Precinct where they interviewed him later that evening. Trial Tr. at 554, 652-53, 663. During the course of the interview, Williams told the detectives that on the evening of June 27, 2003, he had been by the ball park in Coney Island watching some fireworks. Id. at 655. Afterwards, he returned to the building in which Thompson was later shot.
Id. There, he met up with Leshawn, and the two of them entered the building and got onto the elevator with a number of other individuals including Thompson. Id. Williams told the detectives he had a gut feeling that something was wrong, because his cousin sometimes does crazy things. Id. at 657, 666-67. He noticed a crazy look in Leshawn's eye and had a feeling that something was about to happen. Id. at 688-89. According to Williams, as he and Leshawn moved to exit the elevator, Thompson attacked Leshawn with a razor. Id. at 655. While the two men fought, Williams stepped between them and began to run down the stairway. Id. Part-way down the stairway, he heard a gunshot and looked back to see Leshawn running after him and Thompson lying on the floor. Id. at 655-56, 691-92. The cousins ran out of the building. Id. at 656.
4. The Surveillance Tapes and Photographs
In June 2003, Police Officer Denise McDonald was assigned to the Video
Interactive Patrol Enhancement Response unit, or "VIPER," which had installed surveillance cameras in certain public housing developments. Id. at 426-27. McDonald's assignment was to monitor footage captured by cameras in and around the four buildings of the Carey Gardens project. Id. at 427-28.
McDonald testified that on June 28, 2003, she was asked to review the previous day's recordings to look for footage of an individual who met the description of Thompson as provided to her by another police officer. Id. at 430-31. McDonald isolated a number of clips that were subsequently burned onto a CD and introduced as an exhibit at trial. Id. at 439-40. In her testimony, McDonald described the clips as they were played for the jury. Id. at 451-57, 469-72. In the first clip, Thompson was seen entering the building, followed by Williams and Leshawn, at approximately 10:27 p.m. Id. at 453-54. In the next clip, all three men boarded the elevator from the lobby. Id. at 454. A number of other passengers were seen exiting the elevator on the second floor. Id. at 455. Thompson, Williams, and Leshawn rode to the eighth floor, where all three got off. Id. at 455-56. According to the prosecutor, the video showed Williams nodding his head repeatedly to Leshawn just before the elevator door opened on the eighth floor. Id. at 790. The prosecutor also pointed out what she described as "an unnatural bulge" tucked into Williams's waistband beneath his shirt, which she suggested was a gun. Id. at 789, 791-92.
McDonald testified that on June 28, 2003, she had also seen a clip that showed the cousins leaving the building together at approximately 10:30 p.m., but that portion of the recording had not been preserved and could not subsequently be relocated. Id. at 457-60. According to McDonald, a rip could be seen in Leshawn's shirt as he left the building. Id. at 467-68. The rip was also visible in footage taken at approximately 10:32 in a neighboring Carey Gardens building; that footage was preserved and shown at trial. Id. at 468-69. In addition to the video clips, the government introduced three still photographs, which were taken from the recordings and described by McDonald to the jury. Id. at 434.
B. The Suggestions of Witness Intimidation
1. The Suggestion that Watkins was Intimidated Watkins gave inconsistent testimony at trial regarding her interactions with Williams, Leshawn, and Thompson in the days leading up to the homicide. When first asked by the prosecutor whether she had stood outside 2946 West 23rd Street with the cousins several days before the homicide, she said she had not, and she denied having heard them say anything about Thompson when he walked by. Id. at 154-55. The prosecutor repeated her question, and Watkins repeated her denial. 164-65. At a sidebar conference, the prosecutor told the court that Watkins's testimony conflicted with all previous statements she had made, including her grand jury testimony. Id. at 155-56, 158. The judge permitted the prosecutor to speak with Watkins in the presence of defense counsel, but outside the presence of the defendants, the jury, and the court. Id. at 179-84.
When Watkins resumed the stand, the judge informed the jury that "during the break, I allowed the district attorney an opportunity to talk to [Watkins] about something that's been happening on the stand, so she did talk to the district attorney during the recess. And I'm going to let you know that because that might factor into your view of the testimony." Id. at 204-05. The third time Watkins was asked whether she was outside 2946 West 23rd Street several days before the murder with Wiliams and Leshawn, Watkins testified that she was. Id. at 205-06. She said that Thompson walked by, and Leshawn said he would "yap" Thompson for his chain, to which Williams agreed with a nod. Id. at 206. The prosecutor asked why she had earlier denied these events, and Watkins explained that she was "nervous" because "[s]omeone that was sitting on the defense side was saying something to me from over there." Id. at 206-07.
2. The Suggestion that Harrington Was Intimidated
Harrington did not testify at trial. Leshawn's counsel asked Heinrichs on cross-examination when he had last seen her. Id. at 562. Heinrichs said he had seen her a day earlier at the office of the Brooklyn District Attorney ("D.A."). Id. On redirect, the prosecutor asked about Harrington's "demeanor" at that encounter. Id. at 614. Over the objection of Leshawn's counsel, Heinrichs testified that Harrington had been "very upset and scared. . . . [S]he didn't want to be there and she said that she couldn't testify." Id. at 614-15. A sidebar conference followed, after which the judge told the jury "it was inappropriate for this witness to use the word 'scared.'" Id. at 632. He also told them "as a matter of fact that there is no allegation that Ms. Harrington ever said that either of these defendants ever threatened her in any way, shape or form." Id. Heinrichs then testified, in response to two leading questions by the prosecutor, that Harrington had been "very upset" and "uncooperative." Id.
C. The Request for an Affirmative Defense Charge
After the close of evidence, Williams's attorney moved to have the jury instructed in the "non-slayer" defense, New York's statutory affirmative defense to felony murder, "that . . . the defendant was not armed, he claimed not to know his companion was armed, and did not anticipate in any physical violence [sic]." Id. at 719-20. The court denied the motion, explaining that Williams had not made a showing of any of the elements of the defense. Id. at 720-22. Williams's attorney renewed his request after summations, just before the judge instructed the jury. Id. at 821-23. Again, the court declined to give the charge, because Williams had offered "no affirmative proof" that he did not have a gun. Id. at 822-23.
D. The Trial Court's Order Excluding Children
In preliminary proceedings before the start of trial, the trial judge ruled that small children would not be permitted in the courtroom during the course of the trial. She gave no explanation other than that "[c]hildren do not belong in a courtroom," and said she had given the same order off the record the previous day. Voir Dire Tr. at 489-90. No objection to the order appears on the record.
E. The Huntley/Wade Hearing
Prior to the start of trial, the court held a Huntley/Wade hearing to determine the admissibility at trial of Williams's statement to the police.*fn2 Kenny and Heinrichs testified that, two days prior to Williams's arrest on June 30, 2003, Harrington and Watkins had voluntarily come to the stationhouse and independently named two cousins, "Dee" and "Shawn" Williams, in connection with the homicide. Huntley Tr. at 4-5, 39, 93, 110. They each identified "Dee" Williams in one of the VIPER photographs taken inside the elevator of 2946 West 23rd Street around the time of the shooting. Id. at 6-8. On the basis of this information, Williams became a focus of the detectives' investigation, and was arrested and brought to the 60th Precinct for questioning. Id. at 10-11. After several hours of waiting, Williams was questioned by Kenny and Heinrichs. Id. at 11, 80-81, 106-107. Before either detective asked any questions, Kenny informed Williams of his Miranda rights, which Williams said he understood and orally agreed to waive. Id. at 12-14. In response to Kenny's questions, Williams then provided his account of the events of June 23, 2003. Id. at 15-16, 30.
Following the hearing, the court held that Williams's statement to the police was admissible and denied his motion to suppress. Mem. Decision Denying Mot. Suppress, Apr. 20, 2005, ECF No. 12 ("Decision Denying Mot. Suppress").*fn3
On direct appeal, Williams submitted a counseled brief and a pro se brief to the Appellate Division, Second Department. Each brief raised two claims. The counseled brief argued, first, that Williams was denied his right to a jury trial, to present a defense, and to due process of law by the trial court's refusal to submit for the jury's consideration the "non-slayer" affirmative defense to felony murder; and second, that Williams was denied his due process right to a fair trial "by the repeated, but baseless, hints and suggestions" that Williams and Leshawn had threatened or intimidated a prosecution witness and a potential witness. In his pro se supplemental brief, Williams argued, first, that his constitutional right to a public trial was violated when the trial court prohibited children from observing the trial; and second, that the statement he made to the police was illegally obtained, and that its admission at trial violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.
The Appellate Division denied all four claims and affirmed Williams's conviction on November 18, 2008. People v. Williams, 873 N.Y.S.2d 71 (2d Dep't 2008) ("Williams"). On April 1, 2009, a judge of the Court of Appeals denied Williams leave to appeal. People v. Williams, 12 N.Y.3d 823 (2009) (Read, J.). This petition followed.
A. The Legal Standards for § 2254 Petitions
1. Review of Unexhausted Claims
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas relief from a state court conviction is generally unavailable unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must fairly present his federal constitutional claims to the highest state court having jurisdiction over them. See Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). A petitioner has not exhausted state remedies "if he has a right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). In New York, this includes seeking leave to appeal in the New York Court of Appeals, even though such appeal is not granted as a matter of right. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003). When a claim in a habeas petition has not been exhausted, but there are no remaining procedures available in state court for the petitioner to exhaust his claim, the petitioner will not be required to engage in a futile attempt to exhaust the claim in state court.
See, e.g., Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003). In such cases, the federal court is required to treat the claim as procedurally defaulted. Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Sweet, 353 F3d at 140.
2. Review of Procedurally Defaulted Claims
A claim is also procedurally defaulted if the state courts explicitly refused to consider the merits of the claim because of a procedural bar. Explicit reliance on a procedural bar preventing adjudication of the merits of a claim generally constitutes an independent and adequate state law ground for the state court's judgment, precluding federal review. See Harrisv. Reed, 489 U.S. 255, 260-62 (1989) (explaining rationale for habeas corpus procedural default rule); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting a state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having an opportunity to correct its own errors"). A federal habeas court may not generally review a procedurally barred claim on the merits. Such review will be available only in the following limited circumstances.
First, a petitioner is entitled to review of a procedurally defaulted claim if he can show "cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750. Second, if a petitioner cannot show cause and prejudice, his procedural default may still be excused if he can demonstrate that a fundamental miscarriage of justice would result from a failure to hear the claim on the merits -- that is, "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)). Third, in a "limited category" of "exceptional cases . . . exorbitant application of a generally sound rule [can] render the state ground inadequate to stop consideration of a federal question." Lee v. Kemna 534 U.S. 362, 376 (2002) (citation omitted).
3. Review of State Court Adjudication on the Merits Whenever a state court disposes of a habeas petitioner's federal claim on the merits and reduces its disposition to judgment, regardless of whether it refers to federal law in its decision," Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001), a limited scope of review defined by AEDPA applies. Pursuant to AEDPA, a federal habeas court may overturn a state court's ruling on the merits of a claim only if the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." 28 U.S.C. § 2254(d). In addition to the deference owed to state court determinations of fact under § 2254(d), subsection (e) requires that federal habeas courts presume all state court factual determinations to be correct. The petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The Supreme Court has interpreted the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" to mean "the holdings, as opposed to the dicta," of its decisions at the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000) ("Taylor"). A decision is "contrary to" clearly established federal law if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 412-13.
A decision is "an unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. An unreasonable application is more incorrect than a merely erroneous one, Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Taylor, 529 U.S. at 411), but while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted)).
B. The Failure to Give a Non-Slayer Instruction
Williams's first claim for habeas relief is premised on the trial court's refusal to instruct the jury as to the non-slayer defense to felony murder. In the Second Circuit, "[i]n order to obtain a writ of habeas corpus . . . on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). "Before a federal court may overturn a conviction resulting from a state trial in which [an erroneous] instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." *fn4 Cupp v. Naughten, 414 U.S. 141, 146 (1973). The same standard is applied in the Second Circuit where a habeas petitioner alleges not that an erroneous instruction was given, but that a state court erred in failing to instruct the jury as to a defense. In such cases, a writ of habeas corpus should issue "where the evidence supports [the defense] charge under state law and where the erroneous failure to give such a charge was sufficiently harmful to make the conviction unfair." Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001).
In Davis v. Strack, the Second Circuit granted a habeas petition in connection with a state court's failure to charge the jury as to a justification defense. Relying on the Supreme Court's holding in Cupp v. Naughten, Davis established a three-step analysis for determining whether a state court's failure to instruct a jury as to a defense "'so infected the entire trial that the resulting conviction violates due process.'" Id. at 123 (quoting Cupp, 414U.S. at 147).
First, was the [defense] charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp. Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254?
Davis, 270 F.3d at 124; see also Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005) (applying the Davis test where the state court failed to give a justification instruction); Vega v. Walsh, 258 F. App'x 356, 357-59 (2d Cir. 2007) (holding that the Davis test applies where a state court fails to instruct as to affirmative defenses as well as defenses); Nylander v. Smith, 07-CV-0457 (SLT), 2010 WL 1292297, at *7-8 (E.D.N.Y. Mar. 30, 2010) (applying the Davis test where the state court failed to give a non-slayer instruction).
1. Availability of the Defense as a Matter of State Law
Under New York Law, a person is guilty of second-degree felony murder when, "acting either alone or with one or more other persons, he commits or attempts to commit robbery . . . and, in the course of and furtherance of such crime or immediate flight therefrom, he or another participant . . . causes the death of a person other than one of the participants." N.Y. Penal Law § 125.25(3). Where the defendant was not the only participant of the underlying crime, it is an affirmative defense to second-degree felony murder if the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, ...