The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Petitioner Todd Branham brings this pro se petition for a writ of habeas corpus pursuant to U.S.C. § 2254, challenging his June 8, 2006 conviction following a jury trial in New York State Supreme Court, Bronx County, for Murder in the Second Degree under NYPL § 125.25(3). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life.
For the reasons set forth below, the petition is denied.
On May 8, 2004, Cardell Speight, an acquaintance of petitioner, telephoned taxi driver Alassane Thiam and solicited Thiam's services. (Tr. 41.) Thiam, who knew petitioner as "T," had petitioner's number in his cell phone and had driven him about ten or thirteen times in the past. (Tr. 45-46.) Thiam collected Speight, Yusuff Russell, and petitioner at 93rd Street and First Avenue in Manhattan in his Ford Expedition, and Speight directed the taxi to West 4th Street to pick up three women, Loreene Sebbane, Sophia Rosado, and Tiffany Simmons. (Tr. 48.) After the taxi picked up the women, Thiam drove to the Capri Whitestone Motel in Bronx County, arriving there around 2 A.M. (Tr. 49.) Thiam stayed in his taxi and watched a movie, but everyone else left the taxi and entered the lobby. (Tr. 49-50.)
A short time later, Anthony Lowe came outside from the lobby of the motel. (Tr. 50.) According to Thiam, petitioner was talking to Lowe "like he knew him" and standing "a little apart" from him. (Tr. 50-51.) Thiam testified that Speight grabbed Lowe's chain with both of his hands and Russell took hold of his arm. (Tr. 51.) Thiam testified that petitioner then walked up behind Lowe, standing about eighteen inches behind him and somewhat to the right of him, pulled out a gun, and shot him in the back. (Tr. 51.) Afterwards, Speight entered the taxi and sat in the front seat, holding the decedent's jewelry. Thiam testified that Speight was holding his stomach, and then exclaimed "T, you shot me." Thiam also saw blood on Speight's shirt. (Tr. 54-56.)
The three women whom the taxi had picked up were also present at the time of the attack. Prior to the attack, all three women had returned to back seat of the taxi. (Tr. 146.)
Rosado testified that she saw petitioner, Speight, and Russell encircle Lowe. She further testified that Speight began to argue with Lowe and slammed him on the taxi, a couple of inches away from her. Speight, face to face with Lowe, pulled off Lowe's chain with two hands. (Tr. 322-323.) Rosado then heard a gunshot, which sounded like it came from the right beneath the car, where petitioner was standing. (Tr. 323.) Sebbane also saw petitioner and his two co-perpetrators surround Lowe with petitioner on the right, Russell on the left, and Speight in the middle. (Tr. 147-148.) Sebbane testified that after Russell punched Lowe in the head, she heard an explosion from the right side. (Tr. 148-149.) Simmons, the third of the three women, had covered herself with her jacket and did not see the events transpire, but she did hear a shot ring out. (Tr. 167.)
After the shooting, petitioner, Speight, and Russell jumped back into the taxi. The three women and Thiam were already in the car. Petitioner allegedly told Thiam to drive and leave the scene, and Thiam felt a gun against his head. (Tr. 61.) Like Thiam, Simmons testified that Speight looked at petitioner, and said "T [or] Todd, you shot me." (Tr. 173.) Simmons heard petitioner apologize. (Tr. 173.) At some point, Speight removed his bloodied shirt, extracted a used slug from his stomach area, and threw the projectile out the car window. (Tr. 174.) Thiam drove the taxi to 86th Street in Manhattan, and everybody except for petitioner exited. Petitioner then allegedly warned Thiam: "[Do not] say anything. You don't know nothing. We know where you are. Don't say anything to nobody." (Tr. 62-62A.) Petitioner also allegedly stated that he knew where Thiam worked, and that if Thiam said anything, petitioner would come after him. (Tr. 62-62A.)
Speight was arrested in New Jersey and had a loaded and operable Colt .357 Magnum revolver on his bed, which Thiam later identified at trial as looking like the gun petitioner used to kill Lowe. Speight also had a "large amount of bullets" and, inside his wallet, two pawn tickets that were later redeemed for Lowe's gold chain, which Thiam later identified at trial as the chain Speight pulled during the crime. (Tr. 55.) Petitioner was arrested on May 27, 2004. On May 28, 2004, Thiam identified petitioner at a police lineup. (Tr. 71.)
II. Relevant Trial Court Rulings
A. Russell's Declaration Against Penal Interest
Before Rosado testified at trial, the district attorney moved in limine to preclude defense counsel from eliciting from Rosado a statement that had been made by Russell to Rosado on the night of the crime. In her handwritten statement to the police, Rosado wrote that she had asked Russell why he did "that," to which Russell replied, "I feel like since I got shot a couple of times (sic), people should know my pain." The district attorney argued that the statement was inadmissible because it was neither an admission nor a declaration against penal interest. The trial court ruled that the ...