The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Anthony Foster("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered March 29, 2005, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25(1)). Petitioner was sentenced to an indeterminate term of imprisonment of twenty five years to life.
II. Factual Background and Procedural History
On September 27, 2004, Petitioner was indicted by a Monroe County Grand Jury and charged with two counts of Murder in the Second Degree under intentional and reckless theories. See Ind. No. 856/04 at Resp't Ex. B. The charges arose from an incident that occurred on August 7, 2004, at the intersection of Remington and Coleman Streets in the City of Rochester, New York, wherein Petitioner shot Kenneth Becoats ("Becoats" or "the victim") with an assault rifle at close range, killing him. After the shooting, Petitioner fled the jurisdiction and the police were unable to locate Petitioner until they obtained eavesdropping warrants to monitor Petitioner's phone calls. On September 14, 2004, the police apprehended and arrested Petitioner as he arrived in Rochester on a train from Albany. Three days later, five eyewitnesses to the shooting identified Petitioner in a police lineup.
Prior to trial, Petitioner's counsel filed an omnibus motion, wherein he moved, inter alia, to suppress evidence seized pursuant to the eavesdropping warrants, and requested a hearing pursuant to Franks v. Delaware.*fn1 See Resp't Ex. B at 10-88. The trial court summarily denied the request for the hearing, concluding that Petitioner failed to make a substantial preliminary showing that false statements were knowingly and intentionally included in the supporting affidavits. Motion Mins. [M.M.] of 12/02/04 at 5. The trial court also summarily denied Petitioner's motion to suppress evidence seized as a result of the eavesdropping warrant, concluding that the supporting affidavits "sufficiently apprise[d] the issuing court at that time of the nature and progress of the investigation" and the difficulties of using normal law enforcement methods. M.M. at 5-6.
On February 28, 2005, Petitioner proceeded to trial before a jury in the Supreme Court, Monroe County before the Honorable Francis Affronti.
On the evening of August 7, 2004, Becoats was sitting in a parked black Chevy, which belonged to Willie Siler ("Siler"), in front of a neighborhood market located at 338 Remington Street. Trial Trans. [T.T.] 511, 629. That evening, Becoats' younger brother Eddie Becoats ("Eddie") went to the location after attending a party and spoke with his brother. T.T. 511-516. During their conversation, Eddie saw Petitioner walking towards the vehicle carrying an assault rifle. T.T. 516-517. Eddie recognized the assault rifle as belonging to Jason Roldan ("Roldan"); Eddie had seen Roldan with the gun at Philipe Cruz's ("Cruz") house, which was nearby at the intersection of Coleman and Remington Streets. T.T. 518-519. Petitioner was wearing a "visor-like" hat, a tan coat, fatigue pants, and Timberland boots. T.T. 516. Eddie jumped out of the car and begged Petitioner not to shoot his brother. T.T. 517-519. In response, Petitioner smiled, then fatally shot Becoats. T.T. 517, 984. Eddie fled and told people on the street that Petitioner had shot his brother. T.T. 521. Eddie did not know Petitioner by name at the time of the shooting, but had seen him hanging around Coleman Street a couple months prior to the shooting. T.T. 521.
Earlier that same day, Andre Crockton ("Crockton") and Becoats were observed on the corner of Coleman and Remington having a disagreement. T.T. 563-564, 629-630, 636, 768-770, 859. Later that day, Petitioner told Siler that Crockton was upset with Becoats because Becoats was selling marijuana from the corner of Coleman and Remington. T.T. 642. Siler told Petitioner not to get involved with the disagreement between Crockton and Becoats. T.T. 642. Petitioner and Siler talked for a while longer, and then Petitioner walked away. T.T. 643. Siler stood outside of the houses on Remington Street and used his cell phone to call his girlfriend. T.T. 645.
At around 8:00 or 9:00 p.m. on the night of the incident, Brandon Collier ("Collier"), Becoats' cousin, was standing in front of the store at the corner of Coleman and Remington when he saw Petitioner, Crockton, and Roldan walk from the corner to Cruz's house on Coleman Street, where they momentarily disappeared from Collier's view. T.T. 565, 569. When they reappeared, they had split up; Crockton walked away from the store towards Clinton Street, and Roldan and Petitioner walked towards the store, which was on Remington Street. Roldan then ducked into one of the houses near the corner of Coleman and Remington, and Petitioner continued walking down Coleman Street towards the store. T.T. 569-570. Petitioner was carrying an assault rifle, which Collier recognized as belonging to Roldan. T.T. 565-572. Collier saw Petitioner approach Siler's black Chevy, which was parked on Remington Street in front of the store, and fire a shot into the driver's side window of the car. T.T. 572-574. Collier did not know at the time that the victim was seated in the driver's seat of the car. T.T. 574. After the shooting, Collier saw Roldan grab the gun from Petitioner and flee to a house across the street from the crime scene. T.T. 574-576.
In the interim, just before the shooting, Siler was talking to his girlfriend on his cell phone when he saw Petitioner walking towards Siler's car carrying an assault rifle. T.T. 647. Siler then saw Petitioner raise the rifle and heard him say, "what's good" before firing a shot into the driver's side window of the vehicle. T.T. 647. Siler tried to run away, but Petitioner stopped him and said, "Will, what the fuck you running for?" Siler replied, "[m]an, you just shot that boy," and Petitioner told Siler to "keep his name off the streets." Petitioner then fled down Remington Street. T.T. 576, 648.
Meanwhile, Diane Downs ("Downs") and Keesha Rivers ("Rivers") both lived on Remington Street next to the crime scene and witnessed the shooting as they were sitting on their respective porches. T.T. 772-775, 860-863. After the shooting, Downs saw Siler approach Petitioner, whom she had never seen before, and heard Petitioner say, "I got what I wanted." T.T. 776, 778. Downs and Rivers both called 911. T.T. 776, 882. Rivers, who was a nurse, provided medical aid to Becoats until the police arrived. T.T. 864-865. At the time of the shooting, although Rivers did not know Petitioner "personally," she knew who he was from seeing him in the neighborhood. T.T. 875.
Sergeant Anthony Debellis of the Rochester Police Department's ("RPD") Major Crimes Unit responded to the crime scene shortly after the murder and saw Becoats lying in the front seat of Siler's car. T.T. 825-826. Sergeant Debellis spoke to Downs and Rivers, who were both crying. T.T. 826. Sergeant Debellis also spoke to Roldan, who had been apprehended at the scene. T.T. 827. Crockton went to the police station that night and voluntarily spoke with Sergeant Debellis. T.T. 827-828. The police did not locate Petitioner that night.
Two days after the murder, on August 9, 2004, Eddie and Collier went to the police station where they were separately shown two photo arrays. Neither Eddie nor Collier identified anyone as the shooter. T.T. 521, 577-578, 828. Ten days after the murder, Siler went to the police station to report his observations with respect to the night of the murder. T.T. 651. Sergeant Debellis spoke to Eddie, Downs, Rivers, and Collier a second time in the days following the murder. T.T. 829-830.
On August 16, 2004, the police still had not apprehended Petitioner, and the Special Investigation Section ("SIS") became involved in the investigation to locate Petitioner. T.T. 830, 917. On Septemeber 13, 2004, after efforts to locate Petitioner were unsuccessful, SIS applied for and obtained eavesdropping warrants to monitor conversations on Petitioner's cell phones. T.T. 919-922. As a result of the information SIS obtained from monitoring Petitioner's calls, SIS apprehended and arrested Petitioner at the train station in Rochester on September 14, 2004. T.T. 830-831, 940-943.
On September 17, 2004, after Petitioner's arrest, Eddie, Collier, Siler, Downs, and Rivers participated in a police conducted line-up and separately identified Petitioner as the person who shot and killed Becoats on August 7, 2004. T.T. 523, 578-579, 651-652, 778-779, 833-837.
2. Petitioner's Motion for a Mistrial
After the People's fifth witness (Siler) testified, the trial court cleared the courtroom of all spectators, and directed the jury to return to the jury room so that the prosecutor could address the court on the record with respect to an issue that had arisen during the recess. The prosecutor informed the court that Robert Brown ("Brown"), the cousin of the victim who had been present in the courtroom as a spectator, told the prosecutor during the recess that he recognized juror number four, Chicquanda Sanders ("Sanders"), as a woman he had known for the past six years. T.T. 697, 710. Brown told the prosecutor that, before Petitioner was apprehended, Sanders had agreed to locate Petitioner for Brown because Brown wanted to kill Petitioner. T.T. 697.
After the prosecutor summarized the incident for the trial court, the trial court questioned Sanders concerning the truth of Brown's statements. Sanders denied knowing Brown, Petitioner, or the victim, and denied knowing anything about the encounter described by Brown. T.T. 699-705. In response to the court's inquiry whether she had a nickname, Sanders initially said that she "had a lot of nicknames," but upon further questioning conceded that one of her nicknames was "Chicky Bird." T.T. 701.
The court then questioned Brown, who stated that during the recess he told the prosecutor that he knew the fourth juror, who was known as "Chicky," and that she knew Petitioner. T.T. 706. Brown further stated that before Petitioner was arrested, he had asked Sanders to find Petitioner for him, and Sanders agreed to help Brown. T.T. 707-708. Brown stated that the conversation took place in Sanders' car, ...