The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Lamar Jermaine Roundtree ("Roundtree" or "Petitioner"), an inmate at Wende Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 11, 2011. The petition challenges the constitutionality of a judgment of conviction entered against Roundtree on July 19, 2006, in the New York State Supreme Court, Monroe County, convicting him, following a jury trial, of intentional murder and two counts of criminal possession of a weapon.
II. Factual Background and Procedural History
The convictions here at issue stem from a shooting on June 26, 2005, outside Classics Bar on Thurston Road in the City of Rochester. The intended target was Detron Parker ("Parker"), a man with whom Roundtree had an ongoing dispute over a necklace. Unfortunately, Petitioner missed Parker and instead hit Lisa Barker ("Baker"), an innocent bystander. Baker later died at the hospital.
Roundtree was indicted on two counts of second degree murder (intentional and depraved indifference), and one count each of second and third degree criminal possession of a weapon, respectively. Roundtree's jury trial commenced April 25, 2006.
1. The Prosecution's Case
Parker testified that he had known Roundtree "from around the neighborhood" since middle school. T.396.*fn1 They were once friends but, beginning around April of 2005, they had been engaged in a dispute over a gold necklace worth about $2,500, which Roundtree had borrowed from Parker but never returned. Roundtree told Parker that Parker would have to fight him to get back the chain.
T.396-400, 423-25, 465-67.
On the evening of June 25, 2005, Parker had gone to Classics Bar and Grill at 685 Thurston Road where he saw Roundtree wearing a white T-shirt and a red baseball cap. T.400-01, 423, 426, 461. Parker was wearing a red, white, and blue baseball jersey and a white "do rag". T.420-21. The two men made eye contact but did not speak to each other. T.401, 428, 617, 632.
At around 1:30 a.m., Parker left the bar and stood talking to a friend, Arthur Long ("Long"), on the sidewalk in front of a garage door on Thurston Road just north of, and directly next door to, the bar entrance. T.402-03. At some point, Parker noticed a lot of people trying to move out of the way. As Parker turned around, he made eye contact with a man, whom he identified in court as Roundtree. Roundtree was wearing a hooded sweatshirt and running across Thurston Road towards Parker. T.405-06, 408-09, 442. Petitioner was pointing a handgun--which Parker said may have been black with a brown handle--at Parker. T.405-07. As Parker dove to the ground, he saw Roundtree (who was about six feet away) fire two shots at him. T.411-12. The second shot was fired at a distance of "[n]ot even two feet" from Parker. T.409-12. Parker tried to crawl beneath a car parked in front of the garage door, and watched as Roundtree ran back across Thurston Road. T.412, 428-29. After the shooting was over, Parker thought he had been shot, so he had a friend drive him to the hospital where he was treated for a dislocated thumb. T.415-16.
When questioned on cross-examination about three pending criminal charges and one prior uncharged bad act, Parker invoked his Fifth Amendment privilege against self-incrimination. T.443-50.
A second eyewitness, Tasharra Brock ("Tasharra"), confirmed Parker's account of the shooting. After arriving at Classics at about 11:30 p.m., Brock she spoke with a man wearing a "red, white and blue jersey," whom she identified in court as Roundtree.
T.522-524. Roundtree recommended that she "not . . . buy the drink because he was going to shoot the bar up." T.523. Brock told him not to do it, and then walked away and told her sisters about Roundtree's threat. T.524.
Later, as she was standing on the sidewalk outside the bar talking with her sisters, Brock saw a car parked in the driveway in front of the garage door next to the bar entrance with about ten people were standing around the car. T.526-27. Brock saw Roundtree jog across the sidewalk toward the car parked by the garage door. He was wearing a hooded sweatshirt and holding a handgun. T.527-30, 537, 543.
When he reached the car, Brock saw Roundtree fire three shots and run back across Thurston Road, heading south towards Brooks Avenue. T.530-33, 537-39, 543-44. Brock then heard three or more shots, but she could not determine the source. T.534.
A third eyewitness, Darrio Henry ("Henry"), tentatively identified Roundtree as the shooter. Henry, who had known Petitioner "[s]ince grade school," and had seen him "a million times" since then, testified that he saw Petitioner and Parker staring at each other inside Classics on the night of the shooting.
T.614-17, 621, 632. Later, as Henry was leaving the bar, but before he exited the front door, he saw a man in a hooded sweatshirt, carrying what looked like a black gun, run across Thurston Road. The man ran out of Henry's sight, but Henry heard two gunshots.
Henry then saw the man in the hooded sweatshirt run toward the intersection of Thurston Road and Brooks Avenue. T.619-23, 633-34. At around that time, Henry heard three more shots fired. T.623.
Although Henry only saw "part of" the man's face due to the hood, Henry recognized him as Petitioner, based on the man's build and gait. T.619-21, 626, 632-33. Although Petitioner and his brother, LaShawn, looked similar to each other, Henry was "sure" that the man in the hoody was not Petitioner's brother. Henry did not see LaShawn at Classics that night. T.630-31.
A fourth eyewitness, Kanza Williams ("Williams"), identified Petitioner as having stood across the street from Classics wearing a hooded sweatshirt. However, Williams did not see the shooting.
Williams had been at Classics with her ex-boyfriend and her mother. Williams saw her ex-boyfriend talking to Petitioner, whom she identified in court. Petitioner was wearing a red and white basketball jersey, a baseball cap, and gold caps on his lower teeth. T.308-11, 320-23. Williams left Classics at around 1:30 a.m. and walked across the street to the Rite Aid Pharmacy parking lot to her car.
There, Williams noticed Petitioner standing alone, "kind of hidden" behind a large bush next to the parking lot. T.309, 312-15, 333. She "glanced" at Petitioner, but did not "stare directly in his face." T.328-29, 331-32. He was wearing a hoody pulled over his head, and had his right hand positioned by his waistband. T.314-17, 322. It "looked really suspicious" to Williams. Having "a feeling that something was about to happen," Williams phoned a friend who was inside the bar and told her to leave. T.317. Williams then picked up the rest of her party, commenting to her ex-boyfriend that "[t]he guy that I saw in the bushes looks exactly like your friend you were talking to." T.329-31. They drove away before any shooting took place. T.318-19.
Several other eyewitnesses either saw Roundtree at Classics on the night of the shooting or witnessed the shooting, but did not see the shooter's face and thus could not identify Petitioner as the shooter. Dumka Viator ("Viator") testified that at the time of the shooting, he was sitting in his car, parked facing north on Thurston Road across the street from Classics. T.471-73. Viator noticed a car parked in the driveway in front of the garage door next to Classics. One woman was sitting on the hood of the car talking to another woman standing nearby. T.473-74, 492, 494-95. Viator saw a man "tiptoeing" right in front of Viator's car, wearing a hoody and carrying a "silver-ish" pistol. T.475-78, 491-92, 496, 498. Viator could not see the man's face, and "guessed" that the man was around five feet, ten inches tall.
T.475, 498, 500. The man crossed Thurston Road in a "slight jog," bumped into a man talking on a cell phone, and then fired one shot when he was two or three feet away from the woman sitting on the car. T.478-81, 487, 489-90, 493-94, 499. The woman fell to the ground. T.480.
Viator saw the shooter then run south on Thurston Road and across Brooks Avenue towards Snuffy's Birdland, a restaurant on the corner of Thurston and Brooks. T.482-84. Viator believed that two more shots were fired after the shooter ran across Brooks Avenue, but he could not tell where the shots came from. T.484-85, 496.
Leslie Gordon ("Gordon") testified that, at around 1:40 a.m., she was standing outside Classics talking with her childhood friend, Lisa Baker, who was sitting on the hood of a car parked in front of the garage door just north of Classics. T.553, 557-58, 575. Since it was a warm night, a lot of people were milling around outside the bar. T.558-60, 577. As Gordon and Baker were preparing to leave, Baker got off the car. Gordon heard a loud gunshot from "really close," "right behind" Gordon, and then, within seconds, heard "a few more shots" coming from "a little further away," "from like Brooks Avenue." T.561-65, 568-69, 578-81. Gordon did not see the shooter. T.564.
Shawndell Hemphill ("Hemphill"), the bouncer at Classics, recalled Petitioner, whom he had seen on previous occasions, entering the bar on the night of the shooting at approximately 1:00 a.m. with a man named "Feon." T.502-03, 520. Hemphill described Petitioner as "maybe six feet, two or three inches" tall, and weighing "maybe 250 pounds". T.514-15. When Petitioner left the bar about an hour later, Hemphill saw him walk south towards the intersection of Thurston and Brooks. T.504-05, 513. Later, while Hemphill was standing just inside the bar's front door, he saw (through the bar's window) a man in a hoody come across the street and start shooting with a gun that "[m]ight have been silver."
T.506-08, 511, 517-18. Hemphill did not see the shooter's face, however. He heard "maybe four or five" shots, but stayed inside the bar during the entire incident. T.510, 517. Hemphill then saw the man run towards Brooks Avenue in the direction of Snuffy's Birdland. T.510-11, 513.
Shawn Anderson ("Anderson") testified that, between 1:30 and 2:00 a.m., he was sitting in his SUV parked on Thurston Road, next to some bushes, just across the street from Classics. T.337-39. He noticed a black man, about six foot two or three inches tall, stooping in front of Anderson's SUV. The man was facing Classics, wearing a long-sleeved hoody with the hood up. T.336-40, 342, 344, 349-50, 355-57. Anderson could not see the man's face, but observed that he was holding a large "chrome-colored" handgun. T.340-41, 344. The man at first moved slowly, in a "stalking" manner, and ran across Thurston Road towards Classics, where some people were standing. Anderson then heard, but did not see, one shot fired.
Walter Monroe ("Monroe") testified that at about 1:30 a.m., he was sitting in his car, parked on Thurston Road outside of Classics, waiting for a friend. T.358-62, 368-69. Monroe saw a man come across Thurston Road from the sidewalk adjacent to the Rite Aid parking lot. The man had a "sneaky" or "lurking" manner, wore a hoody with the hood up, and was five feet, eight inches to six feet tall. The man, who passed five to ten feet in front of Monroe's car, was carrying a "very nickel plated or shiny gun" in his right hand. T.364-67, 373. Monroe could not see the man's face, however. T.366. Monroe promptly called his friend, Gregory McKnight ("McKnight"), did a U-turn, and drove north on Thurston Road. After hearing two shots, he drove back to the bar. T.367-73.
McKnight testified that he left Classics near closing time after receiving a call from Monroe. T.375-78. McKnight walked around the corner and proceeded west on Brooks Avenue, when he heard at least two or three gunshots coming from the area of the bar. After McKnight got into his car, parked on Brooks Avenue, he heard two or three more shots coming from "real close." T.378-83, 393. Because McKnight was ducking for cover, he did not see who fired the shots. After the shooting stopped, McKnight saw a "guy with a chrome gun with a hoody on his head," about five feet nine inches to six feet tall, running east on the Brooks Avenue sidewalk. T.383-85.
f. The Forensic Medical Evidence
After the shooting, Baker was responsive but in critical condition. T.184, 189-90, 204-06, 230-33, 565-70. At 2:02 a.m., paramedics transported her to Strong Memorial Hospital, where she died. T.208, 233-34, 570. Based on the autopsy, Baker was found to have died of a gunshot wound to the torso. Specifically, a single bullet entered her back; passed through her rib cage, right lung, diaphragm, and liver; and exited through her abdomen. No bullets or projectiles were recovered during the autopsy. T.769-79.
g. The Ballistics Evidence
Examination of a steel garage door adjacent to Classics revealed a hole about sixteen inches off the ground. There had been no holes in the garage door prior to the shooting. The police also discovered a "bullet strike mark" on the pavement in an alleyway or "tunnel" behind the garage door. A projectile was recovered on the ground in the rear of the alleyway, along with a plastic bucket with two bullet holes. T.206-18, 223-24, 264-65, 270-72, 292-300, 547-49. The prosecution's firearms examiner, John Clark ("Clark") testified that the projectile could have been fired from a .38 Special or .357 Magnum revolver, but it could not have been fired from a .380 caliber semi-automatic pistol. T.666-68, 701-02, 730, 736-37. The parties stipulated that blood found on the projectile in the alleyway matched the victim's DNA. T.646-51.
Examination of the victim's blouse revealed partially burned gunpowder around the bullet holes, predominantly those around the bullet hole on the back of the blouse. T.670-73, 756-57. This indicated that the bullet was fired from no more than five to six feet away. T.268-69, 277, 283, 668-73, 701, 710-11, 713-14, 734, 736, 739, 756-64.
Clark later conducted a reconstruction at the scene to determine the trajectory of the fatal bullet based on the location of the hole in the garage door and the strike mark on the pavement inside the alleyway. T.674-78, 681-85. He determined that, based upon the height of the firearm if fired from different distances from the garage door, the gun would have had to have been fired more than seven feet of the ground if the shooter was twenty feet away from the garage door. T.686-87. The street was more than thirty feet from the garage door. Thus, the fatal bullet could not have been fired from a passing car or from across the street, but must have been "fired from close range." T.685-87, 691-94, 728, 732-33, 740-41.
The police also discovered three .380-caliber shell casings on the Brooks Avenue sidewalk approximately twenty to forty feet west of Thurston Road, just around the corner from Classics. T.191-92, 249-50, 255-57, 280-81, 289-92. The firearms examiner determined that the shell casings were all fired from the same .380 caliber semi-automatic pistol. T.660-66, 705-06. According to the firearms examiner, certain damage to a glass window at Snuffy's Birdland, at the corner of Thurston Road and Brooks Avenue, could have been caused by bullets fired from a .380-caliber pistol on Brooks Avenue. T.673-74, 694-98. However, bullets causing the damage at Snuffy's could not also have caused the hole in the garage door on Thurston Road. T.698-700, 734-36.
a. Petitioner's Testimony
Petitioner testified on his own behalf that he was not at Classics or in the nearby area on the night of the murder but instead spent the night riding around alone in his car. He went to a bar at about midnight, and then went to his girlfriend's house at about 12:45 a.m., although she was already asleep. T.948-49, 956-57, 959-60. Because he was alone, nobody could verify his whereabouts. T.961. He also claimed that he is frequently mistaken for his brother, LaShawn, whom he described as 5'11" or 6'0" and approximately 220 to 225 pounds. T.947. Petitioner described himself as "[l]ike six-four" and 275 to 280 pounds.*fn2 T.947. Petitioner denied that he and Parker had had a dispute over a gold necklace, but admitted that he and Parker had been in a fight two years earlier. T.953-54, 958. Petitioner's supervisor testified that petitioner worked a full forty-hour week following the shooting. T.840.
b. Other Defense Witnesses
J.W. Hardy, Jr. ("Hardy") testified that he was at Classics on the night of the murder, where he saw and greeted his barber, who happened to be Petitioner's brother, LaShawn Roundtree ("LaShawn").
T.793-95, 804-05, 823-25. Hardy testified that LaShawn looks similar to Petitioner. T.794. Hardy also saw Parker in the bar, wearing a white "do-rag." T.792-93. When Hardy was outside the bar smoking a cigarette, he heard a "big boom." T.795, 797, 809. Turning around, Hardy saw Parker fire a handgun and "[saw] a lady fall." T.798, 809-12. According to Hardy, Parker was facing toward the garage door when he fired. T.825-29. Parker then "dropped the gun, shook his hand, reached down and grabbed the gun." T.798, 810-12. Parker and another man ran across the street, got into a car, and drove north. T.799, 812-13. Hardy never told ...