The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Royal Carmichael ("Carmichael" or "Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in Respondent's custody as the result of a judgment of conviction entered on May 2, 2006, in New York State Supreme Court (Monroe County) (Affronti, J.). Petitioner was convicted, following a jury trial, on charges of second degree (intentional) murder and criminal possession of a weapon.
II. Factual Background and Procedural History
On the evening of July 8, 2005, two unidentified gunmen robbed a crack house, allegedly belonging to Petitioner, located at 1 Langham Street in the City of Rochester. Later that night, Petitioner, angry about the robbery and fearful that the robbers would return, fired several shots from his .38 caliber revolver at a group of neighborhood boys standing across the street from the crack house. Petitioner wounded one of the boys, Anthony Williams; and killed another, twelve-year-old Frederick Lewis.
The grand jury charged Petitioner with the following crimes: two counts of Murder in the Second Degree (New York Penal Law ("P.L.") §§ 125.25(1), (2)) (intentional and depraved indifference murder); Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)); Criminal Possession of a Controlled Substance in the Third Degree (P.L. § 220.16(1)); two counts of Criminally Using Drug Paraphernalia in the Second Degree (P.L. §§ 220.50(2)-(3)); and Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1)).
Following the suppression of certain drug-related evidence, the prosecution withdrew the counts charging Criminal Possession of a Controlled Substance and Criminally Using Drug Paraphernalia. 1/10/06 Transcript at 2-3. Prior to jury selection, the prosecution withdrew the depraved indifference murder count. T.11-12.*fn1
1. The Prosecution's Case
Willie Joe "Dread" Brown, Jr. ("Brown") testified that some time in early 2005, he accepted Petitioner's proposal to use Brown's house at 1 Langham Street in Rochester as a "spot" out of which to sell crack cocaine. T.689-93. Pursuant to their agreement, Petitioner, whom Brown knew as "Slim," paid Brown money and cocaine for the use of the house. He placed Eric Thomas ("Thomas"), a/k/a "E" or "Black", in charge of running the house. T.693-94. According to Brown, "[e]very now and then [Petitioner] came . . . to pick up the money or drop off another package" of crack cocaine. T.694.
Brown testified that he and Thomas were both at 1 Langham Street on the night of July 8, 2005, when two armed men forced their way into the house. The intruders relieved Brown and Thomas of their cash and drugs at gunpoint, and then fled. T.694-701, 720-25, 736. Petitioner arrived shortly thereafter and became angry upon learning of the robbery. T.701-04, 728-29.
After speaking with Brown and Thomas, petitioner stepped outside where, according to Brown, a group of four or five neighborhood "kids" could be seen "coming up the sidewalk" on the other side of Langham Street. T.702-07, 732-33. When someone said, "[t]here they go right there," the boys "took off running" in the opposite direction T.707-08, 734-35. According to Brown, Petitioner "took off behind" the boys, raised a handgun, "extended" his arm, and fired a shot. T.707-09, 730-32, 734-35. At that point, Brown went back into the house. Minutes later, he heard three or four more shots. T.709-10, 732.
b. Anthony "AJ" Williams, Marcus McKnight, and Jose Jiminez
Williams, McKnight, and Jiminez were in the group at which Petitioner fired. On the night of the shooting, seventeen-year-old Williams and sixteen-year-old McKnight were walking McKnight's twelve-year-old brother, Lewis, home from the house of one of Lewis' friends. T.639-42, 740-44. On the way, Williams stopped at 1 Langham Street to buy some "weed" from Thomas. McKnight and Lewis waited across the street. T.642-45, 669-70, 676-77, 744-48.
As Williams was talking with Thomas at the entrance to 1 Langham, two unidentified gunmen ran past them and into the house. T.645, 671, 687-88, 747-50. Worried that the men intended to harm Thomas, Williams ran away from the house. McKnight and Lewis behind him. T.645-46, 671, 750-51.
A short time later, McKnight, Lewis, and Williams, accompanied by Williams' cousin, seventeen-year-old Jose Jiminez, returned to 1 Langham Street to check on Thomas. T.646-47, 752-54, 761, 777, 803-09, 818-21. The boys were near 1 Langham when they noticed that someone had extinguished the lights inside the house. They then saw a man come down the driveway and start shooting. T.647-50, 659-60, 664, 754-57, 763, 772-73, 782-86, 810-13, 821-22, 825. Jiminez identified the man as Petitioner, but Williams and McKnight did not see the shooter's face. T.649-50, 756.
The boys all fled, running through backyards and hopping fences. T.650-53, 665-66, 680-82, 757-63, 786-88, 813-15. Realizing that Lewis was missing, the boys searched and found him lying, presumably dead, in the backyard of 18 Langham Street, which is across the street and several houses down from 1 Langham Street.
T.653-57, 682-86, 760-61, 763-64, 790-92. The boys called 911, and the police arrived soon thereafter. T.656, 658-59, 684-85, 764-65.
Williams sustained a grazing bullet wound to his buttocks for which he was later treated at the hospital. T.653, 657, 799-800.
There were several other discrepancies in the boys' accounts. According to Williams, the shooter pointed the gun at the boys as he shot. T.649. Jiminez, on the other hand, testified that Petitioner shot "in the air". T.813, 825-27. Jiminez testified that a fifth boy named Joshua Thomas came with them, T.818-19, 831-32, while Williams denied that either Jiminez or Joshua Thomas was present. T.642-43, 672-74. McKnight also testified that he was told that Jiminez had a pistol, though McKnight never actually saw it, and Jiminez did not fire it. T.780, 793-94. For his part, Jiminez testified that he was not carrying a gun that evening. T.817. The boys' accounts differed as to how many shots were fired. Williams heard a total of approximately seven shots. T.651, 664-65. McKnight heard more than three or four shots. T.757, 762, 788-89. Jiminez heard a number of gunshots, but he could not say how many. T.813-15, 827.
Lewis was found dead by the police in the backyard of 18 Langham Street at approximately 11:30 p.m. T.451-59, 764-65, 834-39. According to the Monroe County deputy medical examiner who performed the autopsy, the victim was twelve-years-old, four-feet ten-inches tall, and weighed approximately 78 pounds. T.950-51. He died from a single gunshot wound to the chest. The wound was "through and through", that is, the bullet entered through the chest and exited through the back. T.951-53, 963. The medical examiner found no evidence that the entrance wound was a "contact wound," i.e., that the muzzle of the weapon was held in direct contact with the skin of the victim. T.952, 970, 1225-33. The entrance wound was "perfectly round" and one centimeter in diameter. T.958. No bullet projectile was recovered from the body.
T.953-54. The bullet that killed Lewis was probably .38- or .40-caliber, based on the small size of the entrance wound and the amount of damage done to the victim internally. T.960-63.
Although the police canvassed the area of the shooting, they were unable to recover the projectiles that wounded Williams and killed Lewis. The police did recover a spent bullet from a tree in front of 16 Langham Street. The hole in which it was located was 7.3 feet above the ground. T.490-95, 573-78, 631-32. The projectile found in the tree was so damaged, however, that the police could only ...