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Michael Smalls v. Mark Bradt

August 27, 2012

MICHAEL SMALLS, PETITIONER,
v.
MARK BRADT RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Michael Smalls ("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 April 25, 2008, in New York State, County Court, Erie County, convicting him, upon a jury verdict, of First Degree Assault (N.Y. Penal Law ("Penal Law") § 120.10[2]) and Endangering the Welfare of a Child (Penal Law § 260.10[1]).

II. Factual Background and Procedural History

A. Indictment and Pre-Trial

Erie County Indictment No. 02916-2006 charged Petitioner with one count of First Degree Assault (Penal Law § 120.10[2]), two counts of Endangering the Welfare of a Child (Penal Law § 260.10[1]), First Degree Criminal Contempt (Penal Law § 215.51[b][v]), and Fourth Degree Tampering with a Witness (Penal Law § 215.10[a]). Prior to trial, the People voluntarily moved to dismiss counts three (second count of Endangering the Welfare of a Child) and four (Criminal Contempt in the First Degree) of the indictment. See Ind. No. 02916-2006, dated 01/12/2007 at Resp't Ex. A; Trial Trans. [T.T] 16.

A Huntley hearing was held prior to trial, at the close of which the trial court denied Petitioner's motion to suppress the statements he made to police. Hr'g Mins. of 05/04/2007. Also prior to trial, the trial court held a combined Sandoval/Ventimiglia hearing. The trial court determined that the prosecution would be permitted to cross-examine Petitioner, if he testified, with regard to two prior convictions, and that the prosecution would be permitted to introduce evidence of his prior bad acts. T.T. 8, 10.

B. Trial & Sentencing

In November 2006, Dalisha Williams ("Williams" or "the victim") was living with her three young children, one of whom ---Martez Smalls ("Martez") --- was fathered by Petitioner. At this time, Petitioner and Williams were not in a relationship, but occasionally saw each other. T.T. 365, 374.

That fall, Williams' daughter, who was then a second-grade student, participated in a school fund raiser by selling candy. Williams had purchased $28 worth of candy from her, and Petitioner ordered $36 worth of candy. Petitioner did not send the money to the school. Instead, he intended to submit the money to Williams, who would transfer the money to the school to cover Petitioner's order. Between October and November 2006, Williams had discussed with Petitioner about seven times over the phone his responsibility to reimburse her $36 for the candy. While Williams' cousin was at Williams' home on November 20, 2006, Williams called Petitioner on her cousin's phone and asked Petitioner for the $36. Williams also informed Petitioner at that time that her son's foot had become stuck in the handle of a toy sword. After the telephone conversation between Petitioner and Williams ended, Williams' cousin left. T.T. 377-381. Shortly thereafter, Petitioner drove to Williams' house, went to the back door, and knocked. Williams opened the door halfway, but did not invite Petitioner inside. Petitioner pushed by Williams and entered her kitchen. Petitioner and Williams then walked into the living room together. T.T. 382-384.

Williams asked Petitioner for the money he owed her for the candy. Petitioner, who was smiling, began touching and kissing Williams. Williams did not want to have sex with Petitioner, and only wanted the money he owed her. Again, Williams asked Petitioner for the money and, in response, he smirked. Williams continued to ask Petitioner for the money, and they began to argue. Williams wanted Petitioner to pay her and leave, and she told him to "stop playing." T.T. 385-387. The verbal confrontation escalated into a physical altercation. Williams pushed Petitioner and then hit him. Petitioner struck Williams in the jaw with his fist. In response, Williams hit Petitioner back and then picked up a lamp and threatened to strike his head with it if he put his hands on her again. T.T. 387-388, 465.

Williams put the lamp down, and she and Petitioner stood face to face. Petitioner moved in and grabbed Williams' top lip with his teeth. Williams grabbed Petitioner's lower lip with her teeth. Petitioner then bit down hard on her lip and held it in his teeth. Williams let Petitioner's lip go, and she tried to pry Petitioner's mouth open for about five minutes. Petitioner eventually dragged Williams, by her lip, from the dining room area to the kitchen. He released her only after unlocking the kitchen door. Martez, who had been in the kitchen the entire time, was screaming. Finally, Petitioner let Williams go, opened the door, walked out on the driveway, smirked, and then swallowed. T.T. 388-394. Williams was bleeding from her lip area, and there was blood all over her clothes. T.T. 393.

Petitioner began running down the street, and Williams gave chase. Williams picked up a brick and threw it at Petitioner. The brick missed him and struck and shattered the sunroof of his car. Petitioner said to Williams, "Bitch, you going to jail," and then called the police. Martez continued to scream from inside the house, and Williams returned to the house to calm him down. T.T. 394-398.

Buffalo Police Officer Tara O'Neill ("O'Neill") responded to Petitioner's call. When she arrived, Officer O'Neill saw Petitioner waving to her. The sunroof of Petitioner's green Ford Taurus had been smashed, and there was glass on and around the car. O'Neill observed a small amount of blood on Petitioner's clothes. According to Officer O'Neill, Petitioner was irate and pointed down the street, saying, "look what the bitch did to my car." Officer O'Neill got out of her car and saw Williams about ten houses down the street. Petitioner got into Officer O'Neill's patrol car with Officer O'Neill and they drove down the street to Williams. T.T. 275-278.

According to Officer O'Neill, Williams was covered in "a ton of blood." T.T. 278. She observed that a piece the size of her thumbnail --- "a huge chunk" -- was missing from Williams' upper lip. Officer O'Neill testified that the sight of the damage to Williams' face "kind of took [her] breath away." BPD Officer Cedric Littlejohn, who had arrived at the scene shortly after Officer O'Neill, cursed out loud when he saw Williams' face. T.T. 278-279. Williams went inside her house, and Officer O'Neill then heard "a blood-curdling scream" from inside, presumably because Williams had not "seen her face, she hadn't looked, and she obviously had at that point." T.T. 279. At that point, an ambulance was called. T.T. 279-280. Officer O'Neill spoke with Williams, who told her that Petitioner had "grabbed her lip and drug her through a room to . . . a door, and then when he left the door, he actually took her lip and bit it right off." T.T. 279-280.

Paramedics, the fire department, and additional officers eventually arrived at the scene as well. Officer O'Neill asked Petitioner what had happened and asked him what he had done with the portion of Williams' lip that he had bitten off. The police, several firemen, and two of the paramedics began searching for Williams' lip. After searching both the interior and outside of the house for approximately ten minutes, they found nothing. T.T. 280-284.

Officer O'Neill told Petitioner that he would need to come to with her to the station house. She then handcuffed Petitioner, placed him inside the patrol car, and drove him to the station house. Upon their arrival there, Officer O'Neill spoke with Lieutenant Mark Michalek and provided him with a summary of the events. Lieutenant Michalek told Petitioner that, due to the seriousness of Williams' injuries, he would be placed under arrest. Petitioner was then read his Miranda rights. T.T. 288. Petitioner stated that he understood his rights and then explained to Lieutenant Michalek what happened, stating that he had "bit[ten] [Williams'] lip and [he] felt it in [his] mouth." T.T. 290.

Lieutenant Michalek asked Petitioner if he swallowed the piece of Williams' lip, to which he responded that he had spit out and then ran to his car. T.T. 286-291.

EMT Timothy Perrott ("Perrott"), who arrived at the scene of the crime at approximately 3:40 p.m., testified that he attempted to treat Williams, who was "hysterical," and that she had blood on her face and clothes. He testified that a large section of tissue was missing from Williams' upper lip. Perrott dressed the wound with gauze to stop the bleeding. He testified that, in his eight years of experience as an EMT, he had not seen a person with a piece of his/her face missing as a result of a bite. T.T. 353-361.

Nurse practitioner Jaqueline Collard ("Collard"), who was working in the forensic medical unit at the Family Justice Center in downtown Buffalo and documented injuries sustained by victims treated there, testified that, during her tenure, she had seen over 230 people. She testified that, although she saw quite a few bite marks, she had never seen one as severe as the Williams had suffered. T.T. 476-481.

Registered nurse James P. Vollmer ("Vollmer"), who was working in the emergency room at ECMC and treated Williams on the day of the incident, testified that "[t]his was the first time [he] [had] seen an upper lip bitten avulsion." T.T. 483. Vollmer testified that Williams returned to the ECMC emergency room on December 4 for a follow-up visit and that "she had increased pain, numbness and swelling." T.T. ...


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