The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Kevin Bryant ("Petitioner"), through counsel, 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 October 29, 2004, in New York State, County Court, Monroe County, convicting him, upon a jury verdict, of Murder in the First Degree (N.Y. Penal Law ("Penal Law") § 125.27[a][vi], [b]), and sentencing him to life imprisonment without the possibility of parole.
II. Factual Background and Procedural History
By Monroe County Indictment No. 2003/392, Petitioner was charged with first-degree murder (Penal Law 125.27[a][vi], [b]) for hiring Cyril Winebrenner ("Winebrenner") and Cassidy Green ("Green") to kill his wife, Tabatha Bryant ("Tabatha"). See Resp't Ex. A at A5-A7.
B. Trial, Verdict, and Sentencing
Late in November 2002, Green was starting an escort service*fn1 and looked for an attorney to help her start her business. She came to find Petitioner, a general practice attorney, by "pick[ing] his name out of the Yellow Pages." Trial Trans. [T.T.] 278-279. In December 2002, Green went to Petitioner's law office, where she encountered Winebrenner, who worked there. T.T. 279-280. Winebrenner was Petitioner's brother-in-law, as he was the step-brother of Petitioner's wife, Tabatha. Green and Winebrenner became romantically involved, and, approximately one month later, she moved in with Winebrenner, who was, at that time, living with Petitioner and Tabatha and their two young sons at 2 Pennicott Circle in Penfield, New York. T.T. 279-281. Green testified that, at the time she initially met Petitioner, she supported herself by working as an escort and selling cocaine. T.T. 281. Green testified that while she lived in Petitioner's home, Petitioner and Tabatha argued frequently. T.T. 286-289.
Keith Cromwell ("Cromwell") testified that he met Tabatha in January of 2003 and began a romantic relationship with her. According to him, the relationship progressed steadily from the time the two met until June 2003. T.T. 55, 58.
At some point, Petitioner learned of the relationship his wife was having with Cromwell and hired private investigator Louis Falvo ("Falvo") to gather evidence in June 2003. T.T. 76-77. Falvo engaged in surveillance of the couple, which continued until July 1, 2003. Thereafter, Falvo briefed Petitioner and provided him with video documentation of the couple. T.T. 80-99.
Weeks before Tabatha's death, Petitioner made several inquiries about how he could kill his wife. Green testified that Petitioner asked her whether $5000 would be enough money to "get rid of [Tabatha's] body" and whether Winebrenner would do it. T.T. 292-293. Green testified that she spoke with Winebrenner and later informed Petitioner that Winebrenner had indicated to her that $5000 was enough and that he would look into how to do it. T.T. 293-294.
At the end of June 2003, Vince Hoskins ("Hoskins"), who was living at a friend's trailer in West Bloomfield where Winebrenner and Green were also staying at that time, went with Winebrenner to Petitioner's law office on a criminal-related legal matter. T.T. 460-461. At Petitioner's law office, Hoskins testified that he saw Petitioner give a manila folder to Winebrenner, who opened it and removed the contents -- "pictures and papers with times and places written on them." T.T. 465. Hoskins testified that Petitioner said to Winebrenner, "here's the things that you asked for." T.T. 466. According to Hoskins, Petitioner showed him one of the photographs and said that it was his wife and her boyfriend. Petitioner "sounded agitated" and told Hoskins that when he was at his son's daycare, a boy approached him and asked if Petitioner was his son's "other daddy." T.T. 468. Petitioner then stated to Hoskins that "he was not going to lose his kids in a divorce." T.T. 469.
On July 4, 2003, Petitioner had a dinner party at his house, at which Tabatha and their two children were present. Green testified that she and Winebrenner attended the party. According to Green, Petitioner was "very angry" with Tabatha at the party. T.T. 297. Green testified that, after dinner, she went upstairs with Tabatha and Tabatha's young sons. As she was proceeding downstairs, she overheard Petitioner tell Winebrenner, "it's got to be done, it's got to be done now." T.T. 298. The following day, Petitioner had a cookout at Mendon Ponds Park, which was attended by Green, Green's parents, and Tabatha and her young sons. Green testified that Petitioner and Tabatha had an argument at the cookout, and Green left with Petitioner in Petitioner's car. T.T. 299-300. Green and Petitioner drove to the trailer in West Bloomfield, and Petitioner indicated that he needed to speak with Winebrenner. When they arrived at the trailer, Winebrenner came outside and the two men walked around the front of the trailer together. T.T. 300.
On July 8, 2003, Petitioner approached Timothy Hill ("Hill"), a friend of Jennifer Burch ("Burch"), one of Petitioner's clients. Hill testified that while he was picking up Burch following her meeting with Petitioner at his law office, Petitioner got into the passenger seat of the truck he was driving. T.T. 494-496. Petitioner asked Hill what type of work he did and inquired as to whether Hill did any "demolition work." T.T. 496. Hill testified that he asked Petitioner what he needed, to which Petitioner responded by asking if Hill could either "terminate his wife" or find him a gun. T.T. 497-498. Petitioner offered Hill $500 in advance and another $5000 afterwards, and then showed Hill a picture of Tabatha and his two children. T.T. 498-499. When Hill asked Petitioner why he wanted to kill his children's mother, Petitioner stated that she "crossed him" and he "couldn't deal with that." T.T. 503. Hill immediately told Petitioner to get out of the truck, and, as he did, Petitioner took out a "roll of bills" from a duffel bag, peeled off $500, and gave it to Hill. Hill took the money but testified that he did not intend to harm Tabatha or get Petitioner a gun. T.T. 503-504.
Green testified that, on the evening of July 13, 2003, she called Petitioner at home to determine whether Tabatha and Petitioner would be home and the location of the children. Petitioner told her that Tabatha was laying down on the couch, the kids were going to bed, and he was going to be home the rest of the night. Green testified that she then told Petitioner that "[Winebrenner] wanted to get everything done." Petitioner told her to call him when "[they] [were] on [their] way out." T.T. 305. At Petitioner's request, Green called Petitioner when they were leaving. T.T. 305-307. Just prior thereto, Winebrenner put rubber gloves in his pocket and polished the bullets for Green's .22 bolt action rifle before reloading it. Green testified that she and Winebrenner then got into her pink Monte Carlo, which was loud because it had no tail pipes or catalytic converter, and drove to Petitioner's home. T.T. 306-309.
When Green and Winebrenner reached Petitioner's house, all of the doors leading into the house were locked. T.T. 310-311. Green and Winebrenner went into the garage and looked through various envelopes that Petitioner had told Green would be under a filing box and would contain money, but there was no money in them. T.T. 311-312. Green and Winebrenner left Petitioner's garage and drove to a Noco gas station about two minutes from Petitioner's house where Green called Petitioner from a pay phone and told him that "everything was locked." T.T. 313. Petitioner told Green to come back and "that everything would be taken care of." T.T. 313. Green testified that, while on the phone with Petitioner, it was agreed that Winebrenner was to speak with Petitioner when he was done. T.T. 312-313, 1185-1186.
When Green and Winebrenner returned to Petitioner's house, "everything was open." T.T. 314. Winebrenner took the rifle and went into Petitioner's house alone while Green waited in the car. While Winebrenner was inside the house, Green heard a sound "like a small champagne cork." T.T. 315. When Winebrenner returned to the car, he was covered in blood. He put the gun in the back seat and put his jacket in a garbage bag. T.T. 314-315. Green drove to a gas station where Winebrenner changed his clothes. The duo drove to a second gas station where Winebrenner bought beer and cigarettes, and then drove to a third gas station where Green called Petitioner from a pay phone. T.T. 316-317. During one of the trips to the gas station, Green saw Winebrenner pull out an envelope of money and count $5000. Winebrenner did not have any money prior to going to Petitioner's house. T.T. 326. As they drove home, Winebrenner told Green that he shot Tabatha three times and "that he had to cut her to make her stop breathing." T.T. 325-326. Green also saw Winebrenner pull out a large kitchen knife, wipe it off, and throw it out of the window somewhere near Mendon Ponds Park. T.T. 327-328. Once they returned to the trailer where they were staying, Winebrenner said that he had to get rid of his clothes, so the two got back into the Monte Carlo. When they realized the car was not working properly, they returned to the trailer and asked Emily Gibbs ("Gibbs"), Hoskins's girlfriend, to borrow their car. T.T. 329. Green and Winebrenner put the bag of clothes and the gun in the borrowed car and drove to the Town of Bloomfield where Winebrenner discarded his jacket in a tunnel on Wesley Road and his t-shirt on Stetson Road. T.T. 330. They then drove to Silvernail Road and discarded Winebrenner's pants in some bushes. T.T. 331. Then, they went to Clay Street, where Winebrenner put the rifle in his car. T.T. 332. When they returned to the trailer, Winebrenner packed some clothes in an Army bag and put the bag in Green's Monte Carlo. Winebrenner left $2000 for Green on the bed. T.T. 333.
Meanwhile, just after midnight, Petitioner called 911 and reported that his wife had been shot. T.T. 814-815. Investigator James Beikirch, who responded to the crime scene, found no signs of forcible entry into Petitioner's home. T.T. 568. He testified that he entered Petitoner's home through the garage and saw Tabatha lying on a bed in the den. T.T. 564. Petitioner spoke with Road Patrol Deputy Bridget Davis at the end of the driveway. Petitioner told her that he had received a phone call from a female about 10 minutes before the shooting, but did not know who had called. T.T. 720-721. Petitioner told Deputy Davis that he and his wife were planning on going to a church retreat that coming Wednesday. T.T. 724. He told her that they had been having marital problems and that Tabatha had been having an affair with Cromwell. He told her that he learned about the affair during the last week of April and hired a private investigator, who had given him photographs of Tabatha and Cromwell together. Petitioner told her "that he wanted Tabatha to get rid of the boyfriend so that they could work on the two of them, and Tabatha said no." T.T. 725. Petitioner indicated further that he was contemplating divorce proceedings, and noted that he was an attorney. T.T. 724-726.
When Deputy Davis asked Petitioner about Tabatha's death, he told her that he was upstairs when he heard one or two shots. According to Petitioner, Tabatha screamed, "oh my God." T.T. 732. Deputy Davis observed that the garage door was open. Another deputy who had arrived at the scene, asked Petitioner about the open garage door, to which Petitioner responded that he probably forgot to close it when he took out the trash. T.T. 734. Petitioner stated that he came home from work at 10:30 p.m. that night and had starting taking the trash out. He then left to get a cup of coffee and when he came back, he took the rest of the garbage out. T.T. 735-737. Petitioner also told Deputy Davis that Winebrenner and Green had lived with them in the past, and Tabatha was stressed out about them living there and wanted to charge the two more rent. T.T. 744-745.
Investigator Paul Siena met with Petitioner at the crime scene and asked Petitioner to go with him to the police station. Petitioner agreed. T.T. 897. There, Petitioner told Investigator Siena that when he got home from work at about 10:30 p.m., he found his wife upstairs with the children asleep in his bed. Petitioner woke her up and asked if her she wanted to sleep downstairs, since she was no longer sleeping in the marital bedroom. T.T. 907-908. He said that he then took the garbage out and went to get a coffee at the Noco gas station. When he saw that it was closed, he returned home at about 11:15 p.m. T.T. 908-909. When he returned to his house, he saw that Tabatha was asleep on the sofabed. T.T. 909. He collected more garbage, took it out to the curb, and then got ready for bed. T.T. 910. Petitioner said that he would normally lock the doors before he went to bed, but was not sure if he had locked them that night. T.T. 974. Petitioner indicated that he had received a strange phone call at about 11:50 p.m. --- an automated MCI operator said he had a collect call. He accepted the call but the voice was muddled and he could not hear what the person was saying, so he ...