United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., Senior District Judge.
Antwon White, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. White is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Green Haven Correctional Facility. Respondent has answered, and White has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On October 16, 2006, a grand jury charged White with attempted murder in the second degree, two counts of assault in the first degree (one alleging intentional conduct and the other alleging indifference to human life), assault in the second degree, criminal possession of a weapon in the second and third degrees, and reckless endangerment in the first degree. On direct appeal, the Appellate Division of the New York Supreme Court recounted the following facts underlying White's indictment:
In the early morning hours of May 26, 2006, [White] and Jamil Jordan were driving in the City of Schenectady, Schenectady County, when they stopped to talk to a female acquaintance of Jordan. A male exiting a nearby party stopped to ask where [White] and Jordan were from and, upon being informed that they were from the City of Albany, the man shouted that information to the crowd also leaving the party in an apparent attempt to cause a confrontation. Jordan, the passenger, exited the car and started to fight with the man who had called out to the crowd. At some point thereafter, [White] exited the car and brandished an unlicensed handgun. [White] fired the handgun, FN1 allegedly striking the victim-a bystander-in the head, causing permanent brain damage and leaving the victim in an apparently irreversible persistent vegetative state.
FN1. [White] testified at trial that he fired a warning shot into the air and did not believe he shot the victim. [White] also asserted a justification defense claiming that he reasonably believed deadly force was necessary to defend himself or another from the imminent use of such force by persons in the crowd near the vehicle.
The trial court conducted a Wade  hearing on March 8, 2007, and April 17, 2007. Police Detective John Madden testified that he met with an eyewitness in a police station to conduct an identification procedure. The witness viewed a photo array and pointed to photograph number 2 within five to ten seconds. Detective Madden testified that he did not make any facial expressions, gestures, statements or threats to induce the witness to select a particular photograph. Detective Madden also testified that he had generated the six-photo array himself and had shown it to a number of other witnesses, none of whom had selected White's photo.
On cross-examination, Detective Madden testified that, each time the photo array was shown to the witnesses, the photos were in the exact same position. When asked why he did not vary the positions of the photos, he answered, "[j]ust procedurally that's something that we don't normally do, and in the instructions that you read to these people, it's pretty clear you tell them do not tell other witnesses that you have or have not identified anyone." Detective Madden did not ask any of the witnesses whether they had spoken to any of the other witnesses regarding the identification procedure although he believed that the witness who identified White was acquainted with at least one of the other witnesses.
Defense counsel moved to suppress the photo identification as unduly suggestive because Detective Madden did not vary the position of the photos. In the alternative, counsel asked to call as witnesses in the Wade hearing the identifying witness as well as the other witnesses to determine whether they talked to each other about the identification process. By written decision dated May 23, 2007, the court declined to suppress the identification testimony or to compel the production of the witnesses. The court ultimately concluded:
Testimony revealed that Det. Madden did utilize the same photo array, which he showed to multiple witnesses, who may be acquaintances. Only [the identifying witness] identified [White] as the alleged shooter. Det. Madden further testified that he did not ask [the identifying witness] whether he had spoken with the other witnesses when he made the identification. [The identifying witness] was the only witness at the police station when he identified [White] in the photo array. It is found that these findings of fact do not rise to the level of suggestiveness warranting production of an eyewitness to establish the propriety of the pretrial identification. In fact, given the testimony adduced at the hearing, it is determined that [White's] claim that [the identifying witness] might have spoken with the other witnesses, who were unable to identify [White] as the shooter, is purely speculative
[T]here is little or no risk that police suggestion led to misidentification. The Detective is trained and experienced and utilized a non-suggestive sampling of photographs of young black males and asked the witness whether he recognized any of the individuals in the photos. This procedure eliminated the possibility of suggestion.
On July 16, 2007, White proceeded to jury trial. At trial, a number of the victim's relatives testified about the victim's current condition, his actions prior to the incident, and events immediately after the shooting. White also testified on his own behalf. On the day White was scheduled to testify, the prosecutor informed the court that the victim's family intended to bring the victim into the courtroom as a spectator. Defense counsel argued that the prosecutor had conspired with the victim's family to prejudice the jury with the victim's appearance. Although he acknowledged that the victim's presence put the defense in a "[t]ough position, " the trial judge stated that he was unaware of any law permitting him to bar the victim from the courtroom unless he became disruptive. Defense counsel declined the court's offer to instruct the jury not to consider sympathy for the victim. Prior to White's testimony, the court removed the jury and stated on the record that "the victim made involuntary noises that does draw attention to people." The court then asked the victim's family to remove him from the courtroom.
At the conclusion of trial, the jury found White not guilty of attempted murder and first-degree intentional assault and guilty of the remaining five counts: first-degree depraved indifference assault, second-degree assault, second-degree criminal possession of a weapon, third-degree criminal possession of a weapon, and first-degree reckless endangerment. The court sentenced him to a determinate prison term of 25 years with 5 years' post-release supervision on the first-degree assault conviction. The sentences on the remaining counts ran concurrently.
Through counsel, White appealed his conviction to the Appellate Division, arguing that: 1) the trial court improperly precluded him from calling witnesses at the Wade hearing; 2) the trial court improperly submitted counts of both intentional and depraved indifference assault; 3) the trial court erred by allowing the victim to appear in court, admitting prejudicial testimony from the victim's family members, denying a mistrial, and refusing to give a curative instruction; 4) the prosecutor committed misconduct; and 5) the sentence was harsh and excessive. The Appellate Division affirmed White's conviction in a reasoned opinion issued on December 23, 2010.
Again proceeding through counsel, White sought leave to appeal to the New York Court of Appeals, asking the court to address whether: 1) the trial court erred by allowing prejudicial testimony from the victim's family; 2) the trial court improperly allowed the victim to appear in court; and 3) the prosecutor committed misconduct by eliciting prejudicial testimony from the family members, displaying the victim in court, making herself an unsworn witness by stating that she was not responsible for the victim's appearance, and encouraging the jury to disregard the elements of depraved indifference. The Court of Appeals summarily denied the request on June 10, 2011.
White timely filed a Petition for a Writ of Habeas Corpus to this ...