United States District Court, S.D. New York
REPORT AND RECOMMENDATION
JAMES C. FRANCIS IV, District Judge.
Donnell Alston brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court of robbery in the first degree in violation of New York Penal Law § 160.15(4). He contends that: (1) the trial court committed evidentiary errors, depriving him of a fair trial under the Sixth and Fourteenth Amendments; (2) newly discovered evidence has created a reasonable probability that he would have been acquitted; and (3) he received ineffective assistance of trial counsel when his attorney failed to adequately cross-examine a witness. For the reasons that follow, I recommend that the petition be denied.
A. The Crime
In the fall of 2005, twenty-five year old Amy Spiegel worked part-time in her mother's store, "Funtiques." (Trial Transcript ("Tr.") at 336-37). Funtiques was a small retail shop with one entrance, with jewelry kept in a display case at the back. (Tr. at 340-41).
On November 26, 2005, Ms. Spiegel opened the store at approximately 12:00 p.m. (Tr. at 338). At 2:00 p.m., a man entered and inquired about some necklaces for his wife. (Tr. at 347). Ms. Spiegel described the man as African-American, "about six feet, maybe a little taller, [with] a shaved head, a goatee and  wearing a black winter puffy jacket that came to about the knee." (Tr. at 348). He remained in the store for about 30-45 minutes, asking Ms. Spiegel questions and looking at jewelry in the display case. (Tr. at 347). As Ms. Spiegal showed the jewelry to him, he rested his hands on the display case. (Tr. at 350). During that time, there were no other customers in the store. (Tr. at 348). When the man turned to leave, Ms. Spiegel asked him his name, and he responded, "Donnell." (Tr. at 351).
The man returned to the store at approximately 4:00 p.m. on the same day. (Tr. at 353). At that time, there was only one other customer in Funtiques, whom Ms. Spiegel described as "an Asian girl in her mid twenties." (Tr. at 353). Ms. Spiegel briefly engaged the man in conversation. (Tr. at 353). After a few minutes, he told Ms. Spiegel that he had forgotten his cellphone in a coffee shop down the street, and he left to get it. (Tr. at 354).
The man returned a few minutes later. (Tr. at 355). In the interim, no other African-American males entered Funtiques. (Tr. at 355). The other customer was still in the store. (Tr. at 355). At that point, the man told Ms. Spiegel he wanted to look at the necklaces again. (Tr. at 355). She and the man returned to the showcase, and Ms. Spiegel removed some pieces of jewelry. (Tr. at 355-56). While the man was looking at the jewelry, he again placed his hands on the glass. (Tr. at 356).
As Ms. Spiegel was putting a necklace back in the showcase, the man reached over, grabbed the necklaces, and told her to get down on the ground. (Tr. at 357). At the same time, he pushed forward what appeared to be a gun in his pocket. (Tr. at 357-58).
Ms. Spiegel crouched behind the showcase, as did the other customer. (Tr. at 359). After the man left the store, she dialed 911. (Tr. at 360).
On December 15, 2005, police identified the petitioner, Donnell Alston, as a suspect, based on fingerprints lifted from the scene. (Tr. at 223-24). Police searched for Mr. Alston until May 11, 2006, when he was apprehended in Brooklyn and brought to a police precinct. (Tr. at 226). There, Ms. Spiegel viewed a lineup, following which Mr. Alston was arrested. (Tr. at 234-35).
B. Trial & Sentencing
Trial commenced on April 18, 2007 before the Honorable William Wetzel and a jury. (Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp. Memo.") at 3). The jury could not reach a unanimous verdict, and Justice Wetzel declared a mistrial on April 20, 2007. (Resp. Memo. at 3).
On September 24, 2007, a second jury trial began before the Honorable Charles H. Solomon. (Tr. at 194). At that trial, Ms. Spiegel testified as described above. The jury also heard testimony from Police Officer Penelope Seaman. At the time of the incident, Officer Seaman was a member of the New York City Police Department's Evidence Collection Unit, and she collected fingerprint evidence at the scene. (Tr. at 258, 260-61). The prosecutor asked Officer Seaman whether she could "determine how long a fingerprint has been on a surface or how fresh a fingerprint is." (Tr. at 263). Plaintiff's trial counsel, Andrea Moleterri, objected, arguing that the question called for an expert opinion from a lay witness. (Tr. at 263). In response, Justice Solomon asked Officer Seaman whether it was possible to determine how long a print has been on a surface, to which she replied, "[i]f it comes up immediately, it's been there - it's - it was just placed there." (Tr. at 263-64). She further explained that if a fingerprint is very "vibrant" or "vivid" when it is pulled from a surface, it is "extremely fresh." (Tr. at 264). Justice Solomon then overruled the objection. (Tr. at 264-65). Officer Seaman was then asked to describe the fingerprints she lifted from the scene of the crime, to which she responded, "Outstanding. Jackpot. I won the lotto. They were nice and fresh, extremely fresh, vibrant, brilliant." (Tr. at 266).
Prior to cross-examination, Ms. Moleterri was granted a sidebar, during which she reiterated her objection to Officer Seaman's testimony regarding the freshness of the prints. (Tr. at 274-81). She argued that Officer Seaman testified as to her opinion regarding a subject outside the ken of the jury, that she had not been qualified as an expert, and that she had not given any scientific basis for her opinion. (Tr. at 275-77). When her objection was again overruled, Ms. Moleterri asked for an opportunity to recall the witness for cross-examination after noon, to provide her with time to research the scientific bases for Officer Seaman's testimony. (Tr. at 277). Justice Solomon granted this request. (Tr. at 281).
In the afternoon, the prosecutor was permitted to continue his direct examination of Officer Seaman. (Tr. at 311). At that time, the witness testified that "[t]he quality of [a] print is whether or not it's a new/fresh print." (Tr. at 315). Ms. Moleterri objected and was again overruled. (Tr. at 315). Officer Seaman continued, explaining that the more recently a fingerprint is left, the more vibrant the print is when it is lifted from the surface. (Tr. at 316). In response, Ms. Moleterri reiterated her objections and argued that the witness had no formal training in the subject of fingerprint dating and that the described method is not accepted in the scientific community. (Tr. at 317-20).
On cross-examination, Officer Seaman acknowledged that there is no scientific way to date a fingerprint. (Tr. at 325). She further testified that she had never received any formal training in determining the age of fingerprints. (Tr. at 326). But she also testified that, based upon their brilliance, the fingerprints at the crime scene had been left within the 12-hour period prior to their being lifted. (Tr. at 329).
During the next recess, Ms. Moleterri requested a mistrial due to Officer Seaman's testimony, or, in the alternative, that her testimony be stricken either in its entirety or specifically as to fingerprint dating. (Tr. at 411-14). Justice Solomon denied the request for a mistrial, but did instruct the jury as follows:
You heard testimony on Monday from Police Officer Seaman that in her opinion the three latent fingerprints which she lifted from the glass counter inside 162 Allen Street were left there recently, and at one point in her testimony she said that it was her opinion that those fingerprints were left there within the preceding hours. I'm instructing you that this testimony cannot be considered by the jury. I'm striking it from the record. Officer Seaman was not ...