United States District Court, E.D. New York
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Stanley Osbourne ("Petitioner" or "Osbourne") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. On May 23, 2007, following a jury trial, Petitioner was convicted of first-degree assault (New York Penal Law § 120.10(1)). Petitioner was sentenced to a determinate term of imprisonment of fifteen years and a three-year period of post-release supervision.
In the instant petition, Petitioner alleges three violations of his constitutional rights: (1) the evidence at trial was legally insufficient to establish that he caused substantial physical injury to the alleged victim; (2) the admission of an audiotape of an anonymous caller's statements to a 911 operator violated defendant's right to confront witnesses under the Sixth Amendment; and (3) Petitioner was denied effective assistance of appellate counsel.
For the reasons set forth herein, the Court finds that Petitioner has not demonstrated any basis for habeas relief. The Court, therefore, denies the petition in its entirety on the merits.
The following facts are taken from the petition, as well as from the state court trial and appellate record.
1. Bonita Osbourne
Bonita Osbourne married Petitioner on August 26, 1995. (T. 970.) Throughout the course of their marriage, Petitioner competed in bodybuilder competitions and earned many trophies from these competitions. (T. 975.) However, as the marriage went on, Petitioner and Bonito Osbourne began to have marital problems. (T. 986.) Bonita Osbourne testified that Petitioner accused her of cheating on many occasions, constantly cursed at her and called her degrading names. (T. 986-87.) Bonita Osbourne also testified that when she would go out to dance clubs with her girlfriends, Petitioner would follow her there and make sure she was not unfaithful. (T. 989-90.) Some time during the first week of August 2001, Bonita Osbourne asked Petitioner to leave the house, and they became separated. (T. 995.)
2. August 17, 2001
On August 17, 2001, Petitioner asked Bonita Osbourne to see a marriage counselor with him, and she agreed. (T. 996.) Later that afternoon, Bonita Osbourne got into Petitioner's car believing that Petitioner was taking her to see a marriage counselor. (T. 1000.) Bonita Osbourne testified that, during the car ride, Petitioner took out a tape recorder and played a tape for her to hear. (T. 1001.) She testified at trial that she heard a man's voice on the tape recorder; Petitioner asked her whose voice it was and then threw the recorder at her head. (Id. ) Petitioner told her, "Bitch, you might as well jump out the car because I'm about to kill you." (Id. ) Petitioner stopped the car and bit her on her arm, which left a scar. (T. 1003-04.) Bonita Osbourne testified that, after being bitten by Petitioner, she looked down and saw a white handle next to the stick shift in between the front two seats of the car. (T. 1006.) She grabbed the white handle and saw it was a 12-inch knife. (T. 1006, T. 1069.) She then got out of the car, and as she did so, she saw Petitioner had a gun. (T. 1006.)
Outside of the car, Bonita Osbourne looked up at Petitioner and saw that he was struggling with the gun, which appeared to be malfunctioning. (T. 1009.) She saw Petitioner hitting the back of the gun when it would not work. (T. 1010.) She ducked behind the car and looked at Petitioner and saw that the gun was still not working. (T. 1009.) She ran away from behind the car, and heard a horn blowing and saw a man in a brown truck nearby. (Id. ) She was running towards the truck when she felt Petitioner grab her right shoulder and she saw the gun again. (T. 1011.) Bonita Osbourne testified that her last memory was of struggling with Petitioner while he held a handgun. (Id. ) She testified that the next time she woke up, she was in the hospital. (Id. )
A man named Saeed Arabian testified that he was driving in his truck when he saw a man and a woman "struggling" and saw that the man was holding the woman. (T. 789.) Mr. Arabian testified that the woman was saying, "Please help, please help." (T. 798.) He saw the man pushing the woman towards his car. (T. 811.) Mr. Arabian blew his horn to get the man's attention. (T. 797.) Mr. Arabian then parked his truck at a stop sign and opened his car door. (T. 799.) Before Mr. Arabian put his foot down on the ground, he saw that the man had something in his hand and was pointing it at him. (Id. ) Mr. Arabian could not recall with specificity what he saw in the man's hands, but after he saw it he drove away because he was scared. (T. 800.) After Mr. Arabian drove away, he pulled over to the side of the road and called 911. (T. 802.) Mr. Arabian waited for the police to arrive and, when they did, he showed them to the intersection where he saw the man and woman struggling. (Id. ) When Mr. Arabian returned to the intersection, he saw the woman lying on the ground bleeding. (Id. ) The man and the car were no longer there. (T. 816.)
3. Law Enforcement Response
At approximately 19:29 on August 17 2001, Police Officer Alex McKendry ("Officer McKendry") responded to a call and arrived at the intersection of Cherry Lane and Wildwood Road in Kings Point, New York. (T. 702.) When Officer McKendry arrived on the scene, he saw a "large pool of blood in the middle of the roadway dripping down the road." (T. 704.) A little further up the road, he saw a female with a large amount of blood "pouring down the side of her face and the front of her clothing." (Id. ) Officer McKendry described the woman as being a "heavier" woman in her thirties. (Id. ) Officer McKendry approached the woman and saw "a large wound on the top of her head with blood seeping out of it and large amounts of blood down her face and the front of her dress." (T. 705.) Officer McKendry testified that the woman was "in and out of a semiconscious state" and that she was not "really coherent." (Id. )
Joshua Charry, a paramedic, received a call to respond to Wildwood Road in Kings Point. (T. 882.) Upon arriving there, he met with Kings Point police officers and found a woman who was sitting against a tree at the side of the road. (T. 883.) He saw the woman had a bandage on the left side of her head and learned that a Kings Point police officer placed it there. (Id. ) He observed that the woman was sitting in a "daze" and only responded to his questions in "grunts" and "moans." (Id. ) Mr. Charry then placed the woman on a stretcher, placed a cervical collar around her neck, and loaded her into the ambulance. (T. 885.) Mr. Charry wrote in his report that "patient has soft tissue injury to left temporal area." (T. 946.) During the ride to North Shore University Hospital in Manhasset, the patient woke up and began to "yell and scream and swing and kick." (T. 886.) Mr. Charry testified that the patient became "combative" during the ambulance ride. (T. 915.) Mr. Charry stated that he learned the patient was Bonita Osbourne. (T. 914.)
Detective John Lapine of the Nassau County Police Department's Homicide Squad collected several metal parts at the scene. (T. 1260.) He collected a cartridge, which he described as a "shell casing of a bullet not fired." (T. 1272.) Detective James DiBeneditto with the Forensic Evidence Bureau of the Firearms Identification Section testified as an expert in firearms and was shown the metal parts that Detective Lapine testified about earlier in the trial. (T. 1498.) Detective DiBeneditto testified that the metal pieces recovered at the scene- including a firing pin and a firing pin spring-were from a semiautomatic handgun. (T. 1499-1501.)
4. Victim's Medical Treatment
Bonita Osbourne was in the hospital for a week. (T. 1022.) She testified at trial that she had a fractured skull requiring 30-40 staples in her head. (T. 1013.) X-rays and cat scans were performed on her. (T. 1023.) She was heavily medicated, leaving her sedated. (T. 1013.) Dr. Karen Black is the Chief of the Division of Neurology at North Shore University Hospital Manhasset and testified as an expert in neuroradiology. (T. 1202.) She testified that Bonita Osbourne's injuries included: (1) soft tissue swelling and hematoma overlying the skull (T. 1208.); (2) a brain contusion in the right frontal lobe (Id.); and (3) a comminuted fracture on the left side of the temporal lobe (T. 1222.). Dr. Black diagnosed Bonita Osbourne with a nonhemorrhagic contusion and explained this meant "the patient was hit in the left skull and as a result developed trauma to the brain." (T. 1230.) She further stated that Bonita Osbourne suffered a fracture as a result of "blunt force trauma." (Id. )
Dr. George DeNoto is a general surgeon at North Shore University Hospital Manhasset and was recognized by the Court as an expert in general surgery. (T. 1360.) Dr. DeNoto reviewed Bonita Osbourne's hospital records and testified to the following: (1) she suffered four lacerations in one area of her skull (T. 1367.); (2) her artery was lacerated (Id. ); (3) "200 milliliters of her blood was lost just in the sheets" (T. 1369); (4) 400 milliliters of blood was lost during the suturing of the arterial laceration (Id. ); (5) Bonita Osbourne required a blood transfusion (T. 1378.); and (6) she suffered a "comminuted skull fracture." (Id. ) Dr. DeNoto explained, "A fracture is considered comminuted when it's shattered. So there was basically a shattered fracture of the skull underneath the skin laceration." (Id. ) Dr. DeNoto testified that had Bonita Osbourne not received medical care, she would have died from this injury. (T. 1389.)
Detective Sergeant Steven Zeth of the Nassau County Police Department interviewed Bonita Osbourne at the hospital. (T. 1291.) During the interview, Bonita Osbourne's head was covered with bandages and there was bruising about her face. (T. 1297.) Detective Zeth also testified that her speech was slurred and "very, very labored." (Id. ) After leaving the hospital, Bonita Osbourne went to a "Safe House" where she experienced headaches that lasted for two months. (T. 1025.)
5. Petitioner's Arrest
On September 11, 2005, Constable Christopher Salmon of the the Peer Regional Police in Brampton, Ontario, Canada arrested Petitioner at 56 Gold Park in the city of Brampton. (T. 1408-1409.) After Petitioner was placed under arrest, Constable Salmon handcuffed him, searched him, read him his rights, and recovered some of Petitioner's property from that Canadian residence. (T. 1409.) The seized property included the following: (1) gym membership card in the name of Leroy Haughton; (2) Ontario driver's license in the name of Leroy Haughton; (3) Canadian social insurance number; and (4) Canadian CIBC Visa Card in the name of Leroy Haughton. (T. 1413.) Constable Salmon testified "these items belong[ed] to Mr. Osbourne" and Constable Salmon seized them from "his bedroom dresser." (T. 1410.) These items were admitted into evidence in addition to two wallets, a set of keys, and banking documents. (T. 1411-12.) At the time Petitioner was arrested, he was using two names, Stanley Osbourne and Leroy Haughton. (T. 1412.)
B. Procedural History
1. State Court Proceedings
a. Trial and Sentencing
A grand jury in Nassau County returned an indictment for charges of assault in the first degree (N.Y. Penal Law § 120.10(1)) and assault in the second degree (N.Y. Penal Law § 120.05(2))). Petitioner proceeded to trial by jury on February 26, 2007. (T. 619.) The prosecution presented fourteen witnesses. (T. 1673.) Petitioner did not testify at trial. (T. 1507.) After the prosecution rested, defense counsel moved to dismiss the charges set forth in the indictment "based upon the fact that the People have failed to make out a prima facie case." (T. 1510.) The court, believing there was "legally sufficient evidence to establish the offenses charged, " denied the motion. (T. 1511.) After the defense rested, defense counsel moved to dismiss both charges listed in the indictment stating, "the People have failed to prove either of those charges beyond a reasonable doubt as a matter of law." (Id. ) The court reserved decision. (Id. )
At the close of the trial, the court gave the following instructions to the jury:
Under our law, a person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to that person by means of a dangerous instrument... Serious physical injury means impairment of a person's physical condition which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of the function of any bodily organ. Dangerous instrument means any instrument, article or substance, including a vehicle which, under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or other serious physical injury.
(T. 1631.) On March 8, 2007, the jury reached a verdict, finding Petitioner guilty of the crime of assault in the first degree. (T. 1667.) Petitioner was sentenced on May 23, 2007. (S. 1.) Judge Jaeger stated he believed Petitioner showed a lack of remorse or empathy for Bonita Osbourne. (S. 24.) The court sentenced Petitioner to a determinate term of fifteen years' imprisonment and three years of post-release supervision. (Id. )
Petitioner, represented by counsel, appealed his conviction to the Appellate Division, Second Department, raising one issue: (1) the evidence at trial was insufficient to establish that Petitioner intentionally caused serious physical injury to the victim. (Appellant's Br. 18-27, December 3, 2008, ECF No. 7-17.)
On December 18, 2008, Petitioner wrote a letter to the Appellate Division seeking permission to file a pro se supplementary brief. (Letter dated December 18, 2008, ECF No. 7-15 at 1.) The pro se supplemental brief was filed on April 24, 2009 and it raised the following issue: Petitioner's constitutional right to confront witnesses guaranteed under the Sixth Amendment was violated when the trial court allowed a taperecorded 911 telephone statement to be admitted into evidence ( See Appellant's Supplemental Br., ECF No. 7-9 at 3-7.)
In a decision dated January 12, 2010, the Appellate Division, Second Department, affirmed Petitioner's conviction, holding the evidence was legally sufficient to establish Petitioner's guilt beyond a reasonable doubt. People v. Osbourne, 69 A.D.3d 764, 765 (N.Y. 2d Dep't 2010). Moreover, the court held that this issue was unpreserved for appellate review. Id. The court also ruled that the admission of the 911 telephone call did not violate Petitioner's Sixth Amendment rights because the ...