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McCrae v. Lee

United States District Court, E.D. New York

April 7, 2017

DEION MCCRAE, Petitioner,


          MARGO K. BRODIE, United States District Judge

         Petitioner Deion McCrae brings the above-captioned petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet. for Writ of Habeas Corpus (“Pet.”), Docket Entry No. 1.) Petitioner's claims arise from a judgment of conviction following a jury trial in the Supreme Court of New York State, Kings County (the “Trial Court”) on charges of murder in the first and second degrees, attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree. Petitioner was convicted of attempted murder in the second degree and criminal possession of a weapon in the second degree. (Id. at 5.) The jury was unable to reach a verdict on the charges for murder in the first and second degrees and assault in the first degree. Petitioner was sentenced to a term of twenty-three years of imprisonment for attempted murder and fifteen years of imprisonment for criminal possession of a weapon, to run concurrently. (Id.) Petitioner appealed his conviction to the New York Supreme Court Appellate Division, Second Department (the “Appellate Division”). Petitioner was subsequently retried and acquitted on the murder charge, after which he requested permission from the Appellate Division to file a supplemental brief introducing his acquittal as new evidence relating to his convictions. (Id. at 5-6.) The Appellate Division denied Petitioner's request. (Decision & Order dated Nov. 18, 2009, Pet. Ex. 4 at 3, [1] Docket Entry No. 1.) The Appellate Division affirmed Petitioner's conviction. People v. McCrae, 895 N.Y.S.2d 101, 103-04 (App. Div. 2010). The Court of Appeals denied Petitioner's request for leave to appeal the Appellate Division's decision.[2]People v. McCrae, 14 N.Y.3d 842, 842 (2010).

         In the instant petition, Petitioner seeks a writ of habeas corpus on the following grounds: (1) the Trial Court's consolidation of two indictments in which Petitioner was charged with crimes related to separate incidents violated Petitioner's Fifth and Fourteenth Amendment rights to a fair trial; (2) the cumulative effect of the Trial Court's evidentiary rulings violated Petitioner's due process rights under the Fifth and Fourteenth Amendments, as well as his Sixth Amendment right of confrontation; (3) the court that decided Petitioner's first Section 440 motion erred in holding that, by denying Petitioner leave to file a supplemental brief after his acquittal on the murder charge, the Appellate Division made a determination on the merits that Petitioner's acquittal did not constitute new evidence entitling him to a hearing on his motion to vacate his prior convictions; (4) the court that decided Petitioner's first Section 440 motion erred in holding that, notwithstanding the Appellate Division's determination, Petitioner's acquittal for murder in a later trial did not constitute new evidence; (5) newly discovered evidence regarding a cooperating witness reveals that the government knowingly used false or misleading testimony at trial, in violation of Petitioner's right to due process; and (6) the same newly discovered evidence reveals that the government failed to disclose favorable evidence under Brady v. Maryland, 373 U.S. 83 (1963), in violation of Petitioner's right to due process. (Pet. at 7-8; Amended Pet. 1- 2.) For the reasons discussed below, the petition is denied.

         I. Background

         a. Incident and arrest

         The evidence at trial established that on December 19, 2004, at approximately 1:00 PM, the victim, James McCrae, [3] went to the apartment of Latisha Washington, [4] located at 1605 Fulton Street, Brooklyn, New York, in order to provide her with money for their daughter's school fees. (Affidavit in Supp. of Resp. Br. (“Resp. Aff.”) 1-2, Docket Entry No. 4.) As the victim stood outside Ms. Washington's home, he was shot in the face. (Resp. Aff. 2.) At the hospital, the victim informed the police that he was shot by a man named “Skip, ” who was involved in a relationship with Ms. Washington. (Pet. 9.) Police showed the victim a photographic array, from which the victim identified Petitioner as the individual who shot him. (Id.) The victim also informed the police that the shooter drove a black Jeep Liberty with New Jersey license plates, for which the police found a rental agreement identifying Petitioner as the renter. (Id.) On January 25, 2005, the police arrested Petitioner for the shooting. (Id. at 1.) Petitioner was charged with attempted murder in the second degree, assault in the first, second and third degrees, and criminal possession of a weapon in the second, third and fourth degrees. (Id. at 2.) The victim testified before a grand jury, identifying Petitioner as the man who shot him. (Resp. Aff. 2.)

         On September 10, 2005, while the charges were pending, the victim was shot multiple times in Brooklyn. (Resp. Aff. 2.) Before he died, the victim informed an officer on the scene that he had been shot by an individual named “Skip.” (Pet. 2.) On October 20, 2005, Petitioner was indicted on charges of murder in the first and second degrees and criminal possession of a weapon in the second and third degrees. (Id.)

         b. Charges and trial

         i. Consolidation of indictments

         On November 4, 2005, the State of New York filed a motion to consolidate the two indictments pursuant to New York Criminal Procedure Law sections 200.20(4) and § 200.20(2)(b)-(c), arguing that consolidation was in the public interest, that evidence of each shooting would be admissible in both trials, and that the charges were defined by the same or similar statutory provisions. (Mot. to Consolidate Indictments, Resp. Ex. 2 at 12-16, Docket Entry No. 5.) Petitioner's counsel opposed the motion, arguing that consolidation would deprive Petitioner of his Sixth Amendment right to confrontation and would violate his Fourteenth Amendment right to due process. (Pet. 3.) On March 16, 2006, the Trial Court granted the motion to consolidate the indictments, holding that the indictments were joinable under New York Criminal Procedure Law section 200.20(2)(c) because the offenses charged were defined by the same or similar statutory provisions. (Memorandum dated Mar. 16, 2006, Resp. Ex. 2 at 44.)

         ii. Pre-trial hearings

         The Trial Court conducted combined pre-trial hearings on November 2, December 4, December 5 and December 6, 2006, during which the investigating officers testified and Petitioner moved to suppress the victim photo identification of Petitioner that occurred at the hospital. (Pet. 8.) The following evidence was presented during the hearing.

         Detective Anthony Phillips interviewed the victim in the hospital after the first shooting. (Hr'g Tr. dated Nov. 2, 2006 (“Nov. 2 Tr.”) 4:3-29:10, Docket Entry No. 16.) Detective Phillips testified that the victim had identified his shooter as “Skip, ” a man in a relationship with Ms. Washington, and that the victim had identified Petitioner's photograph in a photographic array. (Id. at 8:14-14:25.)

         Sergeant Steven Sauer spoke to the victim in the immediate aftermath of the second shooting, before his death. (Id. at 29:12-45:23.) Sergeant Sauer testified that on September 10, 2005, at approximately 1:45 AM, he responded to a call at 759 Chauncey Street in Brooklyn. (Id. at 30:21-31:16.) He observed the victim alone in the driver's seat of a maroon car, suffering from multiple gunshot wounds. (Id. at 21:17-33:13.) He described the victim as being in visible distress and in significant pain. (Id. at 33:5-13; 34:21-35:31; 37:20-38:6.) Sergeant Sauer asked the victim if he knew who shot him, and the victim stated that “Skip” shot him. (Id. at 34:10-18.) He testified that he informed the victim that there was a high likelihood that he would not survive his injuries. (Id. at 35:4-11.) Sergeant Sauer spoke to two civilians present at the scene, identified only as “Peewee” and “Limbert, ” both of whom told Sergeant Sauer that “Skip” was the individual who previously shot the victim on December 19, 2004. (Id. at 36:1- 25.) Sergeant Sauer then asked the victim if the shooter was the same person who had shot him on the previous occasion, and the victim responded that he was. (Id. at 37:10-19.)

         Detective Jennifer Bille was one of the lead detectives in the murder case. (Hr'g Tr. dated Dec. 5, 2006 (“Dec. 5 Tr.”) 1:12-75:20, Docket Entry No. 16.) Detective Bille testified that, during her investigation, she spoke to the victim's ex-wife, Tracy Stokes. (Id. at 4:13-16.) During this conversation, Stokes informed Detective Bille that an individual known as “Termite Mike” had approached the victim and offered him twenty thousand dollars to drop the charges against Petitioner stemming from the first shooting. (Id. at. 5:17-6:6.) Detective Bille also testified about an interview she conducted with an individual referred to as “[W]itness [N]umber [O]ne.” (Id. at 7:8-8:23.) According to Detective Bille, Witness Number One related a conversation he had had with Petitioner, in which Petitioner informed the witness that he was going to “take care” of his attempted murder trial. (Id. at 8:14-17.) Detective Bille testified that Witness Number One asked Petitioner what he meant by this, and Petitioner stated that he was going to kill the victim. (Id. at 8:18-23.) Witness Number One informed Detective Bille that Petitioner knew that the victim was the only witness planning to testify against him. (Id. at 9:14- 23.)

         After the officers completed their testimony, the Trial Court heard arguments on Petitioner's motion to suppress the photographic identification. After arguments, the Trial Court rejected Petitioner's motion to suppress evidence of the photographic identification but denied the People's request to offer direct evidence of the photographic arrays at trial. (Memorandum dated Jan. 23, 2007 (“Jan. 23 Mem.”), Resp. Ex. 2 at 50-51.) The Trial Court held that the People would be permitted to offer evidence of the identification only if Petitioner's counsel “somehow . . . open[ed] the door.” (Trial Tr. (“Tr.”) 4:3-7, Docket Entry Nos. 16-1-16-5.) The Trial Court also found that the People had established by clear and convincing evidence that Petitioner's misconduct had caused the unavailability of the victim, and therefore held that the victim's grand jury testimony would be admissible at trial. (Jan. 23 Mem., Resp. Ex. 2 at 62- 64.) The Trial Court further ruled that the victim's statement to Sergeant Sauer was not inadmissible hearsay because it qualified as a dying declaration. (Jan. 23 Mem., Resp. Ex. 2 at 52-56.)

         iii. Trial

         At trial, the People called officers and detectives involved in the investigations of the December 19, 2004 and September 10, 2005 shootings to testify to the evidence gathered at both crime scenes. (Tr. 427:1-440:5, 456:22-481:20.) This evidence included four nine-millimeter shell casings discovered at the scene of the first shooting and recovered bullets and bullet impact marks in the victim's vehicle discovered at the scene of the second shooting. (Tr. 427:1-440:5, 456:22-481:20.)

         Denise Hochoy, a court stenographer, read into the record the victim's grand jury testimony regarding the first shooting. (Tr. 493:12-515:17.) In this testimony, the victim stated that he knew Petitioner, that they had met a few times, and that Petitioner was Ms. Washington's boyfriend. (Tr. 500:2-25.) The victim also identified Petitioner as both “Skip” and “Deion McCrae.” (Tr. 500:2-8.) The victim told the grand jury that he went to 1605 Fulton Street on December 16, 2004 in order to give Ms. Washington money for their daughter's tuition. (Tr. 498:21-501:4.) While he was speaking to Ms. Washington, he felt something hit him in the face, at which time he turned around and saw Petitioner shooting a gun. (Tr. 503:21-505:13.) The victim testified that he was shot in the face, leaving a bullet lodged in his jaw and resulting in some paralysis on his left side. (Tr. 505:17-24; 508:4-16.)

         Corey Washington, Ms. Washington's uncle, testified to conversations he had had with both the victim and Petitioner. (Tr. 612:6-728:18.) Mr. Washington testified that he knew Petitioner, and that he had sold five guns to Petitioner, including a nine-millimeter firearm.[5] (Tr. 621:11-623:24.) Mr. Washington had previously been arrested for dealing drugs and was in federal custody at the time of the trial due to his involvement in illegal gun sales. (Tr. 616:12- 619:1.) He testified that he was cooperating with federal prosecutors and providing them with information about his associates. (Tr. 616:12-619:1; 620:19-621:10.)

         Mr. Washington testified that one of his gun-dealing associates, Johnette Dowdell, was arrested by federal agents in connection with illegal gun sales. (Tr. 628:24-629:13.) After her release, Dowdell informed Mr. Washington that the federal government wanted information about the guns they had sold and asked him to find out whether any of the guns he had sold had been used in a crime. (Tr. 629:18-630:22.) In April of 2005, pursuant to his conversation with Dowdell, Mr. Washington spoke to the victim regarding the shooting in which he was injured. (Tr. 632:18-633:1.) Mr. Washington then spoke to Petitioner and asked him whether he had shot the victim with a gun purchased from Mr. Washington. (Tr. 633:2-634:8.) Petitioner stated that he had not done so. (Tr. 634:8.) According to Mr. Washington, Petitioner informed him that he “wasn't worrying” about his upcoming trial because the victim “[was] the only one who seen him shoot him” and that “he was going to finish him off.” (Tr. 634:9-24.) Mr. Washington testified that he took this to mean that Petitioner was planning to kill the victim. (Tr. 634:18- 24.) Mr. Washington related this conversation to the victim and told him to “lay low.” (Tr. 635:7-15.)

         Later that month, Mr. Washington returned to Montgomery, Alabama, where he was subsequently arrested by federal agents and brought to New York on charges of being a felon in possession of a firearm and dealing guns without a license. (Tr. 636:10-21.) He had two proffer sessions with the United States Attorney's Office, during which he related his history of criminal activities. (Tr. 642:2-648:11.) Mr. Washington testified that in September of 2005, following these two proffer sessions, he read a newspaper article about the victim's murder. (Tr. 655:12- 656:1.) Defense counsel objected to the admission of the article into evidence, as it contained the line: “McCrae told emergency workers he recognized the gunman as someone who had shot him in the past” and stated that the victim was shot “by a gunman he had been feuding with.” (Tr. 656:13-657:4.) The article was admitted into evidence, and the court provided a curative instruction to the jury, informing the jury that the article was not being offered for the truth of the matter asserted but rather as an explanation of the witness's thinking and the actions he took after reading the article. (Tr. 657:7-659:23.) Mr. Washington testified that, after reading the article, he spoke to Detective Rosario Rizzo from the 83rd Precinct of the New York Police Department (“NYPD”) on September 29, 2005, regarding the first shooting and his conversation with Petitioner. (Tr. 659:25-661:1.)

         The People elicited testimony from Mr. Washington that the federal government had agreed not to prosecute him for the other crimes to which he admitted during his proffer sessions, in exchange for his testimony at Petitioner's trial. (Tr. 654:11-655:4.) The People also elicited testimony that the state was not bound by this agreement and that Mr. Washington was still facing federal charges related to the illegal transportation and sale of guns. (Tr. 654:11-655:8.) Mr. Washington further testified that he had not been promised a specific sentence on these charges; in fact, he faced up to ten years in prison, with his sentence remaining within the discretion of a federal judge. (Tr. 651:18-654:10.) On cross-examination, Petitioner's counsel elicited testimony that Mr. Washington knew but did not disclose information regarding the two shootings at issue during his initial proffer sessions with the government, and that Mr. Washington was only offered a cooperation agreement subsequent to his admissions related to the murder of the victim. (Tr. 664:14-728:8.)

         Following Mr. Washington's testimony, the People called Detective Phillips, who testified about the investigation into the first shooting. (Tr. 771:13 -797:4.) Before trial, the Trial Court had ruled that the People would only be permitted to introduce testimony regarding the photographic array if defense counsel first opened the door by questioning the victim's ability to recognize the individual who shot him. (Tr. 4:3-7, 801:21-807:4.) After cross-examination, during which Petitioner's counsel asked Detective Phillips questions about the victim's ability to recognize his shooter, the Trial Court permitted the People to enter the photographic array into evidence and to question Phillips regarding the victim's identification of Petitioner because Petitioner's counsel opened the door as to the accuracy of the identification. (Tr. 801:21-807:4.)

         Sergeant Sauer testified regarding the victim's dying declaration, in which the victim identified “Skip” as his shooter and confirmed that his shooter was the same man who had previously shot him. (Tr. 740:14-745:1.)

         c. Jury verdict and sentence

         On January 29, 2007, the jury delivered a partial verdict. (Tr. 1113:9-10.) The jury found Petitioner guilty of attempted murder in the second degree and criminal possession of a weapon in the second degree, both charges stemming from the December 19, 2004 shooting. (Tr. 1117:24-1118:10.) The jury was unable to reach a verdict on the charges of murder in the first degree, murder in the second degree and criminal possession of a weapon in the second degree stemming from the September 10, 2005 shooting. (Tr. 1118:11-16.) The Trial Court declared a mistrial as to those counts. (Tr. 1121:9-10.) On April 30, 2007, taking into account Petitioner's prior felony conviction, the Trial Court sentenced Petitioner to concurrent prison terms of twenty-three years on the count of attempted murder in the second degree and fifteen years on the count of criminal possession of a weapon in the second degree. (Pet. 5.)

         In March of 2007, Petitioner was retried on the murder charge, and the jury in that matter was unable to reach a verdict. (Resp. Aff. 4.) In July of 2009, Petitioner was tried a third time on the murder charge and was acquitted. (Resp. Aff. 5.)

         d. Direct appeal

         On January 26, 2009, Petitioner appealed his judgment of conviction to the Appellate Division on the basis that (1) the consolidation of the indictments was improper because it allowed the People to invoke the forfeiture-by-wrongdoing doctrine in a case in which Petitioner was charged with the murder of the unavailable witness and permitted the People to introduce prejudicial evidence of the murder of the victim in the attempted murder case; (2) the admission of the victim's grand jury testimony violated Petitioner's right of confrontation, as the evidence presented at the pretrial hearings was insufficient to prove that Petitioner killed the victim with the intent of preventing him from testifying; (3) the admission of the victim's statements to Sergeant Sauer violated the hearsay rule, as the statements did not qualify as a dying declaration; and (4) the admission of Detective Phillips' testimony regarding the victim's photographic identification constituted improper bolstering. (Petitioner's Appellate Brief (“Pet'r App. Br.”), Resp. Ex. 1 at 13-14.)

         On September 29, 2009, following his acquittal on the charge of murder, Petitioner moved for leave to serve and file a supplemental brief in support of his direct appeal. (Pet. 5-6.) Petitioner argued that his acquittal on the murder charge “constituted a judicial finding that the defendant did not cause the unavailability of the complainant in the first trial” and that the acquittal provided additional support for his claim that the trial court erred when it consolidated the indictments. (See Decision & Order dated Feb. 26, 2010 (“Feb. 2010 Decision”), Pet. Ex. 5 at 6.) On ...

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