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United States v. State of New York Department of Corrections

United States District Court, E.D. New York

December 25, 2017



          Ann M. Donnelly United States District Judge

         The petitioner. Sheldon Thomas, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in Kings County Supreme Court of Murder in the Second Degree and related crimes, and was sentenced to a total prison sentence of 25 years to life. The petitioner challenges his conviction under the Fourth, Sixth, and Fourteenth Amendments. Specifically, he asserts that the state court should have suppressed the witnesses' identifications of him, and that he was denied the effective assistance of counsel.[1] For the reasons that follow, the petition is denied.


         1. Overview

         The petitioner's conviction arose out of a gang related shooting. On December 24, 2004, fourteen-year-old Anderson Bercy and a group of friends were walking south on East 52nd Street in Brooklyn; all were members of an East Flatbush street gang. A white car pulled up alongside the group, and two shooters opened fire from the passenger side. Bercy was shot in the upper chest and died soon after. Another person in the group, Kadeem Drummond, also was shot but survived.

         2. Investigation

         On December 24, 2004, Detective Robert Reedy of the 67th Precinct and Detective Michael Martin of the Brooklyn South Homicide Squad were assigned to investigate Anderson Bercy's murder. (ECF 35-1 at 7.) As part of the investigation, the detectives attempted to interview the people who were with the victims at the time of the shooting. They interviewed Kadeem Drummond, who told them that the shooting might be related to an altercation he had two days earlier with someone nicknamed "Yellow."' (ECF 35-31 atl.) Another detective interviewed Aliyah Charles, the girlfriend of Kirk Lapaix, who was with Bercy and Drummond at the time of the shooting. Charles was in Lapaix's apartment at the time of the shooting, and told the detective that she went to the window after hearing shots, and saw a white car drive away. (ECF 35-32 at 2.) Charles claimed not to have seen anything else, and that the only thing she knew about the car was that it had tinted windows. (Id.)

         On December 26, 2004, detectives interviewed Daymeon Smith. (ECF 35-35 at 1.) Smith said that at least four people were in the white car, and said that one of the shooters was a "dark-skinned black male" wearing a dark blue "muffin" hat (a winter hat with earflaps), who fired a gun out of the right rear window. (Id.) Smith said that he would recognize the man if he saw him again. (Id.) The same day, Aliyah Charles went to the 67th Precinct and gave an audiotaped statement to an assistant district attorney. She also gave Detectives Martin and Reedy a list of seven people who "might have been" in the white car. (ECF. 35 at 4.) The list included the following names: Yellow, Smokey, Shelly, Kern, Has, O'Neil, and Chris. (Id.) Detective Martin learned from other officers that "Yellow" was Dalton Walters, a member of the Outlaws gang, "Shelly" was Sheldon Thomas, a member of the Crips, and "Kenf' was Ernesto Sergeant, who was not affiliated with a gang. (Id.)

         3. The Photographic Arrays. Arrest, and Line-ups

         Detective Martin assembled two photographic arrays. One array included Dalton Walters' photograph. The second array included a photograph of someone named Sheldon Thomas, but it was not the petitioner. (ECF 36-2 at 84-85.) This photograph was in the fifth position of the six photograph array. (Id., ) Aliyah Charles looked at the array and identified photograph number five-the other Sheldon Thomas-as "one of the guys in the white car." (Id. at 86-87.) She said that she was "ninety percent sure" about her identification, but needed to see him in person to be certain. (Id.) Thinking that she had identified the petitioner, detectives arrested him at his home. (Mat 90-91.)

         After advising the petitioner of his constitutional rights, Detective Martin told him that a witness had identified his photograph in connection with the murder, and showed him the array. (Id. at 92.) When the petitioner responded that he was not the person in the photograph, Martin realized that the array contained the photograph of a different Sheldon Thomas. (Id.) Nevertheless, the detectives placed the petitioner in a line-up on December 28, 2004. (Id. at 93-98.) Three witnesses separately viewed the line-up: Aliyah Charles, Daymeon Smith, and Freddy Patrice. (Id. at 97; ECF 35-37 at 1; ECF 35-38 at 1.) Charles identified the petitioner as one of the people in the white car, while Smith and Patrice identified the petitioner as one of the shooters. (ECF 36-2 at 97; ECF 35-37 at 1; ECF 35-38 at 1.) Smith and Patrice refused to sign the line-up forms. (ECF 35-37 at 1; ECF 35-38 at 1.)

         The police arranged another line-up with Dalton Walters as the subject. (ECF 36-2 at 96-97.) Charles and Patrice identified Walters as one of the shooters from the white car; Smith identified him as someone from the neighborhood, but said that he was not in the car. (Id. at 96-97.)

         On May 13, 2005, the police conducted a third line-up with Ernesto Sergeant as the subject. (Id. at 98-99.) Smith identified Sergeant; Charles did not. (Id. at 98-99.)

         4. Pre-Trial Hearings

         Prior to trial, the petitioner and his co-defendant, Dalton Walters, moved to suppress the photographic and line-up identifications. Pretrial hearings began on June 5, 2006 before the Honorable Vincent Del Guidice.

         a. The Prosecution's Case

         Detective Robert Reedy testified on direct examination that that both Aliyah Charles and Daymeon Smith identified the petitioner's photograph from an array as one of the people in the white car.[2] (ECF 35-2 at 14.) Reedy also identified the petitioner in court as the person in the array. On cross-examination, however, the petitioner's attorney established that the person in the array was not the petitioner, but another man whose name was also Sheldon Thomas, a fact that the prosecutor acknowledged.[3] (Id. at 35-39.) The petitioner's counsel then argued that because no witness had actually identified the petitioner in the photo array, the police did not have probable cause for the arrest, and the line-up identifications should be suppressed. (Id. at 67-68.) In response to the court's questions, Reedy admitted that his statements on the stand were false when he made them. (Id. at 76-77.) The court adjourned the hearing so that Reedy could consult a lawyer. He also directed Reedy not to talk to anyone else about his testimony. (Id.)

         When the hearing resumed the following week. Reedy testified that he had ''mixed up" the details of the photographic array and the line-ups, that Smith did not identify anyone from the photographic array, and in fact refused to look at the array. (ECF 35-4 at 4-12.) Reedy also testified that Aliyah Charles identified the photograph of the other Sheldon Thomas-not the petitioner. (Id. at 11.) Two days after Reedy showed the photo array to Smith and Charles, Detective Martin told him that the Sheldon Thomas in the array was not actually the petitioner, a fact that Reedy did not remember until the petitioner's counsel refreshed his recollection. (Id. at 23-28.)

         Reedy admitted that he conferred with Detective Martin and other detectives during the intervening weekend; they ''refreshed his memory" that an anonymous caller gave them the name "Sheldon Thomas, " a series of nicknames ("Shellie, Lock, Smoke"), and an address on East 48th Street. (Id. at 16.)

         The petitioner's counsel and Walters' lawyer filed a joint motion to strike Reedy's testimony about the anonymous call, because Reedy violated the court's order by conferring with Detective Martin, who was also going to be a witness. (Id. at 44-45.) Judge Del Guidice denied the motion, ruling that the issue was one of credibility, and that he would give the testimony "as much weight as it deserves."[4] (Id. at 46.)

         Detective Martin also testified about the identifications. Aliyah Charles told him that she overheard other witnesses to the shooting say that "Sheldon" or "Shelly" and "Yellow, " "Hoz", and "Kern" were involved. (ECF 35-7 at 58.) In addition, an anonymous caller to the precinct reported that one of the perpetrators lived at 384 East 48th Street. (ECF 35-5 at 17-18.) This caller mentioned ''Sheldon Thomas, " and gave "very detailed information, " including an address and the nicknames Shelly, Loke, and Smoke or Smokey. (Id. at 1 7-23.) Like Charles, the anonymous caller identified Sheldon Thomas as a known associate of someone named "Yellow."'"[5] (Id. at 24.)

         Martin entered the information into a computer and located a photograph of someone named Sheldon Thomas, who lived in the 67lh Precinct, where the shooting occurred. He put together a photographic array and put that photograph in the fifth position. He made a second array with Dalton Walters' photograph. On December 27, 2004, Martin and Reedy went to Kirk LaPaix*s apartment, and showed the arrays, separately, to Charles and Smith. Charles identified the Sheldon Thomas in the array as one of the shooters; she clarified that she was "ninety percent sure, " and that she would have to "see him in person" to be 100 percent sure. (Id. at 33-35). She identified Walters' photograph from the second array. Smith refused to look at the arrays. (Id. at 36.)

         After the petitioner's arrest, Martin advised him of his constitutional rights, which the petitioner waived. (Id. at 43-45.) The petitioner said that on the day of the shooting, he and a friend went to Queens at 11:30 p.m. (Id. at 47.) When the detective said that the shooting occurred at 9:30 p.m., the petitioner "appeared nervous, " and said that he meant to say that he was in Queens at 11:30 a.m., and did not return to Brooklyn until 3:00 a.m. on Christmas. The petitioner knew Walters as "Yellow, " but claimed that he had never been in a white Nissan "ever in his life." (Id. at 48.)

         As a "bluff to "spur more information out of him, " Martin said that "numerous witnesses" had identified him. (Id. at 49-50.) The petitioner did not think that was possible, so Martin showed him the array with the photograph of the other Sheldon Thomas, and said, "There you are in position number five." (Id.) The petitioner replied, "That's not me." Martin looked at the photograph again, and realized that although there were "similarities, " the person in the photograph was not the petitioner. (Id. at 51.) Nevertheless, Martin's "gut feeling" was that he had arrested "the right Sheldon Thomas." based on his investigation and on the petitioner's "answers and evasiveness." (ECF 35-7 at 65).[6]

         Sergeant Michael Murphy testified about the circumstances of the petitioner's arrest. At around 3:30 a.m. on December 28, 2004. Murphy went to the front door of the petitioner's home, and saw someone, who looked like the petitioner, freeze like "a deer in headlights, " and then turn around toward the back door. (ECF 35-9 at 35.) Murphy also heard screaming and "commotion" from the back room of the house. (Id. at 37.) Fearing for the people inside, Murphy ordered an officer to kick open the door and arrest the petitioner. (Id. at 37-39.)

         b. The Defense Case

         The petitioner's mother, Pauline Williams, testified about the circumstances of the petitioner's arrest. The police knocked on her door at 3:30 a.m. and asked to speak to Sheldon Thomas. (ECF 35-10 at 7.) When Williams and her fiance did not open the door, the police banged on the door and yelled at them to "open the door." (Id. at 8.) Williams then woke the petitioner, who came downstairs, but refused to open the door. Williams, her mother, a couple of children, and the petitioner sat in the kitchen, while Williams' fiance called the precinct to ask why the officers were at his home. (Id. at 23.) The children were crying, but the adults never raised their voices. (Id. at 36-37.) Eventually, an officer kicked the door open, and at least six officers came in, and arrested the petitioner. (Id. at 10.)

         c. The Court's Decision

         In a written decision, Judge Del Giudice denied the motion to suppress the identifications and the petitioner's statements. (ECF 35-45.) He credited the testimony of the prosecution's witnesses. As for Detective Reedy, the court accepted his explanation that he had confused the details of the photographic array with the circumstances of the line-ups. (Id. at 10.) The judge also found that there was probable cause to arrest the petitioner, based on the information from the witnesses, including Aliyah Charles, and from the anonymous callers. (Id. at 13.) The judge concluded that it was "of no legal consequence" that Charles identified the photograph of a different Sheldon Thomas, because he resembled the petitioner, had the same name, and the police believed in "good faith" that the person in the photograph was the petitioner.[7] (Id. at 13.)

         The court held that the line-up procedures were not unduly suggestive, that "all fillers were sufficiently similar in appearance, " and that "[a]ny differences in height and hairstyle were minimized by having all subjects seated and wearing shower caps." (Id.)

         5. The Trial

         a. The Prosecution's case [8]

         i. Daymeon Smith

         Daymeon Smith, a member of the Bloods, had a criminal record that included an assault and attempted robbery, stealing motorcycles, threatening a police officer, and a parole violation. He knew the petitioner from the neighborhood, and saw him about twice a week during the year before the shooting. (ECF 35-14 at 3.) The petitioner was a member of the Gangsta Killa Crips, a sub group of the Crips gang. Dallon Walters, known as "Yellow, " was an Outlaw. (Id. at 4-6.) Walters and Freddy Patrice, also a Blood, "had beef and "didn't like each other." (Id.) Approximately two months before the shooting, Walters approached Smith, who was then sixteen, his best friend, fourteen-year-old Anderson Bercy, and some other Bloods, and warned them to stay away from Patrice. (Id. at 6-7.)

         At about 8:30 p.m. on Christmas Eve, Smith was with a group of other Bloods, heading back to Kirk Lapaix's house; the group included Anderson Bercy, Kirk Lapaix, Freddy Patrice, Michael Barnwell, and Kadeem Drummond. (Id. at 20.) A white car with tinted windows pulled up next to the group about five feet from Smith, the front passenger window was lowered, and the petitioner, wearing a "muffin" style hat, pointed a gun through the window and started firing. (Id. at 21.) Smith, who heard at least ten shots from two different guns, ran, as did the rest of the group. When he reached Anderson Bercy's building, about two blocks from the shooting, Freddy Patrice was dragging Bercy into the building. Bercy was holding his chest and said that he had been shot. Kadeem Drummond was also shot. Smith ran into a deli, screaming for help. He learned later that Anderson Bercy had died from his wounds. Smith quit the Bloods two weeks after the murder. (ECF35-15at7.)

         After the shooting, detectives tried to show Smith two photographic arrays, but he refused to look at them. On December 28th, Smith made a line-up identification of the petitioner as the person he saw shooting from the white car. In a separate line-up, he identified Walters as someone he knew from around the neighborhood. (Id. at 35-38.)

         On cross-examination, the petitioner's lawyer confronted Smith with his statements to the police that the shooter fired out of the right rear window, not the front passenger window. (ECF 35-15 at 22-25.) He also cross-examined Smith about his statements to the police and his grand jury testimony that the shooter was dark-skinned. Smith said that he did not know whether the shooter had light skin, dark skin, or something in between, but agreed that the petitioner did not have dark skin.[9] (ECF 35-16 at 3.)

         ii. Aliyah Charles

         At the time of the shooting, Aliyah Charles was Kirk Lapaix"s "on and off girlfriend. Lapaix was a Blood, as were his friends, including Daymeon Smith, Kadeem Drummond, and Michael Barnwell. Anderson Bercy "was like a little brother" to her. (ECF 35-18 at 8-10.) She recognized the petitioner and Walters from around the neighborhood. She had seen Walters once or twice a week for the previous four to five years, and knew him as "Yellow." (Id. at 10-12.) She did not know if Walters was in a gang, but knew that he associated with members of the Outlaws. (Id. at 12-13.) She did not know the petitioner, but had seen him in the neighborhood during the previous two years, and knew that he was a Crip. (Id. at 14.)

         Before December of 2004, Charles saw the petitioner driving a white car, which she noticed because it had "scratches in the back." (Id. at 16-17.) She also saw the petitioner and Walters one time during the summer, which "caught [her] attention" because she had never seen a Crip and an Outlaw together. (Id.)

         On December 24, 2004, as Charles left her job at Subway and walked to Kirk Lapaix's apartment at 52nd Street and Snyder Avenue, she saw Ernesto Sergeant, whom she knew as "Kern, " driving the same white car that the petitioner had previously driven. (Id. at 19-20.) When she reached the apartment, Kirk Lapaix, Freddy Patrice, Daymeon Smith, and Anderson Bercy were there, Charles went with them to a sneaker store where they met up with Michael Barnwell. (Id. at 21-22.) Charles noticed the same white car drive past the sneaker store, but did not see who was driving. (Id. at 22-23.) At one point, Lapaix and Patrice were "pointing and whispering, " and Charles saw the white car again. (Id. at 24.) Lapaix then told Charles to go to his apartment because he wanted "to make sure [she was] safe." (Id. at 25.)

         While Charles was watching television inside the apartment, she looked out the window and noticed that the white car was now parked in front of the building. She claimed that she was able to see, from the second floor, not only that the car had scratches on the back, but that the petitioner was driving, that Walters was in the back seat on the passenger side, that "Kern" was in the front seat, and that a fourth person was behind the petitioner. She left the window, and when she returned, saw the white car on the other side of the street. A few minutes later, she saw Lapaix, Drummond, Bercy, and the rest of the group walking toward the building. (Id. at 31 -32.) As they neared the corner, "shots started coming from the white car;" Charles could tell that two guns were being fired from the front and rear passenger windows. (Id. at 33.) When Charles went downstairs, Lapaix was there but the rest of the group had fled. (Id. at 34-35.)

         The police arrived within a half hour, and asked what happened. Charles told them that she did not see anything, and that the only thing she noticed about the car was that it had tinted windows; she did not want to talk to anyone because she could not believe that Anderson Bercy was dead. (Id. at 35-36.) On December 26, 2004, she went to the precinct and made an audiotaped statement, under oath, to an assistant district attorney, in which she said that she had only ...

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