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Jones v. Griffin

United States District Court, E.D. New York

January 17, 2018

LEON JONES, Petitioner,
v.
THOMAS GRIFFIN, Superintendent of Green Haven Correctional Facility, [1] Respondent.

          MEMORANDUM AND ORDER

          PAMELA K. CHEN, UNITED STATES DISTRICT JUDGE.

         Petitioner Leon Jones (“Petitioner” or “Jones”), appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence entered on July 16, 2007 in the Supreme Court of the State of New York, Nassau County. Petitioner claims that: (1) the trial court erred in summarily replacing a juror who failed to appear; (2) the evidence at trial was legally insufficient to support the judgment of conviction; and (3) his right to confrontation was denied. For the reasons set forth below, the petition is denied in its entirety.

         BACKGROUND

         I. Trial

         Petitioner was indicted and charged with two counts of Robbery in the First Degree, one count of Assault in the Second Degree, and one count of Assault in the Third Degree, following an incident in which James Waller and Alfred Thomas were assaulted and robbed in Hempstead, Nassau County at around 10:30 p.m. on August 23, 2006. Petitioner went to trial, separate from his co-defendants, before the Honorable John L. Kase in Nassau County on May 21, 2007. The jury was selected on May 22, 2007. The following day, before opening statements or testimony had commenced, one of the selected jurors did not appear at 11:30 a.m., the time at which they were requested to appear. (T. 172.)[2] Judge Kase replaced the missing juror with the first alternate. (T. 177.) The record does not reflect whether he waited for a period of time or whether he consulted with the attorneys, before replacing the absent juror.

         At trial, the State's evidence included the testimony of victim-witnesses Waller and Thomas about the incident and their identifications of the perpetrators, and the testimony of two Nassau County Police Department (“NCPD”) detectives, Francis McNally and Matthew Ross, about the investigation of the crime and the line-up identification procedures conducted as part of the investigation. Waller testified that an acquaintance of his, Crystal Black, called him on the evening of August 23, 2006, and arranged to meet him at a drive-through restaurant in Hempstead to “have a sexual encounter.” (T. 208, 210.) He described the arrangement for each of them to bring a friend, and he brought his friend Alfred Thomas. (T. 210-11.) Waller testified that when he arrived at the location and could not locate Black's car, he called her, and she eventually directed him to meet her on Maryland Avenue. (T. 212-14.) Waller testified that the residential street “was real dark and it is a one-way block.” (T. 214.) He stated that he got out of his car to talk to Black, who was in her car, when two individuals came from behind Black's car and approached him. (T. 217.) He stated: “I got a good look at both of them.” (T. 219.) He testified that both individuals had guns. (T. 220.) He testified that one of the individuals, whom he later identified as Daniel Thompson, struck him in the face, back, and arm with a gun; ripped his shirt off; and took his chain, hat, and money. (T. 217, 222, 306.) Waller testified that the second individual did not strike him or rob him. (T. 272.)

         Waller testified that he ran from the scene and called the police. (T. 224.) After police officers arrived, Waller testified, they found his hat and chain and a cell phone that he did not recognize. (T. 227-28.) He testified that when the phone vibrated a second time, he answered it at the direction of Detective McNally, told the caller that he had found the phone, and got an address where he could return the phone. (T. 236-37.) He also testified to answering a second call from an individual whom he recognized as Crystal Black. (T. 238.)

         Waller testified that he viewed a line-up at the police precinct on November 8, 2006, at which he identified Jones as the second perpetrator from the incident on August 23, 2006. (T. 241, 243.) He also described a line-up on November 27, 2006, at which he identified Daniel Thompson as the first perpetrator, who had assaulted and robbed him. (T. 244-246.)

         Petitioner's trial counsel, Lori Golombek, opened her cross-examination of witness Waller by questioning him about his past marijuana possession and use. (T. 274.) When Golombek asked if Waller also sold marijuana, Judge Kase sustained the prosecutor's objections and also disallowed questions about Waller's past convictions. (T. 275-76, 278-79.) In a sidebar conversation, Golombek stated that she had based these questions on testimony given by Crystal Black at a prior proceeding that Waller had sold marijuana to her in the past and that the purpose of meeting on August 23, 2006 was to get marijuana from him. (T. 276.) Judge Kase told Golombek that she was “creating a collateral issue that is not part of this trial, ” and warned her that introducing Black's prior testimony to impeach Waller would open the door to other parts of Black's prior testimony in which she implicated Jones in the August 23, 2006 incident. (T. 276- 278.) Judge Kase allowed Golombek to continue, but cautioned her that: “You are bound by his answers.” (T. 278.) Golombek questioned Waller about Black's intention that evening, and he testified that Black had asked him to bring some weed and that he told her “I don't hustle.” (T. 280.)

         Golombek also questioned Waller about a written statement prepared by a police officer that Waller signed on the evening of August 23, 2006. (T. 302.) After showing Waller the statement, Golombek asked: “Isn't it true that you signed a statement saying, as I was talking to Crystal[, ] two male blacks ran at me from behind Crystal's car with a handgun pointed at me? Isn't it true that you signed a statement saying that?” (T. 303.) Judge Kase interjected:

THE COURT: You think that that is a singular gun as opposed to two people running at him with each holding a gun?
MS. GOLOMBEK: Correct.
THE COURT: That's because of the way the grammar is set up. It is because grammatically it sounds that way to you. He didn't write that statement, and he signed it. . . . He testified that each person came up and approached in his direction with a handgun, he identified the people who did it, he identified the types of guns. What you are suggesting is that a statement written by another person saying that two men rushed at him with a gun means that only there was one gun [sic], and that he should adopt that because he signed that statement. Is that what you are saying?

(T. 303-04.) Golombek declined the opportunity to put the statement into evidence. (T. 302.) The following day, she sought a mistrial, stating:

You then asserted your opinion, which I believe is inappropriate, Judge. . . . Whether the jury wants to believe or disbelieve or adopt any part of what I say they can do that, Judge. But I don't believe that it is the province for you to point out to the jury what I am trying to do. . . . Judge, I submit that you are undermining my credibility, not only to the jurors, but to my client as well, Judge. I submit, in essence, you are depriving my client of a fair trial.

(T. 311-12.) Judge Kase denied the motion for a mistrial. (T. 313.)

         Upon resuming her cross-examination of Waller, Golombek sought to impeach Waller with inconsistencies between his trial testimony and his grand jury testimony. (T. 317-323.) Golombek elicited from Waller that, during the August 23, 2006 incident, he had concentrated on the first perpetrator and not on the second (T. 326, 328), and that he was in a panic and had feared for his life (T. 305-06, 333). She also questioned him about the line-up procedures, and he testified that he was given no instructions regarding the line-up. (T. 337-38.)

         NCPD Detective McNally testified to being called to the scene on August 23, 2006, meeting the complaining witnesses, recovering the cell phone, and learning about Crystal Black's identity and an address in Jamaica, Queens from calls to the phone. (T. 345-356.) He testified that he used that information to interview and arrest Black later that evening and to apprehend Daniel Thompson and Petitioner the next day. (T. 352-57.) He also testified about the lineup procedures on November 8 and November 27, 2006, and stated that he instructed Waller “that he would be viewing some people through a two-way pane of glass and; that if he recognized anybody he would have to say the number of the position that the person was sitting in.” (T. 358-363.)

         On cross-examination, McNally acknowledged that he took no fingerprints from the crime scene (T. 378), that he found no record of calls made from Jones's cell phone to the cell phone recovered at the scene (T. 382), and that none of the victims' property was found on Jones when he was arrested the following day (T. 393). McNally also testified about his interview with Waller and that Waller told the detective that two handguns were used during the August 23, 2006 incident, including one held by the second perpetrator. (T. 379-80.) He also testified that the witnesses described the second perpetrator as being 6 feet tall, while Jones is 5 feet, 8 inches. (T. 386.)

         Alfred Thomas testified that he was sitting in Waller's car when an individual stuck a gun to his head, pulled him from the car, threw him to the ground, and robbed him. (T. 403, 414-15.) He stated that he saw the face of the individual who robbed him and identified him as Jones. (T. 404, 415.) On cross-examination, Golombek questioned Thomas about a prior conviction in 1993 or 1994 for disorderly conduct and highlighted inconsistencies in his testimony, including the amount of light in Black's car on August 23, 2006 and whether he knew if Waller smoked marijuana. (T. 406, 436-40, 447.) Golombek questioned Thomas about the line-up identification procedure on November 8, 2006 and asked: “And you were told you had to pick someone out; isn't that correct?” (T. 474.) Thomas responded, “Yeah.” (Id.)

         During a break in Golombek's cross-examination of Thomas, outside the presence of the jury, Judge Kase told Golombek that she was “jumping back and forth, and it is becoming somewhat repetitious.” (T. 461.) He further instructed her: “[C]onduct your cross-examination questions in a cohesive manner, so the jury can follow where you're going with it.” (T. 462.)

         Finally, NCPD Detective Ross testified as to the line-up procedure he conducted on November 8, 2006. He stated that he did not instruct Waller or Thomas to make an identification and did not tell them that they had to identify someone. (T. 482, 486, 488.)

         The defense called one witness, Candice Williams, who provided an alibi for Petitioner. She testified that Jones was with her all day and evening on August 23, 2006, except for a five-minute window around 10:00 p.m. (T. 501-02.) On cross-examination, Williams acknowledged that she had not given this information to the police or district attorney and that the only individuals to whom she had provided this information were Ms. Golombek and the private investigators working with Ms. Golombek. (T. 512, 514-15.) She testified that at the time of the incident she was pregnant with Petitioner's child and had planned to move away from New York with him. (T. 500-01, 530-31.)

         Before the conclusion of the trial, Petitioner's counsel made two motions to dismiss, arguing that the People had failed to present sufficient evidence to make a prima facie case and that the People's witnesses were not credible. (T. 491-92, 534-36.) Judge Kase denied both motions. (T. 493, 536.) In summation, Petitioner's counsel argued that Waller had not had sufficient opportunity to view and identify the second perpetrator (T. 542, 545-47) and that there was insufficient evidence that a robbery had occurred or that Jones had participated in it or in an assault (T. 549, 561, 571-72). Petitioner's counsel also questioned the credibility of the State's witnesses (T. 551-52, 559, 562, 564, 566) and highlighted the lack of physical evidence tying Jones to the scene (T. 554-556).

         During deliberations, the jurors sent out a number of questions, including a request for “police report, testimony about one gun or two.” (T. 642.) After consulting with counsel for both sides, Judge Kase told the jury: “There is no report in evidence. There is some testimony concerning a report.” (T. 647.) In a follow-up note, the jurors asked for: “Testimony as to whether there was one gun or two guns.” (T. 649.) The Judge answered: “The only testimony you have before you is that there were two guns. What you are probably thinking of was something not in evidence. Therefore, you cannot consider that. Only testimony.” (T. 652.)

         The jury reached a verdict on May 29, 2007, convicting Jones on all charges. He was sentenced on July 16, 2007, as a second violent felony offender, to multiple concurrent terms of imprisonment ...


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