Tompkins v. Griffin
6:11-cv-06023 | W.D.N.Y. | Mar 11, 2012
Case 6:11-cv-06023-MAT Document 14 Filed 03/11/12 Page 1 of 24
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AARON TOMPKINS,
Petitioner,
-vs- No. 11-CV-6023(MAT)
DECISION AND ORDER
PATRICK GRIFFIN,
Respondent.
I. Introduction
Pro se petitioner Aaron Tompkins (“Tompkins” or “Petitioner”)
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the
basis that he is being detained in Respondent’s custody in
violation of his federal constitutional rights. Tompkins is
incarcerated as the result of a judgment of conviction entered
against him on September 19, 2003, following a jury trial in Monroe
County Court of New York State (Connell, J.), on charges of second
degree murder, burglary, and criminal possession of a weapon.
II. Factual Background and Procedural History
The convictions here at issue stem from two separate incidents
that occurred in the City of Rochester on August 27, 2002, and
September 1, 2002. The August 27th incident resulted in charges of
second degree (intentional) murder, third degree criminal
possession of a weapon, and second degree criminal possession of a
weapon. As a result of the second incident, Tompkins was charged
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with first degree burglary (three counts), second degree criminal
possession of a weapon, and third degree criminal possession of a
weapon. New York law permitted joinder of the offenses for trial.
A summary of the pertinent testimony follows.
A. The Trial
1. The Portland Avenue Incident
On August 26, 2002, Sammie Cappadonia (“Cappadonia”), a
clerical supervisor in the radiology department at Rochester
General Hospital (“RGH”), finished his shift at midnight and went
to wait for the bus on Portland Avenue in front of the hospital.
T.205.1 Richard Cooper (“Cooper”) and his girlfriend,2 whom
Cappadonia had seen in the emergency room that night, walked up to
the bus top. T.206. Wanting to be alone, Cappadonia walked about
fifteen to twenty feet from the bus stop and stood there listening
to music on his headphones and watching for the bus. T.207-08. From
time to time, he looked back in the direction of the bus stop. At
one point, he saw a “pretty fit figure” whom he “assume[d]” was
black, walking towards the bus stop. T.208. Cappadonia did not
think anything of it until he heard a “popping noise” which he at
first thought was firecrackers. T.208. When he turned around, he
saw the man firing a gun at Cooper, who was lying on his back in
1
Citations to “T.___” refer to pages in the trial transcript.
2
Cooper’s girlfriend, Ma’Shona Attenberry, did not testify for the
prosecution.
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the middle of the street with his hands up in the air. T.210.
Eventually, Cappadonia said, the assailant was standing “almost on
top of [Cooper]” and firing directly at Cooper’s torso and head
area. T.211. Cappadonia did not see what happened to Cooper’s
female companion. As he was running away, Cappadonia heard the
woman and Cooper screaming. T.211.
The prosecution introduced Tompkins’ statement to the police3
in which he admitted shooting Cooper. Tompkins explained that on
the day of the shooting, a person whom he knew as “PT”4 showed up
at a house on Bartlett Street and asked Tompkins to “hold him down”
(i.e., back him up). PT explained that his “cousin . . . got his
ass kicked by his girlfriend’s boyfriend [Cooper]” and the cousin
wanted to shoot Cooper. T.179. Tompkins, who did not know Cooper or
PT’s cousin, agreed and got into the car. Id. Both PT and Tompkins
had guns. T.180. There were several other individuals in the car,
whom Tompkins refused to identify.
Tompkins and his cohorts decided to try the hospital first,
because PT’s cousin said that he had bitten Cooper during the
fight. T.180. When they arrived at RGH, they saw Cooper, who had a
brace on his leg, standing outside of the emergency department. At
3
Tompkins was in custody after having been arrested on February 4, 2003, on
unrelated drug charges. T.170-73.
4
According to the police reports submitted as part of the state court
records in this case, the police were aware that “PT” was a man named Anthony
Foster.
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some point, Tompkins and his group concluded that Cooper had
already left, and so they departed as well.
When they returned, they learned that Cooper had been
discharged. Assuming that he was going to need to take the bus
home, they decided to stake out the bus stop. T.181. Soon enough
they saw Cooper and his girlfriend walk up to the bus stop.
Tompkins assumed that PT was going to do the shooting, but PT told
him to do it because he (PT) had to drive. T.181.
Tompkins did not protest but instead got out of the car, with
orders to “make sure [you] leave him”, meaning to gun Cooper down.
T.181. Putting a bandanna over his face, Tompkins walked up to the
bus shelter and started shooting at Cooper, who started to run.
Tompkins continued shooting, and Cooper fell to the ground,
screaming. T.181. Tompkins turned back around and fired about four
more rounds into Cooper as he was lying on the ground. T.182.
Tompkins ran back to the car and got in; PT and his cousin
were acting “real excited” like they had “won the Super Bowl.”
T.182. Tompkins told the police that he “never meant for the guy to
die” but “just wanted to shoot him a few times to teach him a
lesson.” Id.
2. The Sanders Street Incident
Jamnita Wilson (“Wilson”) was at 61 Sanders Street playing
cards when Tompkins and two other men broke into the house at about
12:30 a.m. on September 1, 2002. T.226. According to Wilson,
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Tompkins was the first one through the door. He was carrying
handgun and did not have anything covering his face. T.228-29.
Tompkins ordered everyone to “get on the floor” and started walking
towards the kitchen, after which, Wilson heard gunshots. T.229.
Wilson hid underneath a table and did not move from that spot.
T.230.
Kenneth Lindsay (“Lindsay”), who lived at 61 Sanders Street
with his mother, was in the kitchen cooking some chicken when he
heard a male voice say, “All you get down, get down.” A young woman
ran through the kitchen saying, “This is a robbery,” and then ran
out the back door. According to Lindsay, Tompkins entered the
kitchen brandishing a handgun and said, “Drop your pants, get on
the floor, and put your hands behind your head.” Lindsay told
Tompkins that he had “babies” (his niece and nephew) asleep in the
bedroom, and told him to take whatever money he wanted. Tompkins
replied, “Fuck the babies,” and hit Lindsay with the gun. The two
men wrestled for control of the gun and during the struggle, the
gun discharged a few times.
Tompkins yelled to his accomplices that Lindsay was trying to
take the gun away from him. One of them came to the doorway and
fired a shot at Lindsay, who sustained a gunshot wound to his leg.
T.231. Tompkins and his cohorts then fled the scene. Lindsay threw
the gun at Tompkins’ retreating form.
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Shortly after the intruders had left, Tompkins attempted to
get back inside the house–presumably to retrieve his gun–but the
occupants refused to let him in. T.232. Ballistics testing linked
the 9-mm Ruger gun left by Tompkins at 61 Sanders Street to bullet
casings and a bullet fragment recovered from the Portland Avenue
murder scene. T.258-61, 264-70, 275-84.
Tompkins confessed to the Sanders Street home-invasion during
his interview with the police. Tompkins explained that he agreed to
participate because he believe that the house on Sanders Street was
a “gambling house” with a lot of money on premises; he expected a
haul of about $5,000 from the robbery. T.189. Tompkins borrowed a
gun, and he and his cohorts drove to 61 Sanders Street, arriving
there at about 12:30 a.m. When one of his friends was too scared to
approach the door, Tompkins volunteered to do it. T.190.
A black male came to the door, and Tompkins pushed his way
inside, ordering everyone to get on the ground. A “fat guy”
(Lindsay), who “kept telling [Tompkins] his kids were in the back”,
started walking toward the kitchen. T.190. Tompkins followed him,
and Lindsay grabbed Tompkins’ gun. The two men “tussled”, the gun
went off, and Tompkins “let the gun go.” Id. Lindsay picked up the
gun, and he and Tompkins’ friends all began shooting at each other.
Id.
When the shooting stopped, Tompkins went out the back door and
his cohorts exited through the front door. They did not take
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anything from the house, and there was “hardly any money” on the
table. Realizing that he had left his gun at the apartment,
Tompkins returned and tried to get in through the back door. T.191.
However, when the occupants yelled that he “wasn’t coming back in,”
Tompkins ran back to the getaway car. Id. The police showed
Tompkins a white hat that had been found at the crime scene which
Tompkins identified as his. Id. Tompkins told the police that he
was certain that he was not the one who shot Lindsay.
Prior to jury deliberations, the trial court dismissed one of
the first degree burglary charges. The jury, after deliberating for
about two days, returned a verdict convicting Tompkins of the
remaining charges in the indictment.
B. Sentencing and Post-Conviction Proceedings
Tompkins was sentenced to concurrent terms of imprisonment,
the longest of which was twenty-five years to life. His conviction
was unanimously affirmed on direct appeal. People v. Tompkins, 66
A.D.3d 1373 (4th Dept. 2009), lv. denied, 15 N.Y.3d 758 (2010).
C. The Federal Habeas Petition
Petitioner timely filed the instant federal habeas petition
raising a number of claims of ineffective assistance of trial
counsel. Respondent answered the petition, and Petitioner filed a
reply. The matter is now fully submitted and ready for decision.
For the reasons that follow, the request for a writ of habeas
corpus is denied, and the petition is dismissed.
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III. General Legal Principles
A federal court may entertain a state prisoner’s habeas corpus
petition only to the extent that the petition alleges custody in
violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2254(a).
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2).
V. Analysis of the Petition
A. Ineffective Assistance of Trial Counsel
1. Overview
The Appellate Division denied Petitioner’s challenges to
defense counsel’s performance, stating that “he was not denied
effective assistance of counsel[.]” People v. Tompkins, 66 A.D.3d
1373, 885 N.Y.S.2d at 668 (citing, inter alia, People v. Baldi, 54
N.Y.2d 137, 147 (1981)). The Second Circuit has held that New
York’s “meaningful representation” standard, articulated in People
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v. Baldi, supra, for evaluating counsel’s performance is not
“contrary to,” 28 U.S.C. § 2254(d)(1), the principles set forth in
Strickland v. Washington, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. 668 (1984). Strickland has been
deemed to be the “clearly established,” 28 U.S.C. § 2254(d)(1),
Supreme Court law for evaluating claims of ineffective assistance
of trial counsel. Rosario v. Ercole, 601 F.3d 118" date_filed="2010-04-12" court="2d Cir." case_name="Rosario v. Ercole">601 F.3d 118, 126 (2d Cir.
2010) (citation omitted). Thus, Petitioner can only obtain relief
if the Appellate Division’s adjudication of his ineffectiveness
claim was an “unreasonable application” of Strickland. Id. The
Supreme Court has explained that, under 28 U.S.C. § 2254(d)(1), the
“question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington v.
Richter, 537 U.S. __, 131 S. Ct. 770" date_filed="2011-01-19" court="SCOTUS" case_name="Harrington v. Richter">131 S. Ct. 770, 788 (2011).
2. Trial Counsel’s Alleged Errors
a. Failure to Inquire Whether the Right to
Counsel Had Attached at the Time of the
Interrogation
Tompkins contends that trial counsel was ineffective in
failing to ask whether his right to counsel had attached at the
time he was interrogated by the police.5 Respondent contends that
this assertion is contradicted by appellate counsel’s arguments on
5
Under New York state constitutional law, in contrast to federal
constitutional law, “the indelible right to counsel attaches whenever an arrest
warrant is issued and the ‘police may not question a suspect in the absence of
an attorney[.]’” People v. Jones, 2 N.Y.3d 235" date_filed="2004-04-06" court="NY" case_name="People v. Jones">2 N.Y.3d 235, 240 (2004) (quotation omitted).
“[O]nce a defendant in custody on a particular matter is represented by or
requests counsel, custodial interrogation about any subject, whether related or
unrelated to the charge upon which representation is sought or obtained, must
cease[.]” People v. Steward, 88 N.Y.2d 496" date_filed="1996-06-11" court="NY" case_name="People v. Steward">88 N.Y.2d 496, 501 (1996).
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direct appeal, namely, that the trial court had erroneously failed
to suppress Tompkins’ statements to police because his right to
counsel had attached with regard to the drug charge, and he could
not validly waive his right to counsel with regard to the murder
and home invasion charges. Appellate counsel asserted that the
issue had been preserved by trial counsel in his motion to
suppress.
Contrary to his argument here (that trial counsel did assert
the issue), Respondent argued on direct appeal that the right-to-
counsel claim had not been preserved. See People’s Appellate Brief
at 9-10 (“[T]he issue of the alleged violation of the defendant’s
right to counsel was not raised below–not in his motion papers, not
at the hearing on the motion to suppress, and not in the
suppression court’s decision and order.”) (citations to record
omitted), Respondent’s Appendix (“Resp’t App.”) C. Although
Respondent is accusing Petitioner of “wanting to have it both
ways”, the same claim may be leveled at Respondent.
As an initial matter, the Court notes that Respondent’s lack-
of-preservation argument is incorrect as a matter of state law:
“[A] claimed deprivation of the State constitutional right to
counsel may be raised on appeal, notwithstanding that the issue was
not preserved by having been specifically raised in a suppression
motion or at trial[.]” People v. Kinchen, 60 N.Y.2d 772" date_filed="1983-10-20" court="NY" case_name="People v. Kinchen">60 N.Y.2d 772, 773 (1983)
(citation omitted). In accordance with this rule, the Appellate
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Division considered Tompkins’ contention that his state right to
counsel had been violated because the police interrogated him
notwithstanding his representation on an unrelated drug charge. The
Appellate Division held that the trial court “properly refused to
suppress [his] statements to the police despite his representation
by counsel in an unrelated criminal proceeding, ‘inasmuch as there
is no evidence in the record that the interrogating police officers
had any knowledge . . . of defendant’s representation by counsel
therein’[.]” People v. Tompkins, 66 A.D.3d 1373" date_filed="2009-10-02" court="N.Y. App. Div." case_name="People v. Tompkins">66 A.D.3d 1373, 885 N.Y.S.2d at
668 (quoting People v. Johnson, 61 N.Y.2d 932" date_filed="1984-03-20" court="NY" case_name="People v. Johnson">61 N.Y.2d 932, 934 (1984); other
citations omitted).6 Assuming that trial counsel failed to assert
the denial-of-counsel argument at the suppression hearing, the
omission did not prejudice Petitioner since the Appellate Division
considered the issue on the merits on appeal.
b. Failure to Challenge the Voluntariness of
Petitioner’s Statements
Tompkins contends that trial counsel “never mentioned the
[in]voluntariness” of his statements to the police. Again, this
claim is belied by the record. In his motion to suppress, trial
counsel challenged the voluntariness of Tompkins’ confessions. The
6
Either actual or constructive knowledge by interrogating police officers
that a defendant is represented by counsel suffices to perpetuate the indelible
state right to counsel once attached. People v. Lopez, 16 N.Y.3d 375" date_filed="2011-02-22" court="NY" case_name="People v. Lopez">16 N.Y.3d 375, 382-83
(2011) (holding that police officer who questioned defendant in custody about an
unrelated matter was required to make a reasonable inquiry concerning the
defendant’s representational status before commencing interrogation, where the
circumstances, such as fact that bail had been set, indicated that there was a
probable likelihood that an attorney had entered the custodial matter, and the
accused was actually represented on the custodial charge).
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suppression court held that Tompkins was properly advised of his
Miranda rights and made a knowing, voluntary, and intelligent
waiver of those rights. See Monroe County Court Order dated July 9,
2003, at 3-4, Resp’t App. C. On direct appeal, the Appellate
Division held that the “record establishe[d] that [Tompkins]
knowingly and intelligently waived his Miranda rights, and there is
no indication that he was threatened or coerced or that the police
unlawfully isolated him from supportive adults who attempted to see
him[.]” People v. Tompkins, 66 A.D.3d 1373" date_filed="2009-10-02" court="N.Y. App. Div." case_name="People v. Tompkins">66 A.D.3d 1373, 885 N.Y.S.2d at 668
(citations omitted).
c. Failure to Move for Severance
Tompkins argues, as he did on direct appeal, that trial
counsel was ineffective in failing to move for severance so as to
afford Tompkins separate trials on the murder charges and the
charges stemming from the home invasion. Respondent argues that
such a motion would have had no chance of success and trial
counsel’s decision thus was not professionally unreasonable.
As Respondent points out, New York Criminal Procedure Law
(“C.P.L.”) § 200.20(2)(b) permits joinder of offenses encompassing
different criminal transactions when the offenses, or the
underlying criminal transaction, are of such a nature that proof of
one offense or transaction would be material and admissible as
evidence in the prosecution’s case-in-chief during a trial of the
other offense or transaction. N.Y. CRIM. PROC. LAW § 200.20(2)(b). In
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such case, “the trial court has no discretion” to sever counts
pursuant to C.P.L. § 200.20(3). People v. Kelley, 46 A.D.3d 1329" date_filed="2007-12-21" court="N.Y. App. Div." case_name="People v. Kelley">46 A.D.3d 1329,
1332 (4th Dept. 2007) (citing, inter alia, People v. Bongarzone, 69
N.Y.2d 892, 895 (1987)).
Here, the offenses were properly joined pursuant to C.P.L.
§ 200.20(2)(b). As Respondent argues, proof that Tompkins used a
gun during the Sanders Street home invasion–which ballistics test
results revealed was the weapon used in the Portland Avenue
slaying–constituted relevant and material evidence as to the
Portland Avenue shooter’s identity. Since the offenses were
properly joined under C.P.L. § 200.20(2)(b), the trial court
“lacked statutory authority to grant defendant’s [severance]
motion[.]” People v. Murphy, 28 A.D.3d 1096" date_filed="2006-04-28" court="N.Y. App. Div." case_name="People v. Murphy">28 A.D.3d 1096, 1097 (4th Dept. 2006)
(trial court lacked authority to grant severance motion where the
offenses were inextricably interwoven and the evidence of each
offense helped establish the identity of the perpetrator of the
other offenses) (quotation and citations omitted); see generally
Bongarzone, 69 N.Y.2d at 895.
Defense counsel cannot be found ineffective for failing to
make a motion that had no likelihood of success, and Petitioner
cannot have been prejudiced by the failure to make an unmeritorious
motion. See, e.g., United States v. De La Pava, 268 F.3d 157" date_filed="2001-10-15" court="2d Cir." case_name="United States v. Alejandro Bustos De La Pava">268 F.3d 157, 163
(2d Cir. 2001) (defendant failed to establish either prong of
Strickland in connection with his claim that counsel was
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ineffective in failing to make a motion to dismiss the indictment
that lacked merit).
d. Failure to a Make Record of Jury Selection
Tompkins contends that trial counsel was ineffective because
he allegedly failed to insure that an appellate record was made of
the jury selection proceedings. As Respondent points out, 149 pages
of the trial transcript record the jury selection. The crux of
Petitioner’s complaint thus appears to be that the transcript does
not record the attorneys’ actual statements about which jurors were
excused and which were seated. See Defendant’s Appellate Brief at
31 (“Three sweeps were made for jury selection, but none of this
selection was recorded. This is unacceptable practice, as on appeal
one must demonstrate prejudice by absence of the record, usually an
impossibility.”) (citing People v. Harrison, 85 N.Y.2d 794" date_filed="1995-06-13" court="NY" case_name="People v. Harrison">85 N.Y.2d 794, 796
(1995); citation to transcript omitted). Appellate counsel’s
assertion is confusing, to say the least. Moreover, the Harrison
case is inapposite.
Harrison stands for the proposition that the complete absence
of a stenographic record as required by N.Y Judiciary Law § 295 to
facilitate a defendant’s fundamental right to appeal a criminal
conviction does not, per se, require reversal of a defendant’s
conviction; instead, prejudice must be shown. In Harrison, unlike
Tompkins’ case, the trial court had refused to order the
stenographer to record portions of the jury voir dire despite
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defense counsel’s repeated requests that a record be made of her
objections to several statements of the prosecutor and the judge.
Id. Because the dispute regarding the substance of the comments by
the trial court and counsel established that an accurate account
could not be reconstructed even if remittal was ordered for that
purpose, a reconstruction hearing could not cure the prejudice to
the defendant. Accordingly, reversal was required.
Here, there is no suggestion that any untoward remarks were
made by the prosecutor or the trial court, as was the case in
Harrison. In any event, the information which was not recorded (the
attorneys’ statements as to which jurors were excused and which
remained) was discernable from the transcript as a whole.
e. Failure to Make an Opening Statement
Petitioner contends that trial counsel was ineffective in
failing to give an opening statement, stating that there is “no
acceptable reason” for defense counsel to forego the “opportunity
to at minimum educate the jury about what it means to put the
[P]eople to their burden of proof . . . .” Defendant’s Appellate
Brief at 32.
“[T]he decision whether to make an opening statement and when
to make it is ordinarily a matter of trial tactics and strategy
which will not constitute the incompetence basis for a claim of
ineffective assistance of counsel.” United States v. Nersesian, 824
F.2d 1294, 1321 (2d Cir. 1987) (holding that counsel decision to
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waive argument was “certainly reasonable under the circumstances”
since it meant that he “did not commit [him]self to a particular
position and was thus free to develop any defense that might
materialize as the prosecution presented its case”) (citations
omitted). Moreover, the subject matter that Tompkins’ trial counsel
supposedly should have included in his opening statement–how to
apply the “reasonable doubt” standard–was improper legal argument
and beyond the proper scope of an opening statement. See, e.g.,
United States v. Wables, 731 F.2d 440" date_filed="1984-04-09" court="7th Cir." case_name="United States v. Tony William Wables">731 F.2d 440, 449 (7th Cir. 1984) (“It is
beyond question that ‘it [is] for the judge, not counsel, to
explain the law to the jury.’”) (quotation omitted); United States
v. Dinitz, 424 U.S. 600" date_filed="1976-03-08" court="SCOTUS" case_name="United States v. Dinitz">424 U.S. 600, 612 (1976) (Burger, C.J., concurring) (“An
opening statement has a narrow purpose and scope. It is to state
what evidence will be presented, to make it easier for the jurors
to understand what is to follow, and relate parts of the evidence
and testimony to the whole; it is not an occasion for argument.”)
(emphasis supplied).
Had Tompkins’ defense counsel presented the type of opening
statement urged by appellate counsel, the trial court likely would
have sustained an objection by the prosecutor. See People v.
Frazier, 291 A.D.2d 211" date_filed="2002-02-05" court="N.Y. App. Div." case_name="People v. Frazier">291 A.D.2d 211, 212, 738 N.Y.S.2d 16, 18 (1st Dept.) (“The
court was entitled to control the content of a defense opening that
went beyond a brief outline of what it believed would be supported
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by the evidence.”), appeal denied, 98 N.Y.2d 675 (2002); see
generally United States v. Wables, 731 F.2d 440" date_filed="1984-04-09" court="7th Cir." case_name="United States v. Tony William Wables">731 F.2d at 449.
f. Failure to Cross-Examine Witnesses
Petitioner claims that trial counsel was ineffective because
he failed to cross-examine key witnesses, in particular, the
firearms expert. According to Petitioner’s appellate counsel, the
failure to cross-examine this witness “demonstrated to the jury
that his first word was not to be questioned, . . . which is not a
strategy.” Defendant’s Appellate Brief at 32.
“Decisions about ‘whether to engage in cross-examination, and
if so to what extent and in what manner, are . . . strategic in
nature’ and generally will not support an ineffective assistance
claim.” Dunham v. Travis, 313 F.3d 724" date_filed="2002-12-17" court="2d Cir." case_name="Craig Dunham v. Brion Travis, Chair, New York State Parole Board">313 F.3d 724, 732 (2d Cir. 2002) (quoting
Nersesian, 824 F.2d at 1321). Here, Petitioner has offered no
indication as to what concessions defense counsel should have been
able to elicit from the ballistics expert on cross-examination or
how counsel could have discredited that witness. Petitioner cannot
demonstrate prejudice based on pure speculation.
g. Failure to Object
Petitioner claims, as he did on direct appeal, that trial
counsel “failed to object to the admission of statements by the
defendant, including a photocopy, and never mentioned
voluntariness.” These assertions are contradicted by the record.
When, at the suppression hearing, the prosecution sought to
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introduce a photocopy of Petitioner’s statements to the police,
defense counsel objected on the basis that a photocopy was not the
best evidence available. Trial counsel objected again at trial,
asserting that there was no proper foundation for the photocopy of
the statement and that it was not the best evidence. T.187. The
trial court agreed that the prosecutor needed to lay a proper
foundation, and the prosecutor proceeded to elicit testimony from
the police officer that the copy fairly and accurately depicted the
original. T.188.
With regard to Petitioner’s assertion that trial counsel
“never mentioned voluntariness,” any omission by trial counsel did
not prejudice Petitioner because the Appellate Division considered
the issue of voluntariness on appeal and held that his statements
to police were given voluntarily and were not the product of
coercion or improper tactics.
h. Failure to Investigate
Petitioner asserts, as he did on direct appeal, that trial
counsel failed to “conduct an independent investigation which
would’ve led to exculpatory evidence” and “failed to look
into/produce an eye witness who identified someone else as the
shooter.” In support of this claim, Petitioner’s appellate counsel
submitted copies of police reports (which apparently were not part
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of the record stipulated to by the prosecution), see RA.0015-0018,7
Resp’t App. C. These police reports summarized two interviews with
MaShona Attenberry (“Attenberry”), Richard Cooper’s girlfriend.
The eyewitness to whom Tompkins here refers presumably is
Attenberry. Some background is necessary to understanding this
claim.
1.) Attenberry and the Spinks Brothers
In her statement to the police given on August 27, 2002,
immediately after the shooting, Attenberry did not identify the
shooter by name and described him as a “dark skinned male black
wearing . . . a dark baseball cap and something pulled up over his
face.” RA.0017. Several months later, when Investigator Dominic
showed her a photo array on October 4, 2002, which only showed the
eye-areas of the subjects, Attenberry selected photo number five as
the person who had shot Cooper. She was told that this individual
was Michael Spinks, the brother of Worda Spinks, her ex-boyfriend
and the father of her young daughter.
Attenberry explained to Investigator Dominic that Worda Spinks
had gotten into a fight with Cooper on the day of the murder.8 When
7
Citations to “RA.___” refer to Bates-stamped documents submitted as part
of the record on appeal, a copy of which is included as Appendix C in
Respondent’s Appendix of Exhibits.
8
Reading Attenberry’s statements in tandem with Tompkins’ statements to
police, the logical inference is that PT’s cousin (whom Tompkins did not
identify) was Worda Spinks. As noted above, the motive behind Cooper’s murder was
revenge: PT explained to Tompkins that his cousin wanted Cooper killed because
Cooper had beaten him up.
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Attenberry learned from Investigator Dominic that she had selected
Michael Spinks’ photo, Attenberry stated that she “believed all
along that the shooter was Michael Spinks.” RA.0015.
At around the time Attenberry was shown a photo array in
October 2002, Worda Spinks, viewed two computer-generated photo
arrays at the police station on October 15, 2002. Tompkins’ photo
was not in the first array of about 100 photos, but it was in the
second. H.33-34. The suppression hearing testimony was that Worda
Spinks “hemmed and hawed” when he got to Tompkins’ photo but “never
committed” to an identification. H.40. Investigator Dominic did not
tell Worda Spinks who the suspect was or who was depicted in the
photo at which he hesitated. Worda Spinks later showed the police
a photo of Tompkins and stated that this was the person who had
shot Cooper. H.26-28;9 RA.0061.
Michael Spinks also allegedly made an identification of
Tompkins when shown a photo array by Investigator Reinstein on
November 1, 2002. However, Investigator Reinstein failed to appear
at the suppression hearing, and the prosecution offered no evidence
concerning that identification. H.46-47. Defense counsel moved to
have the identification by Michael Spinks dismissed on the basis of
Reinstein’s non-appearance. H.47. The prosecutor conceded that he
9
Citations to “H.___” refer to pages of the transcript of the suppression
hearing held on July 7, 2003.
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had no basis to oppose the motion, H.48, and the trial court
granted the defense application. R.0062.
Contemporaneously with their investigation into Tompkins, the
police were investigating Michael Spinks as the shooter. See County
Court Order dated July 9, 2003, at 2-3, R.0061-62. When the case
against Michael Spinks was presented to the grand jury on March 20,
2003, the matter was “no billed” and an indictment for murder was
handed up against Tompkins instead. See Affirmation of Assistant
District Attorney Clifford Owens, Esq., ¶3, RA.0066. A Monroe
County Court judge subsequently ordered the Michael Spinks case
unsealed so that Tompkins’ defense counsel could have access to the
records generated during that investigation. RA.0064-0065.
Attenberry did not testify at Tompkins’ trial. Defense counsel
urged the jury to draw an adverse inference against the prosecution
based upon this, noting that Cappadonia had mentioned that there
was a woman with Cooper at the bus stop. Trial counsel noted that
the jury “didn’t see her today, yesterday, during the trial.”
T.334-35.
2.) Trial Counsel’s Performance
Petitioner contends that trial counsel was ineffective in
failing to investigate Attenberry as an exculpatory witness based
upon her identification of Michael Spinks when interviewed by
Investigator Dominic in October of 2002. Defense counsel has a
constitutional “duty to make reasonable investigations or to make
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a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 691. A defense attorney’s
decision “whether to call specific witnesses-even those who might
offer exculpatory evidence–is not ordinarily viewed as a lapse in
professional judgment.” United States v. Schmidt, 105 F.3d 82" date_filed="1997-01-17" court="2d Cir." case_name="United States v. Lilly Schmidt">105 F.3d 82, 90
(2d Cir.), cert. denied, 522 U.S. 846" date_filed="1997-10-06" court="SCOTUS" case_name="Allen v. North Carolina">522 U.S. 846 (1997) (citing United States
v. Romero, 54 F.3d 56" date_filed="1995-04-13" court="2d Cir." case_name="United States v. Eugene Romero">54 F.3d 56, 60 (2d Cir. 1995) (trial counsel’s decision
not to interview two purported eyewitnesses to murder, who had told
police that someone other than defendant had killed victim, was
reasonable under the circumstances of case), cert. denied, 517 U.S.
1149 (1996); other citation omitted). In order to show that he was
prejudiced by counsel’s failure to call a particular witness, the
petitioner “must show not only that the testimony would have been
favorable, but also that the witness would have testified at
trial.” Croney v. Scully, No. CV–86–4335, 1988 WL 69766, at *2
(E.D.N.Y. June 13, 1988) (citing Alexander v. McCotter, 775 F.2d
595, 602 (5th Cir. 1985)), aff’d mem., 880 F.2d 1318" date_filed="1989-06-29" court="2d Cir." case_name="Fondo v. Memorial Hospital for Cancer">880 F.2d 1318 (2d Cir.
1989).
Tompkins has not established that defense counsel entirely
failed to interview Attenberry prior to trial; an equally likely
proposition is that defense counsel investigated Attenberry and, as
a matter of strategy, decided not to call her. Furthermore,
Tompkins has not established that Attenberry in fact would have
would have testified favorably for the defense at trial. Thus, he
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cannot show that he was prejudiced by defense counsel’s failure to
call her to testify.
Even assuming that Attenberry would have testified and named
Michael Spinks as the shooter, the accuracy of her photo-array
identification was open to serious attack: She admitted to the
police that the shooter had something covering his face, and the
identification she made of Michael Spinks was based only on
comparing the eye-areas of the subjects’ faces. The jury would
necessarily have weighed this shaky identification against
Tompkins’ detailed and voluntarily given confession and the
ballistics evidence establishing that the weapon used to kill
Cooper was the same weapon used in the Sanders Street home
invasion. Whatever the impact of Attenberry’s testimony, it would
not have resulted in a reasonable probability of the jury reaching
a different result.
After reviewing counsel’s alleged errors, the Court finds that
some of them were unsupported by the record and others were not
errors at all, as discussed above. Most important, Petitioner has
not demonstrated prejudice flowing from any of the alleged errors,
either when considered individually or cumulatively. Thus,
Petitioner cannot fulfill Strickland’s two-pronged standard. It
necessarily follows that the Appellate Division did not apply
Strickland in an objectively unreasonable manner.
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VI. Conclusion
For the reasons discussed above, the petition (Dkt. #1) filed
by Aaron Tompkins is dismissed with prejudice. Because Petitioner
has failed to make a substantial showing of a denial of a
constitutional right, the Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED: March 11, 2012
Rochester, New York
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