Johnson v. Miller

REPORT AND RECOMMENDATION TO THE HON. ALISON J. NATHAN: HABEAS PETITION

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

Timothy Johnson (“Johnson” or “Petitioner”), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York State Supreme Court, Bronx County. Johnson argues that: (1) the evidence used to convict him was legally insufficient because it was based solely on an unreliable eyewitness, and that (2) he was denied his constitutional right to a fair trial because the trial court (i) improperly permitted the prosecution to impeach its own witness, (ii) issued improper limiting instructions to the jury, and (iii) permitted the prosecution to improperly bolster its case during summation. For the reasons that follow, I recommend that Johnson's Petition be DENIED and the action dismissed.

Background

The jury convicted Johnson of first-degree manslaughter for the death of Kamal Doughty (“Doughty”), and two counts of second-degree criminal possession of a weapon in connection with Doughty's death. People v. Johnson, Indictment No. 900-2010 (N.Y. Sup. Ct. Bronx Cty. 2013). The jury acquitted Johnson of second-degree murder. The

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Court will briefly recount the factual background of the underlying crime, as well as the procedural background of the trial and subsequent appeals.

A. The Crime

On February 6, 2010, at approximately 4:30 a.m., New York Police Department (“NYPD”) officers found Doughty shot six times on the front steps of 1233 Union Avenue in Bronx County, New York. (Tr. at 283-84, 305.)^[1] The officers were responding to an anonymous 911 phone call placed by Richard Davis (“Davis”) at 4:27 a.m., during which he said that someone had been shot. (Id. at 89-90, 283). Doughty was transported to Lincoln Hospital, where he died at approximately 5:04 a.m. (Id. at 285.) Doughty's death was ruled a homicide by the hospital's coroner. (Id. at 53.)

The police knocked on doors in the neighborhood to see whether anyone had witnessed the shooting. (Id. at 93.) When the police knocked on his door, Davis told them that he had been asleep and did not know what had happened. (Id.) Two days later, on February 8, 2010, police once again knocked on his door. (Id.) Davis decided to speak to the police because he did not want his children to be at risk. (Id. at 93-94.) Davis explained at trial that he had called 911 anonymously and earlier denied knowledge because he was nervous that his neighbors would see him talking to police and he did not want to get involved. (Id. at 90-91, 93.)

Davis gave two statements to the police in which he said, in sum and substance, that he had seen Johnson threaten to kill Doughty, load a handgun, shoot Doughty, and

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then flee the murder scene. (Id. at 93-94; 174-76.) As read at trial to refresh Davis' memory, the first statement that Davis gave to the police states:

12:25 p.m., February 8, 830 Washington Avenue interview. On Saturday morning, early around 3:00 or 4:00 in the morning, I seen Light^[2] talking to one of his workers saying K is disrespecting him and I'm going to kill him. I'm tired of him disrespecting me, I'm gonna kill him. Joe gave Light the gun in the car in front of the store at East 1-6-9 and Union. Light got out of the car and came to my building, 1235 Union Avenue, talking to his workers about how he was going to kill this dude. He reached into his pocket pulled out a black handgun and racked the slide three or four times and then popped the magazine out and there was bullets all over the hallway. Light put the bullets back into the magazine and he racked the gun. He walked up to me and said you don't know anything, didn't see nothing, go in your house and he left. I went to my window and saw Light shooting K. Light ran to 1-6-8. I pulled up my phone and called 911 while I was looking out the window. I saw Light jump into Joe's car, the gray rental. As written for me by Detective Roberts as I directed. Signed Richard Davis signed Detective Roberts

(Id. at 175-76.) As also read at trial to refresh Davis' memory, the second statement that Davis gave to the police reads:

1:45 p.m., February 8, 2010, 830 Washington Ave

On Saturday morning, early around 3:00 or 4:00 in the morning, I was in a corner store at Union, East 169th Street with Light and Dollar a/k/a Mark.^[3]Light says I'm sick of this motherfucker disrespecting me. I'm gonna kill this motherfucker. Light calls Joe on the cell phone, 15 minutes later Joe comes with the car, a gray four-door. Light gets into the car. Me and Mark walked towards my building. Light followed on foot walking fast. I go to my building, 1235 Union Avenue and Light is saying I'm gonna kill this motherfucker. I'm tired of this shit disrespecting me. Light pulls out the gun, which is a black handgun. He starts to rack the slide and bullets are flying out onto the floor in the hallway. Light then picked up the bullets and loaded them in the magazine, he racked the gun, he said mind your business. I know how this thing go, go back in your house. You didn't see nothing, you didn't see nothing. He left, I went into my house and I -- and heard some shots. I run to the window and I saw Light shooting K. I picked up my phone and called

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911. Light ran to 1-6-8 and jumped in the gray car. They drove right down the block, Union. Joe was driving. Light was wearing a black hoody, a black Champion hat with red trim all around, white sneakers, dungarees, blue and black jacket. I know Light for two years and I see him everyday. I saw Joe everyday for two years . . . .

(Id. at 174-75.) The day after giving those statements, Davis packed up his children and belongings and applied for emergency housing because he felt unsafe remaining in his home. (Id. at 95.)

At trial, Davis testified for three days. On the first day of his testimony, he testified to having witnessed Johnson and Doughty arguing in a neighborhood bodega immediately prior to the murder, that Johnson threatened to kill Doughty, that he saw Johnson possessing a loaded handgun, and that Johnson shot Doughty. (Id. at 81-82, 86, 88-89.) What follows is the sequence of events that Davis testified to during direct examination.^[4]

On February 6, 2010, between 4 a.m. and 5 a.m., Davis witnessed Johnson shoot and kill Doughty in front of 1233 Union Avenue in the Bronx. (Id. at 82-83, 88-89.) Davis witnessed the murder from his first-floor apartment window at 1235 Union Street. (Id. at 82-83, 89.)

Immediately prior to the shooting, Davis went to a neighborhood bodega. (Id. at 78-79.) Johnson, Doughty and two other individuals - Mark (“Roaches”) and an unidentified female neighbor - were all at the bodega when Davis arrived. (Id. at 79-80.)

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Johnson was a drug dealer who sold crack cocaine. (Id. at 73.) Both Roaches and Davis sold “dime bags” of crack for Johnson.^[5] (Id. at 74-75, 80.) Davis also frequently purchased crack cocaine from Johnson for his own use. (Id. at 73-74.) Doughty was a rival dealer who sold “nickel bags” of crack that were less expensive than the dime bags that Johnson sold. (Id. at 75-76.)

At the bodega, Johnson and Doughty were arguing loudly. (Id. at 81-82). Johnson accused Doughty of encroaching on Johnson's sales territory, saying that Doughty was “disrespecting [his] block” and that Doughty “ain't suppose[d] to be on my block selling no drugs when I am here.” (Id. at 81.) Davis purchased the items he needed and then left the bodega to go home. (Id.) He was trailed by Johnson and Roaches. Davis also saw Doughty and the female neighbor walk to the building next door. (Id. at 83.) Davis had used crack earlier that day but was no longer feeling its effects. (Id. at 78-79.)

Johnson and Roaches followed Davis into Davis' apartment building. (Id. at 82-84.) Inside the building, Johnson told Davis, in reference to Doughty, that “I am going to kill this motherfucker because he disrespected me, I told him don't come on my block and he is still on my block selling them nickels.” (Id. at 86.) Davis asked Johnson whether he was really serious about killing Doughty. (Id.)

Davis then went to his first-floor apartment to check on his children. (Id. at 86.) After checking on his children, Davis returned to the apartment hallway and saw Johnson pull out a gun and bullets falling to the ground. (Id.) Davis again asked Johnson if he was serious about killing Doughty and Johnson responded that “I am tired of him

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disrespecting me.” (Id.) Johnson then told Roaches to “shut it down, ” which Davis understood to mean that Roaches should “take the drugs, go upstairs, no more selling.” (Id. at 86-87.) Johnson then told Davis that he was going to “to kill this mother, MF” in reference to Doughty. (Id. at 88.) Davis once again asked Johnson whether he was serious, to which Johnson replied by pointing his gun at Davis, signaling that Davis should go inside and mind his own business. (Id.) Davis thought Johnson was intoxicated at that time. (Id.)

Davis went back to his apartment, locked the door, and took his children to the back of the apartment to protect them if Johnson started shooting in the hallway. (Id.) Davis heard Johnson leave the apartment building. (Id.) Davis walked towards the front of his apartment and heard a gunshot. (Id.) Davis ducked, and looked out the window where he saw Johnson “shooting Pillsbury, just shooting him.” (Id.) Davis heard Doughty “yelling no, he was yelling no. Then he was falling down the stairs right there. And Light he got closer to him and started shooting him two or three more times.” (Id. at 89.) Davis was “a...