Smith v. Fischer

957 F.Supp.2d 418

Patrick SMITH, Petitioner,

v.Brian FISCHER, Respondent.

No. 07 Civ. 2966(RWS).

United States District Court, S.D. New York.

July 16, 2013.

Epstein & Weild, By Lloyd Epstein, Esq., New York, NY, for Petitioner Patrick Smith.

Bronx County District Attorney's Office, by Robert Johnson, Esq., Jason Whitehead, Esq., Allen Saperstein, Esq., Bronx, NY, for Respondent Brian Fischer.

OPINION

SWEET, District Judge.

Petitioner Patrick Smith (“Mr. Smith” or “Petitioner”) has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, opposed by respondent Superintendent Brian Fischer (“Mr. Fischer” or the “Respondent”).

The instant matter centers on the testimony of an informant in Petitioner's criminal trial. The issue presented here is whether Petitioner's trial counsel provided ineffective assistance by failing to seek a hearing with respect to the informant, pursuant to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

For the reasons set forth below, Petitioner's motion is granted.

I. PRIOR PROCEEDINGS

By an indictment filed on or about June 5, 2002, a Bronx County Grand Jury charged Petitioner and Kevin Alston (“Alston”) with first-degree murder (in the course of a robbery), second-degree murder (intentional and felony murder), first-degree manslaughter, first-degree robbery (armed), and second-degree weapons possession. Prior to trial, defense counsel successfully moved to dismiss four counts of the indictment on statute of limitations grounds and to preclude the use of Petitioner's statement to the police.

On November 18, 2003, the state prosecutor, Ms. Scaccia, announced that she intended to call an informant to testify regarding conversations the two men had while they were incarcerated together at Rikers Island, including that Mr. Smith indicated to the informant that he participated in the crime. (Trl. 6–7.) ¹ Prompted by this disclosure, the trial judge, Justice Thomas A. Farber, asked the prosecutor whether “[a]t this point, it's your representation that he is not an agent. He was not sent by you or police or anybody else?” ( Id.) The prosecutor responded “No.” (Trl. 7).

Prior to opening statements, on Thursday November 20, 2003, the Court again inquired regarding the informant as follows:

THE COURT: My understanding is that we still have the matter of the potential witness who is currently incarcerated and we don't have all the information that we need for him; is that right, Miss Scaccia?

MS. SCACCIA: That's correct. I have enough information that I have been able to put in a request for his rap sheet. I do need to speak to the detective that he contacted to determine whether there was any sort of confidential informant relationship between him and this detective or if it was just somebody that he had a working relationship with.

THE COURT: But based on our discussion yesterday, you will not refer to him in your opening and there will be no need to mention that in connection with any of the witnesses who testify today....

MS. SCACCIA: That's correct.

THE COURT: And so Mr. Bendish, so long as we have that by tomorrow, that's satisfactory.

MR. BENDISH (defense counsel): Yes, your Honor. I think, Judge, the record should also reflect Miss Scaccia gave me Grand Jury minutes which I had not received and also rep sheets of the witnesses that she intends to call. So I believe other than the inmate, I think she has completed Rosario obligations.

THE COURT: Obviously, if any issues arise, we will deal with them as they come up. It's always nice when there aren't since Rosario obligation does commence right about now.

(T2. 3–4.)

Following opening statements the same day, defense counsel, Mr. Bendish, requested an outer time frame for a decision regarding whether the State was going to call the informant, later identified as William Ferguson (“Mr. Ferguson”), and that he did not “want it to be like they give it to me in the morning and he is taking the stand in an hour and a half.” (Tr. 37.) The prosecutor stated that the informant would not be testifying before the next week. ( Id.) The Court responded, “I assume that you will have all the information tomorrow; right. There is no reason why you shouldn't.” ( Id.) The prosecutor stated that “[t]he only thing I may not have by tomorrow is Detective Dellasandro's ² position as to whether or not he was a C.I.” (Tr2. 37.) The Court assured defense counsel that he would have the name of the informant and his rap sheet by the next day, November 21, 2003. The prosecutor said she would probably not be able to meet with the detective until the next Monday or Tuesday, November 24 or 25, and defense counsel expressed concern that he might not be informed of the State's decision as to whether she would call the informant until after that point. (Tr. 37–38.) The Court responded that the prosecutor would know “on Monday whether there is any reason to believe that the [informant] is a C.I. or is getting a benefit of any kind for testifying or is a agent or anything like that. And then we will deal with it.” (Tr. 38.) Defense counsel accepted this outcome, saying “[o]kay.” ( Id.)

The following Monday November 24, the prosecutor disclosed what she stated was the informant's complete rap sheet. (T2. 221.) She stated that she had been unable to contact Detective Dellasandro (“Det. Dellasandro”), whom the informant had initially contacted, and that she did “not believe at this point just from looking at his rap sheets that he was a confidential informant but I am obviously not going on what I believe. I will find out for sure and tell counsel.” ( Id.) Defense counsel acknowledged receipt of the rap sheet and asked “that if there were any notes taken of his interview or interviews by either Detective Tracy or any other detective or the Assistant D.A. that they be turned over as soon as possible.” ( Id.) The Court responded, “[c]learly, I am not going to permit you to call him until we are satisfied that everything is turned over well ahead of time.” ( Id.) The prosecutor confirmed this, stating “Absolutely.” ( Id.)

At the end of the eyewitness testimony, defense counsel asked, if the State called Mr. Ferguson, for “affirmative proof” that the informant was not “an agent.” (T2. 391.) The Court stated, “I believe that you are prepared to make that representation, is that correct?” ( Id.) The following colloquy then took place:

MS. SCACCIA: Absolutely, that he was clearly not an agent and he was not sent in there to speak in any way with the defendant by the police or by our office. And, in fact, that he contacted, he contacted the Police Department who then contacted Detective Tracy, this case detective, because he was the one assigned to the case. I have not even, at this point, met Mr. Ferguson. I did not send him in there. He is not a registered confidential informant.

THE COURT: Do we know how it is that he came in contact with the detective he came in contact with? Why he called him as opposed to any other detective?

MS. SCACCIA: The detective that he called is a detective by the name of Dellasandro. And I believe that Detective Dellasandro has been involved with him regarding Brooklyn arrests. I mean he reached out to him because he obviously knew who he was. I don't know, I know that he's not his confidential informant. If he knows him it's because he's locked him up on one of his 26 arrests or because he works, he lives, or is known to frequent the precinct, that I can't answer you, but he reached out to the police.

MR. BENDISH: Judge, again, I am not, I am speaking from a little bit without knowing how many times this guy allegedly even talked to my client. I mean I don't have any idea whether, you know, he went in there once and he might have called this guy and the guy said, well, when you see him again, ask him about—I don't know. I have no idea, so I'm asking before we actually put him on the stand that we have some definitive statement by the prosecutor. And I am not asking for it now because I recognize she hasn't talked to the guy but it seems to me that she hasn't talked to the Brooklyn detective either so ...

MS. SCACCIA: It's my understanding that the call was made by the inmate to the detective. After that call was made to the Brooklyn Detective Dellasandro, he reached out for Detective Tracy. Detective Tracy then went and spoke to Mr. Ferguson himself. I believe it was the following day.

THE COURT: Okay and did Detective Dellasandro take any notes about this? He must have.

MS. SCACCIA: Detective Dellasandro?

THE COURT: Yes.

MS. SCACCIA: That I don't want to say. I don't know the answer to that.

THE COURT: Do you have Detective Dellasandro coming in tomorrow?

MS. SCACCIA: I did not, no.

MR. BENDISH: There's a gap there. I don't know how Dellasandro all of a sudden would come up with Tracy.

THE COURT: That's not, I mean he finds out who the homicide investigator detective is.

MR. BENDISH: Again, Judge, I am not asking for answers now, but it would seem to me that we are not even sure how many times they're saying he allegedly spoke to the client. Obviously, if it's more than once, that there may be, that he was sent in the second time and either at the suggestion—

MS. SCACCIA: He wasn't sent in. That's the whole issue, he wasn't sent in. If I were to send him in—

MR. BENDISH: The Assistant D.A. is speaking without any personal knowledge of that, so I am asking for an offer of proof so that we can have somebody to say that.

MS. SCACCIA: Actually, I am speaking not out of turn because when I became aware of this, there was some question by the detective, my detective, to me and from Dellasandro, is there anything we can do to send him in there? And you know what, it was my choice not to try to have anybody wired up or put in the microphone room because unless the person just sat there as a mute and let Mr. Smith do the talking then he would be acting as my agent, and I wouldn't be able to use that...