Opinion
22-CV-2266 (CM) (RWL)
10-10-2023
PEDRO HERNANDEZ, Petitioner, v. DONITA MCINTOSH, Respondent.
REPORT AND RECOMMENDATION TO HON. COLLEEN MCMAHON: PETITION FOR HABEAS CORPUS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
On the morning of May 25, 1979, six-year-old Etan Patz (“Patz”) disappeared while walking the two blocks from his family's apartment to his school bus stop. An investigation ensued, but, at the time, no suspects were arrested or charged. Patz was never found. In 1983, President Ronald Reagan designated May 25 - the anniversary of Patz's disappearance - as National Missing Children's Day in the United States.
On February 14, 2017, almost 40 years after Patz's disappearance, Pedro Hernandez (“Hernandez” or “Petitioner”) was convicted of kidnapping and felony murder of Patz. Despite the absence of any physical evidence or even Patz's body, Hernandez was convicted primarily based on his multiple confessions to the crime. A central issue before and at trial was whether the confessions given by Hernandez - who has a history of mental illness and a low intelligence quotient (“IQ”) - were made voluntarily, knowingly, and intelligently or were instead inadmissible, having been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
By the instant petition for habeas corpus pursuant to 28 U.S.C. § 2554, Hernandez challenges his conviction for four principal reasons. First, Hernandez argues that the trial court erred in denying his motion to suppress his confessions by unreasonably finding both that he was not in custody when he initially confessed and that he understood and could properly waive his Miranda rights. Second, Hernandez contends that the state courts erred by ignoring Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601 (2004), which found unconstitutional the law enforcement two-step interrogation practice of intentionally obtaining a confession without giving Miranda warnings, then issuing the warnings, and then obtaining a second confession.
Third, Hernandez asserts that the trial court made evidentiary rulings that deprived him of the opportunity to present a complete defense. Those rulings denied Hernandez the opportunity to present evidence of the culpability of one of two third-parties, as well as police reports memorializing contemporaneous statements made in the initial 1979 investigation. Finally, Hernandez argues that the state courts improperly ignored prejudicial contacts between court officers and jurors, including informing jurors that jurors from Hernandez's first trial were sitting with Patz's family at the second trial.
As discussed below, the circumstances of Hernandez's confessions do implicate federal constitutional concerns. Moreover, the record provides evidence by which a reasonable juror or jurist could find reasonable doubt of Hernandez's guilt. However, that is not the standard this Court must apply. Nor is the standard whether this Court would reach a different conclusion than that made by the state courts, or even whether the state courts were incorrect. Instead, the Court must apply the highly deferential standard Congress has afforded to state courts in habeas cases. Accordingly, for the reasons that follow, I recommend that Hernandez's petition be DENIED and the petition dismissed.
Table of Contents
BACKGROUND ..........................5
A. Initial Suspects..........................5
B. Law Enforcement's Focus On Hernandez ..........................7
C. May 23 To 25, 2012: Hernandez Is Questioned And Confesses To Police..........................9
1. Police Arrive At Hernandez's House..........................9
2. Police Question Hernandez For Seven Hours Without Giving Miranda Warnings...10
3. After Hernandez Confesses, Police Give The Miranda Warnings And Question Hernandez Again ..........................16
4. Police Take Hernandez To SoHo ..........................17
5. Hernandez Is Interrogated By ADA Durasanti And Confesses Again ..........................18
D. Other Confessions ..........................20
E. Pre-Trial and Trial Proceedings..........................21
1. Motion to Suppress and Huntley Hearing ..........................21
2. Hernandez's First Trial ..........................23
3. Evidentiary Motions Prior To The Second Trial..........................23
4. Hernandez's Second Trial ..........................25
F. Motion To Set Aside The Verdict..........................27
G. Appeals..........................28
H. The Instant Action ..........................30
STANDARD OF REVIEW ..........................30
DISCUSSION..........................34
I. Hernandez's Motion To Suppress Claims ..........................34
A. Relevant Miranda Law ..........................34
B. The State Courts' Determination That Hernandez's Initial Statement Was Not The Product of Custodial Interrogation Must Be Upheld..........................38
1. Whether Hernandez Was Restrained ..........................40
2. Whether Hernandez Was Free To Leave ..........................46
3. Whether The Questioning Of Hernandez Was Accusatory ..........................53
C. The State Courts' Determination That Hernandez Waived His Miranda Rights Knowingly And Intelligently Was Not Unreasonable ..........................61
II. Hernandez's Missouri v. Seibert Claims ..........................67
A. Seibert And Suppression Of Hernandez's Post-Miranda Statements ..........................68
1. Hernandez's Seibert Claim Is Not Procedurally Forfeited ..........................70
2. Hernandez's Seibert Suppression Claim Nonetheless Fails ..........................75
B. Seibert And The Trial Court's Response To The Jury Note ..........................80
1. The Relevant Jury Note Facts ..........................80
2. AEDPA Deference Applies ..........................81
3. The Trial Court's Response To The Jury Ignored Seibert ..........................83
4. The Appellate Division's Alternative Harmless Error Conclusion Was Not Unreasonable..........................88
III. Hernandez's Evidentiary Claims ..........................95
A. Evidentiary Rulings In The Habeas Context ..........................96
B. The State Courts' Exclusion Of Third-Party Culpability Evidence For Miller Was Not Contrary To Supreme Court Precedent ..........................97
C. The State Courts' Exclusion Of Hearsay Evidence Was Not An Unreasonable Application Of Supreme Court Law ..........................109
1. Chambers v. Mississippi ..........................110
2. Application ..........................112
IV. Hernandez's Jury Contamination Claim ..........................118
A. Relevant Legal Principles..........................119
B. The Relevant Jury Contamination Facts..........................120
C. The State Courts' Finding That Hernandez's Jury Contamination Claim Had No Merit Was Not Unreasonable Or Contrary To Supreme Court Law ..........................123
CONCLUSION ..........................129
PROCEDURES FOR FILING OBJECTIONS..........................130
BACKGROUND
A. Initial Suspects
In 1982, law enforcement trained their focus on Jose Ramos (“Ramos”). Ramos, in 1979, had been the boyfriend of Susan Harrington, whom Patz's mother had previously hired to walk Patz home from school during the 1979 school bus strike. (Exs. 2 (Part 1) at 1:00:10-1:01:56; 22G at 3620:1-11; 22Q at 8277:3-5.) In a 1982 interview with authorities, Ramos demonstrated familiarity with Patz's appearance and case but denied ever meeting him. (Exs. 22O at 7679:1-7680:3; 2 (Part 2) at 16:58-18:23, 22:11-24:19.) Several years later, in January 1986, Ramos was convicted of indecent assault for molesting two young boys and sentenced to three and a half to seven years. (Exs. 3-4; 22Q at 8227-30.)
Citations to “Ex.” refer to exhibits attached to Hernandez's Petition Under 28 U.S.C. § 2554 For Writ Of Habeas Corpus By A Person In State Custody filed on March 18, 2022 at Dkt. 1 (“Habeas Pet.”).
In June 1988, Assistant United States Attorney Stuart Grabois (“Grabois”) interviewed Ramos, whom the FBI considered a suspect in Patz's disappearance. (Ex. 22Q at 8230-33.) In November 1988, Barrett Harrington, Susan Harrington's son, divulged to Grabois that Ramos had molested him. (Ex. 22P at 8113-44.) On November 19, 1990, Ramos was sentenced to ten to twenty years in prison for “involuntary deviate sexual intercourse” for molesting another boy. (Exs. 4; 22Q at 8234-38.)
While incarcerated in 1991, Ramos was interviewed by FBI Special Agent Galligan (“Galligan”), the case agent for the Patz investigation from 1989 to 2000. (Ex. 22Q at 8244:16-21, 8279:8-15.) During questioning, Ramos admitted to being a child molester and that “on the day that Etan Patz went missing, he was in Washington Square Park ... [and] saw a little boy playing ... [and] went up to the little boy ... [whose] name was Jimmy” and said “I am Susan's friend.” (Ex. 22Q at 8284:21-8285:2, 8493:18-8494:2.) Ramos stated that he brought Jimmy back to his apartment and “did to the little boy what the old Ramos does or did to little boys” before taking Jimmy to the subway and putting him on a train. (Ex. 22Q at 8285:14-8286:2, 8286:18-8287:1.) When Galligan questioned Ramos on Jimmy's physical description, Ramos' replies referenced Patz. (Ex. 22Q at 8286:3-17.) Although Ramos said that “[Jimmy] could have been Etan Patz,” he never confessed and stated that “even if it was Etan Patz, I put him on the subway and sent him to his aunt.” (Ex. 22Q at 8288:4-19.) The FBI and the U.S. Attorney's Office convened a federal grand jury, but ultimately declined to prosecute Ramos for lack of federal jurisdiction. (Ex. 22Q at 8290:11-13, 8291:7-25.) The Manhattan District Attorney's (“DA's”) Office also declined to prosecute Ramos because of the absence of physical evidence. (Ex. 22Q at 8301:13-8302:6.) Ramos later was convicted in 2014 for failing to comply with sex offender registration. (Ex. 20.)
The investigation into Patz's disappearance was renewed in 2011 with a focus on Othniel Miller (“Miller”), a carpenter with a basement workshop on Prince Street between the Patz family's apartment and Patz's school bus stop. (Exs. 32 at 8; 22G at 3572:93573:1.) Miller did work in the Patz family's loft, and Patz would, on occasion, go to Miller's basement workshop to help with the carpentry in exchange for small change. (Ex. 22G 3576:18-3577:6.) On May 24, 1979 - the night before he disappeared - Patz spent approximately 45 minutes with Miller in his basement shop working in exchange for one dollar. (Ex. 22G at 3576:3-16, 3576-78, 3643-44.) In a 2011 interview with the FBI, Miller told authorities that he had been “changing out of his work clothes” when he gave Patz the one dollar on May 24, 1979, and that he had previously had sexual intercourse with a ten-year old girl. (Ex. 32 at 8-9.)
On April 3, 2012, the FBI brought a scent dog trained to detect the odor of human decomposition to Miller's basement. (Ex. 32 at 8-9.) When the dog alerted to the scent of human decomposition, Miller asked “[w]hat if the body was moved?” (Ex. 32 at 8-9.) Pursuant to a warrant, Miller's basement was excavated on April 19, 2012. (Ex. 22J at 5054-56.) The search proved inconclusive and Miller was never charged in connection with Patz's disappearance.
B. Law Enforcement's Focus On Hernandez
After seeing press coverage of Miller's basement's excavation, Jose Lopez (“Lopez”), Hernandez's brother-in-law, called police with a tip that Hernandez was involved in Patz's disappearance. (Ex. 22I at 4448:7-4451:25.) On May 8, 2012, detectives interviewed Lopez. Through that interview and another with one of Hernandez's sisters, detectives learned that Hernandez had previously made statements to various people about killing a child in New York City. (Exs. 22I at 4633-34, 4657; 22J at 5057-58.)
Hernandez was born in Puerto Rico in 1974 and moved to New Jersey with his family when he was about 13 years old. (Ex. 21C at 253.) In 1979, Hernandez worked at the bodega at the corner of Prince Street and West Broadway next to Patz's school bus stop. (Exs. 21C at 255; 22J at 4912:6-24, 4916:2-8.) During the initial investigation, police interviewed Hernandez since he was a bodega employee. (Exs. 47-48.)
In the years following his 1979 interview with police, Hernandez told multiple people that he had killed someone in New York City. While attending a religious retreat later in 1979, Hernandez told various group members that he had abused and killed a child in the basement of a New York City grocery store and placed the body in the garbage. (Ex. 22H at 3901:11-3905:18, 3980:1-23.) Also in 1979, Hernandez told Mark Pike (“Pike”), his neighbor at the time, that, while working at the store, he had strangled a black child who had thrown a ball at him and put the body in a dumpster. (Ex. 22H at 4057:23-4059:23.) And, in 1982, prior to their marriage, Hernandez told his now ex-wife Daisy Rivera (“Rivera”) that, while he was living in New York and working at the bodega, he had strangled someone he described as a “muchacho” and a “gringo” who had “violated him,” and put the body in a dumpster. (Ex. 22I at 4328:9-4330:20.) Neither Pike, Rivera, nor the religious group members, reported Hernandez's statements to the police. (See Exs. 22H at 3907:17-19, 3984:4-11, 4060:11-24; 22I at 4331:1-8.)
Hernandez has a history of mental illness and low intellectual ability. Throughout the 1990s and 2000s, various doctors noted Hernandez's “obsessive thoughts,” “hallucinations,” and “borderline impaired” intelligence, and diagnosed him with “affective disorder,” “depressive disorder,” “dependent personality disorder,” “personality disorder NOS,” and “intermittent explosive disorder.” (See Exs. 19A at SSA 19, 23, 71; 19D at SSA 272; 22R at 8778:1-20; 44 at 21.) In 2004 and 2005, Hernandez was diagnosed with “psychotic disorder NOS,” “schizophrenia/bipolar,” “psychotic” disorder, and “chronic mental illness.” (Ex. 19A at SSA 19, 23-25, 27-28, 50, 71.) Doctors prescribed Hernandez the anti-psychotic drug Zyprexa. (Ex. 19A at SSA 19, 27-28, 37.) Between 1992 and 2014, various intelligence tests placed Hernandez's IQ between 67 and 76, putting him in the lower one to five percentile range compared to other people his age. (Ex. 21H at 848:1-852:16, Ex. 22P at 7768:4-10.)
C. May 23 To 25, 2012: Hernandez Is Questioned And Confesses To Police
The facts in this section are derived from the 2014 Huntley Hearing Transcripts (Exs. 21A-21K), as well as the taped interrogations of Hernandez (Exs. 7, 8, 17).
1. Police Arrive At Hernandez's House
At around 7:45 a.m. on May 23, 2012, members of the New York Police Department (“NYPD”), including Detectives Jose Morales (“Morales”) and Dave Ramirez (“Ramirez”), accompanied by local police officers in marked cars, drove to Hernandez's home in New Jersey to interview him. (Exs. 21C at 225:13-227:14; 21D at 406:5-16.) Uniformed police officers knocked on the door and, when Hernandez answered, entered his home, and told him that some detectives wanted to speak with him. (Exs. 21C at 230:22-231:25; 21D at 406:17-20; 21E at 474:16-476:5.) Hernandez agreed to do so and came outside. (Ex. 21E at 477:18-19.) Morales and Ramirez then introduced themselves and asked Hernandez to accompany them to the local Camden County Prosecutor's Office (“CCPO”) to discuss an old missing person's case in New York City, in connection with which Hernandez's name had “c[o]me up.” (Exs. 21C at 233:25-236:25; 21F at 581:23-25.) Hernandez agreed. (Ex. 21C at 236:21-237:6.)
Morales asked Hernandez if he would “mind” if Morales “patted [him] down” for “everyone's safety,” to which Hernandez replied “no problem.” (Exs. 21C at 237:8-13; 21D at 411:7-25; 21F at 582:8-17.) While the detectives walked Hernandez to their unmarked police car, Morales asked Hernandez about a hard object he had felt while patting Hernandez down. (Exs. 21C at 237:15-20; 21F at 582:19-23.) Hernandez presented a cylindrical pill case. (Ex. 21F at 582:24-583:1.) Before getting into the car, Morales asked Hernandez if he had anything else in his pockets. (Exs. 21C at 238:4-7; 21D at 412:8-12.) In response, Hernandez emptied his pockets, removing his keys, a key chain, his wallet, and a cellphone. (Exs. 21C at 238:8-9, 24-25; 21D at 412:13-15.) Morales asked if Hernandez would “secure” his property in the trunk of the car, which he did. (Exs. 21C at 238:15-22; 21D at 412:13-413:6; 21F at 583:2-6.)
Before the car pulled away, Hernandez asked if this would “take a long time” because he needed to take his medication at noon. (Ex. 21C at 239:15-240:2.) Ramirez sent another detective back to Hernandez's house to get Hernandez's medications from Hernandez's wife Rosemary. (Exs. 21C at 240:5-8; 21F at 577:7-10.) Rosemary had already expressed concern to one of the CCPO officers that Hernandez was “unstable” and that “someone needed to stay with him.” (Ex. 21E at 559:13-14.) Rosemary and Becky Hernandez, Petitioner's daughter, traveled to the CCPO in another detective's car. (Ex. 21F at 577:1-4.)
During the ride, Hernandez asked “what this was about” and if “it had [] to do with child support issues with his ex-wife.” (Ex. 21C at 240:17-20.) Ramirez reiterated that it “had to do with a missing child case in New York City.” (Ex. 21C at 240:17-23.)
2. Police Question Hernandez For Seven Hours Without Giving Miranda Warnings
At around 8:00 a.m., the detectives and Hernandez arrived at the back parking lot of the CCPO. (Exs. 21C at 243:9-20; 21F at 583:18-19.) Hernandez was escorted through the back entrance and down a hallway to Room 133, which was a windowless eight-by-ten feet room with a desk, a few chairs, and a video camera disguised as a smoke alarm near the ceiling. (Exs. 21C at 167:19-23, 168:17-20, 244:11-16; 21F at 583:20-584:24.) Hernandez was not handcuffed. (Exs. 21C at 245:2-4; 21F at 584:1315.) While securing their firearms, Ramirez and Morales left Hernandez in the room with the case folder holding his possessions. (Exs. 21C at 250:17-251:14; 21F at 584:25585:4.) Upon returning to the room, Morales asked Hernandez if he wanted to take his items; Hernandez replied that he would collect them when he left. (Ex. 21F at 585:1518.)
Questioning began at around 8:10 a.m. (Ex. 21F at 619:23-25.) Hernandez was seated at the table in the corner furthest from the door, with Morales and Ramirez seated diagonally and across from him respectively. (Exs. 21C at 249:11-250:6, 251:24-252:12.) The door to Room 133 was left open. (Ex. 21C at 253:2-4.) Initial questioning focused on Hernandez's upbringing, his time in New York City, and his work at the bodega. (Ex. 21C at 252:16-256:6.)
Meanwhile, other detectives, including Detective James Lamendola (“Lamendola”), brought Rivera and Pike to the CCPO and interviewed them there. (Exs. 21A at 26:1-12; 21B at 127:14-25; 21D at 344:2-345:9; 21G at 696:10-697:25.) Shortly after Hernandez's questioning began, police purposely escorted Rivera past Room 133. (Exs. 21B at 127:14-128:1.) Hernandez asked what she was “doing [t]here” and again inquired whether the interview was about “child support.” (Ex. 21C at 257:4-22.) Ramirez repeated that they were investigating a “missing child case.” (Ex. 21C at 258:1-4.) Pike was then escorted past, but Hernandez did not recognize him. (Exs. 21A at 26:9-27:6; 21C at 258:5-16.)
At around 10 a.m., Hernandez asked to take a bathroom break. (Exs. 21C at 261:4-6; 21F at 622:10-14.) Morales escorted Hernandez to the bathroom down the hallway and then returned to Room 133, leaving Hernandez alone. (Exs. 21C at 261:8262:8; 21F at 586:5-17.) When Hernandez exited the bathroom, he briefly chatted with a detective standing in the hallway whose family Hernandez knew. (Ex. 21D at 346:4350:1.)
When Hernandez returned to Room 133, Ramirez showed him Patz's missing persons poster and asked if he recognized it. (Ex. 21C at 266:3-268:7.) Hernandez asked “why are you showing me this poster?” (Ex. 21C at 269:17.) The detectives then asked Hernandez a series of questions about the poster, whether he had seen or interacted with children at the bodega, and if he knew about the location of a bus stop by the bodega. Hernandez answered each question in the negative and stated that he had never seen the child or the poster before. (Ex. 21C at 268:16-269:8.) The detectives removed the poster but continued to ask Hernandez about his time working at the bodega. (Ex. 21C at 269:18-270:24.) Ramirez showed Hernandez a picture of Patz's parents, whom he did not recognize. (Ex. 21C at 273:14-24.)
At around 10:30 a.m., Manhattan Assistant District Attorneys (“ADA”) Armand Durastanti (“Durastanti”) and Virginia Nguyen (“Nguyen”) arrived at the CCPO and began observing Room 133 via a closed-circuit TV. (Ex. 22K at 5582:23-5585:2.) Durastanti inquired as to whether the interrogation was being videotaped and was told it was not. (Ex. 22K at 5585:20-5586:3.) An investigator from the CCPO asked Durastanti if he wanted the recording devices turned on. Durastanti responded by saying “why don't we just wait to see what happens.” (Ex. 22K at 5586:14-17.)
At around 11:40 a.m., the detectives began asking Hernandez about his religious beliefs and if he believed that he would go to heaven. Hernandez replied yes because he had “done nothing wrong and [] repented for [his] sins.” (Ex. 21C at 276:19-277:1.) Ramirez asked Hernandez if he had “something to tell.” (Ex. 21C at 277:10-11.)
Hernandez said no, and then asked, “don't you have the guys that did that kid?” (Ex. 21C at 277:10-14, 280:15-18.) At noon, Morales provided Hernandez with his medication, which he took. (Ex. 21C at 281:3-21.) Hernandez told detectives that he had schizophrenia and bipolar disorder but had not seen a psychiatrist in “a long time.” (Ex. 21D at 440:13-442:14.)
Shortly before 1:00 p.m., Morales asked Hernandez why he had not looked at the missing persons poster earlier. (Ex. 21C at 284:10-18.) Hernandez got “upset” and picked up a notebook from the table, held it in front of his face, and asked “what do you want me to do, look at it like this?” (Ex. 21C at 284:19-285:2.) Hernandez then told detectives that he was “tired of answering the same questions over and over again” and wanted to go home. (Exs. 21C at 285:25-286:3; 21G at 780:18-20, 781:15-19.) He also told detectives that they were “trying to pin this missing kid on me” and had him there “against his will.” (Ex. 21G at 712:3-5, 780:14-17, 781:10-19.) The detectives replied by confirming with Hernandez that he was there voluntarily, and that “[n]obody's asking you to say anything you don't want to say.” (Exs. 21C at 286:6-13; 21F at 628:17-629:5; 21G at 775:22-776:10.) The detectives asked Hernandez if he would answer some more questions, to which he answered “no problem.” (Ex. 21F at 636:19-22.)
At 1:00 p.m., Ramirez and Morales left for lunch and asked Hernandez if he wanted anything to eat; he declined. (Ex. 21C at 287:1-9.) Lamendola took over for Ramirez and Morales. (Ex. 21C at 287:10-17.) Lamendola asked Hernandez about his father, whom Hernandez described as an abusive alcoholic. (Ex. 21G at 703:16-704:10.) Lamendola told Hernandez “about the cyclical patterns of abuse” and that child abuse “can cause that child to abuse other children when they [are] older.” (Ex. 21G at 704:15-22.)
Hernandez began to cry and clench his stomach, complaining of stomach pain. (Ex. 21G at 704:23-705:2.) He then “laid on the floor in the fetal position and started to shake.” (Ex. 21G at 705:3-4.) Lamendola asked Hernandez if he needed anything; Hernandez replied that he was cold and needed a jacket. (Ex. 21G at 705:5-8.) Lamendola left the room with the door open, returned with a jacket, and then told Hernandez to get back into the chair. (Ex. 21G at 705:10-706:16.)
Lamendola continued to talk about the cycle of abuse. Hernandez got “angry” and accused Lamendola of “trying to trick him.” (Ex. 21G at 706:17-707:1.) Lamendola said he was trying to help Hernandez and only wanted the truth. (Ex. 21G at 707:3-4.) Lamendola asked Hernandez about his time in New York in the late 1970s, and Hernandez started to cry again. (Ex. 21G at 707:6-708:3.) As Hernandez cried, Lamendola continually told him that “the lies need[ed] to stop” and that “the truth has to come out now.” (Ex. 21G at 708:15-18, 751:1-9.) Hernandez said that he “just want[ed] to go home.” (Ex. 21G at 773:8-11, 782:24-783:2.)
Lamendola testified that he did not remember ever hearing Hernandez say the words “I want to go home.” (Ex. 21G at 756:20-757:2.)
At around 2:00 p.m., Hernandez went to the bathroom, escorted halfway there by Lamendola. (Ex. 21G at 709:3-710:24.) Hernandez returned to Room 133, followed shortly thereafter by Ramirez and Morales. (Ex. 21G at 710:20-711:24.) The door was closed. (Ex. 21G at 784:9-11.) The detectives asked Hernandez if he had anything to tell them “about what happened in 1979.” (Exs. 21C at 290:10-11; 21G at 711:25-712:2.) Hernandez asked again if they were “trying to pin what happened to that kid on [him]” and repeated that he “felt like going home.” (Exs. 21C at 290:12-16; 21G at 712:4-5, 784:2 6.) The detectives once more confirmed with Hernandez that he had come voluntarily, with which Hernandez agreed. (Exs. 21C at 290:17-20; 21F at 640:17-19; 21G at 712:1214.) They told Hernandez that they would take him home if he wanted to, but that they “had a few more questions to ask him, and then after that, he could leave.” (Exs. 21C at 290:17-20; 21F at 640:20-22.) Hernandez agreed to answer more questions. (Ex. 21F at 640:23.) Morales and Ramirez then left the room for about 15 minutes. (Ex. 21C at 290:21-291:18.) During their absence, Lamendola continued to tell Hernandez that they “needed to find out the truth about this.” (Ex. 21G at 712:15-22.)
At around 2:30 p.m., Morales and Ramirez returned. They told Hernandez that they had interviewed people from his past and revealed Pike as the man who had walked by Room 133 earlier. (Exs. 21C at 291:20-292:5; 21F at 596:8-19; 21G at 713:9-11.) Hernandez asked to speak to his wife and said he would then tell the detectives what happened. (Exs. 21C at 292:6-8; 21G at 713:13-14.) The detectives replied that Hernandez could speak to his wife but that they wanted “to hear what [he had] to say, first.” (Exs. 21C at 9-12; 21G at 713:18-20.)
Hernandez told detectives that, on May 25, 1979, he had seen Patz standing outside the bodega and asked him if he wanted something to drink. (Ex. 21G at 714:34.) Patz replied yes, and accompanied Hernandez into the basement of the bodega, where Hernandez choked him and put his body in a garbage bag. (Ex. 21G at 714:4-12.) Hernandez put the bag in a box, which he carried out of the basement and left around the corner. (Exs. 21C at 292:21-23; 21G at 714:4-12.) Hernandez gave no motive, although he denied it being sexual. (Ex. 21C at 293:5-7.) The detectives asked if Patz had been carrying anything. Hernandez said the boy had a “blue or black” book bag that Hernandez tossed behind the freezer in the basement and offered to show the detectives where it had been thrown. (Exs. 21C at 293:10-20; 21F at 598:4-10.) Detectives then embraced Hernandez. (Ex. 21G at 731:22-732:14.)
3. After Hernandez Confesses, Police Give The Miranda Warnings And Question Hernandez Again
Immediately after Hernandez's confession, Ramirez began reading Hernandez his Miranda rights. (Dkt. 21F at 598:15-17.) Video recording began at 2:53 p.m. with Ramirez asking Hernandez the final question of the Miranda warnings - “[n]ow that I have advised you of your rights, are you willing to answer questions?” (Ex. 7 at 14:53.) Before Hernandez replied, Morales interjected, “Obviously, yeah, is that right?” (Ex. 7 at 14:53.) Hernandez said “yes” and signed the advice-of-rights form. (Ex. 7 at 14:53-54.)
At the beginning of this video, Lamendola is sitting opposite Hernandez, while Ramirez is sitting diagonally, and Morales is sitting next to him.
Lamendola then asked Hernandez to “start from the beginning” and tell them “again exactly what you told us before.” (Ex. 7 at 14:55-56.) When Hernandez did not immediately reply, the detectives began to prompt him. (Ex. 7 at 14:56.) Hernandez then provided an account of how he had strangled Patz almost identical to what he told detectives prior to receiving Miranda warnings. (Ex. 7 at 14:56-15:02.) Hernandez insisted that Patz was “still alive” when he left him in the box and that the box was gone when Hernandez checked the next day. (Ex. 7 at 15:02-15:08.) Hernandez again offered to show detectives where he put the box saying “[i]f you take me I will show you” but added “I need to go to the doctor tomorrow ... to get my medication.” (Ex. 7 at 15:05.)
Morales showed Hernandez the missing persons poster and asked “[i]s this the guy?” (Ex.7 at 15:05.) Hernandez confirmed, and the detectives asked him to write a confession on the poster. Morales directed Hernandez to write “[t]his is the kid I strangled” in the margin. (Ex. 15:05.) Lamendola pointed to the poster and asked Hernandez “who is this? I want you to say it.” (Ex. 7 at 15:06.) Hernandez said it was Patz and, in response to another question from Lamendola, said he had choked the boy. Morales again pointed to the poster and told Hernandez to write “I choked him.” (Ex. 7 at 15:06.) Hernandez wrote: “I am sorry + shoke [sic] him.” (Ex. 5.)
Hernandez then told detectives how he had later confessed to Rivera and Pike. (Ex. 7 at 15:07-08, 15:15-16.) He became emotional and said “I'm going to be in jail for the rest of my life,” to which Lamendola replied “you are a sick person that needs help.” (Ex. 7 at 15:10.) When asked why he did it, Hernandez said he lost his head and “it was something that just happened.” (Ex. 7 at 15:10.)
At 3:18 p.m., at Morales' request, Hernandez initialed each page of a statement Morales had written of Hernandez's various statements. (Ex. 7 at 15:18-19.) Shortly before 4:00 p.m., Hernandez spoke with his wife and daughter in the presence of two detectives. (Ex. 21D at 319:11-320:20.) He told them that “a long time ago ... he killed a child ... a boy” who he put “in a bag [and] then ... in a box,” he did not know why he did it, and that he would “be in jail for the rest of [his] life.” (Ex. 21D at 321:6-12.)
4. Police Take Hernandez To SoHo
At around 8:00 p.m., after providing Hernandez with his medication, Morales and Ramirez drove Hernandez from the CCPO to SoHo. (Ex. 21D at 322:25-325:4.) At around 10:00 p.m., they arrived at the corner of Prince Street and West Broadway, the where the bodega had been located in 1979. (Ex. 21D at 324:15-325:22.) Hernandez led detectives around the neighborhood, pointing out where he had first seen Patz. (Ex. 21D at 326:1-4.) He then identified both 115 Thompson Street and 113 Thompson Street as possible locations where he could have left the box. (Ex. 8 at 1:45-2:42.)
5. Hernandez Is Interrogated By ADA Durasanti And Confesses Again
At around 11:00 p.m., detectives drove Hernandez to the Manhattan DA's office. (Ex. 21B at 108:13-16.) For the next few hours, Hernandez intermittently slept and ate in the presence of officers. (Ex. 21B at 110:5-112:16.) At around 2:00 a.m. on May 24, 2012, Hernandez was escorted to an interview room. (Ex. 21A at 28:8-29:24.)
At around 2:18 a.m., ADA Durastanti, who had previously observed Hernandez's interrogation at the CCPO, advised Hernandez of his Miranda rights. (Ex. 17 at 2:18-19.) Durastanti then told Hernandez “I know that you spoke to detectives yesterday ... I want you to understand that the statement you're making here to me today has nothing at all to do with that statement. I want you and I to start brand new, okay?” (Ex. 17 at 2:19.) Durastanti questioned Hernandez off and on until about 7:00 a.m., during which Hernandez again confessed to strangling Patz in the bodega's basement, although with certain details deviating from his prior confessions at the CCPO. (Ex. 17 at 2:23-38.)
At around 6:40 a.m., Durastanti and Hernandez discussed Hernandez's health. Hernandez told Duratanti of his family history of mental illness and that he was “bipolar and schizophrenic” and currently taking the anti-psychotic drug Zyprexa. (Ex. 17 at 6:4344, 6:53-57.) Around 7:00 a.m., Hernandez told Durastanti about seeing and speaking with a “vision” of his dead mother's ghost. (Ex. 17 at 6:58-59.) Hernandez was unsure if his conversation with this “vision” was just his imagination. (Ex. 17 at 6:59.)
At approximately 7:04 a.m., at the end of the interrogation, Hernandez asked Durastanti about his right to counsel in the following exchange:
Hernandez: Now, can I ask you a question. Now, I know you read my rights. Now, when you read my rights, you said that if I need an attorney, does that mean when I was talking to you if I did not want to answer you?
Durastanti: Yes.
Hernandez: Oh, that's what it meant?
Durastanti: Yes.
Hernandez: Oh.
Durastanti: That if you ... need, you can have an attorney, if you want an attorney.
Hernandez: I would like to have an attorney to represent me . when, if I
were to go to court.
Durastanti: Ok, right, if you were to go to court.
Hernandez: Yeah I want that.
Durastanti: Right, no, you will have an attorney represent you . if you go to court. . But the question, the question that I was asking was whether you wanted one now?
Hernandez: When I was talking to you?
Durastanti: Yeah.
Hernandez: No, because I don't have nothing to hide no more . I'm being honest. I said what I did . so I just feel bad what I did.(Ex. 17 at 7:04-05.)
Between 7:30 a.m. and 8:30 p.m., Hernandez was taken for arrest processing and to Central Booking. (Exs. 21D at 335:6-17; 21E at 565: 24-566:10.) On May 25, 2012 at around 5:00 a.m., Hernandez was taken to Bellevue Hospital (“Bellevue”) for psychiatric treatment. (Exs. 21E at 525:1-527:1; 21G at 675:5-19.)
D. Other Confessions
After his arrest, Hernandez made several other admissions and confessions that generally resembled his prior confessions at the CCPO and to ADA Durastanti but did not mention Patz by name. For example, while at Bellevue, Hernandez told a nurse he had “bipolar schizophrenia” and that he had “choked a person 33 years” prior and was “sorry.” (Ex. 21G at 670:23-671:1, 672:9-674:14.) Additionally, on June 27, 2012, Hernandez was transferred to Rikers Island and screened by Dr. Flavia Robotti. Hernandez told Dr. Robotti that he had “hurt a child” and had told his first wife and his “church in a prayer group, years ago, but [he] did not tell them the specifics.” (Ex. 22L at 6180:21-6181:18.) Hernandez also reported that he had “confessed what [he] did because [he] carried this weight inside all these years” and that he “ha[d] been thinking of choking [him]self.” (Ex. 22L at 6180:21-6181:18.)
In June, July, and August of 2012, Hernandez was evaluated by Dr. Michael First, who diagnosed him with schizotypal personality disorder. Throughout the multi-day evaluation, Hernandez several times admitted to seeing a little boy outside of the bodega, approaching him and asking him if he wanted a drink, choking him, and putting the body in a box. (See Ex. 22M at 6623:6-6628:11.) At trial, Dr. First testified that while certain details of Hernandez's confessions changed from one evaluation to the other, the basic components did not, although Hernandez also expressed doubts of his involvement. (Ex. 22M at 6623:6-6628:11.) Dr. First also testified that Hernandez had again related a confession to him as recently as August 2016. (Ex. 22M at 6635:1-13.)
A witness for the defense, Dr. First diagnosed Hernandez with “schizotypal personality disorder” (Ex. 22M at 6502:22-6503:5) and testified that changes in Hernandez's confessions, as well as Hernandez's fluctuating expressions of doubt, were the product of the “diminishment of the strength of a delusional conviction” (Ex. 22M at 6629:166631:21.) According to Dr. First, Hernandez's “delusional conviction was very strong” right after his arrest in May 2012 and he “absolutely believed” what he was saying was real after seven hours with the police, but only a few months later he trusted his recollection less. (Ex. 22N at 7012:5-7014:24.)
Hernandez also provided similar admissions to Dr. Michael Welner, who conducted over sixteen hours of videotaped interviews with Hernandez while he was at Rikers in 2014. (Ex. 22S at 9002:13-9006:21.) Hernandez told Dr. Welner that he had not seen the face of the child he choked during the incident, but that “he saw the picture of the child, the next time he saw the child was when he saw his photograph on the news” and that he had told his church group, Rivera, and Pike about what he had done. (Ex. 22S at 9005:17-9006:21.)
E. Pre-Trial and Trial Proceedings
Hernandez was charged with two counts of murder in the Second Degree and one count of kidnapping in the First Degree. (Ex. 22U at 10166:1-10171:4.)
1. Motion to Suppress and Huntley Hearing
On September 15, 2014, the court conducted a Huntley hearing to determine whether Hernandez's pre-arrest inculpatory statements were voluntarily made and in compliance with Hernandez's right to warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). (See Exs. 21A-21K.) The parties called witnesses to establish the facts of the May 2012 interrogation as detailed above. The parties also each called psychologists to testify to Hernandez's ability to waive his right to silence.
A Huntley hearing is a suppression hearing conducted pursuant to Dunaway v. State of New York, 442 U.S. 200, 99 S.Ct. 2248 (1979), Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965).
Hernandez's counsel called psychologist Dr. Bruce Frumkin (“Dr. Frumkin”), who testified that Hernandez could not intelligently waive his right to silence. (Ex. 21H at 870:8-20.) In 2013, Dr. Frumkin examined and conducted in-person testing of Hernandez for about ten hours. (Ex. 21H at 834:19-835:23, 842:13-843:20, 865:10-866:17, 871:7872:5.) Dr. Frumkin also reviewed Hernandez's medical records, reports by other doctors, police reports, and video-recorded interviews. (Ex. 21H at 826-36.) Dr. Frumkin noted that, during testing, Hernandez provided answers indicating that he could not appreciate the significance of his right to silence and did not understand that he could invoke his right to silence and counsel at any time. (Ex. 21H at 824:7-825:12, 857:22-24, 862:15-864:13, 870:8-20, and 966:22-967:6.) Dr. Frumkin opined that these answers, along with Hernandez's “very deficit” IQ (see Ex. 21H at 847:6-10, 850:3-4, 904:12-16, 956-957), demonstrated that he would have been incapable of making an intelligent waiver of his Miranda rights during the May 2012 interrogation. (Ex. 21H at 966:25967:6.)
The Government called psychologist Dr. Michael Sweda (“Dr. Sweda”) in rebuttal. In 2014, Dr. Sweda evaluated Hernandez for about 21 hours over six days and additionally reviewed video recordings and the reports of other doctors. (Ex. 22I at 1049:20-1067:21.) Dr. Sweda opined that, although Hernandez had “[b]orderline intellectual functioning,” he was capable of intelligently waiving his rights. (Exs. 22I at 1069:25-1070:14; 21J at 1157:3-7.) In reaching this opinion, Dr. Sweda noted that Hernandez had displayed high “adaptive functioning” throughout his life and a “reasonable understanding” of his Miranda rights in interviews. (Exs. 22I at 1061:141079:14, 1083:4-1086:19; 22J at 1147:7-20.)
On October 20, 2014, Hernandez's counsel moved to reopen the Huntley hearing to present additional testimony to support Hernandez's limited cognitive functioning. (See Exs. 24-25.) On November 24, 2014, after briefing from the parties, the trial court issued an order denying both Hernandez's motions to reopen and to suppress. (Ex. 31 at 20.) The court found that Hernandez “was not in custody at the time his initial statements were made” and, thus, his pre-Miranda statements were not subject to suppression. (Ex. 31 at 18.) “[A]ssessing the totality of the circumstances,” the court held that a “reasonable person” in Hernandez's position “would not have thought [they were] in custody.” (Ex. 31 at 17.) Because the court found Hernandez's pre-warning statement admissible, it expressly did not “reach the issue of whether the post-Miranda statements were sufficiently attenuated.” (Ex. 31 at 21.) Second, the court held that, for purposes of admissibility, Hernandez had knowingly, intelligently, and voluntarily waived his Miranda rights. (Ex. 31 at 18, 20.) In reaching its decision, the court favored Dr. Sweda's opinion over Dr. Frumkin's, finding that Dr. Sweda's “assessment was based on a more comprehensive assessment of Hernandez's capabilities.” The court also cited Hernandez's competency test scores and his “basic ability to make his way in the world.” (Ex. 31 at 19-20.)
2. Hernandez's First Trial
Hernandez's first trial began on January 30, 2015. On May 8, 2015, after deliberating for 18 days, the jury announced that it was unable to reach a verdict. The court declared a mistrial. (Ex. 56 at 42.)
3. Evidentiary Motions Prior To The Second Trial
On November 4, 2015, prior to commencement of the second trial, Hernandez filed a motion in limine to admit evidence of third-party culpability specifically as related to Ramos and Miller. (Ex. 32.) Pursuant to People v. Primo, 96 N.Y.2d 353, 728 N.Y.S.2d 735 (2001), Hernandez made offers of proof, including providing an affirmation prepared by the Manhattan DA's Office to obtain the search warrant for Miller's basement as part of the 2012 investigation. (Ex. 32 at 8-10.) On December 15, 2015, the trial court heard oral argument on various pretrial motions, including the motion to admit evidence of third-party culpability. (Ex. 39.)
Additionally, on January 4, 2016, Hernandez filed a motion to admit statements of unavailable witnesses and other evidence. (Ex. 40.) In particular, Hernandez sought to admit police reports from 1979 memorializing witness interviews and detectives' investigation notes. In a February 8, 2016 hearing on various pre-trial issues, the trial court denied Hernandez's motion without explanation. (Ex. 41 at 43-44.)
The Trial Judge stated at the hearing that he would issue a written decision as to why he denied the motion to admit the police reports from 1979 (Ex. 41 at 43:17-44:5), but no such written decision appears in the record.
On March 7, 2016, the trial court denied Hernandez's motion in limine to admit evidence of third-party culpability with respect to Miller but permitted the introduction of certain evidence about Ramos. (Ex. 42.) In its decision, the court held that Hernandez could neither “introduce evidence about statements Miller made to the FBI in 2012. Nor ... elicit testimony about the actions of a ‘scent dog' in 2012” in Miller's basement. (Ex. 42 at 3.) The court did permit Hernandez to call Miller to the stand, although it was understood that Miller was certain to assert his Fifth Amendment right against selfincrimination. (Ex. 38 at 5.)
4. Hernandez's Second Trial
Hernandez's second trial began on September 12, 2016 before presiding Justice Maxwell Wiley (the “Trial Judge”).
Justice Wiley also conducted each of the pre-trial and trial hearings discussed herein, and additionally ruled on the motion to set aside the verdict.
a. The Government's Case
The Government's case focused on the events of Patz's 1979 disappearance, the 2012 investigation into Hernandez, and evidence to establish that Hernandez was not severely mentally impaired. Since there was no physical evidence, the Government's case heavily depended on Hernandez's confessions to law enforcement, as well as the various statements Hernandez made to Pike, Rivera, and others in the years following Patz's disappearance. The Government also argued that, while incarcerated, Hernandez had begun exhibiting signs of malingering and exaggerated psychiatric symptoms.
b. Hernandez's Case
Hernandez presented substantial evidence that Ramos was responsible for Patz's disappearance and that Hernandez had a well-documented history of mental illness, poor memory, and low intellectual ability. Hernandez called various doctors as witnesses who attested that Hernandez suffered from a psychopathology called “Schizotypal Personality Disorder,” a disorder that can cause delusions, visions, and persistent distortions in a person's ability to comprehend reality. This disorder, according to Hernandez, made him especially susceptible to providing a false confession.
c. Jury Instructions And The Jury Note
The trial court delivered its jury charge on February 1, 2017. Justice Wiley instructed the jurors that it was the Government's burden to prove beyond a reasonable doubt that Hernandez had made his confessional statements voluntarily. (Ex. 22U at 10151:23-10152:2.) In particular, the Trial Judge instructed the jury that a statement is not voluntary if obtained “by the use or threatened use of physical force” or “any other improper conduct or undue pressure which impairs the defendant's physical or mental condition to the extent of undermining his ability to make a choice of whether or not to make a statement.” (Ex. 22U at 10152:6-13.) The Trial Judge told the jury that, in making its determination of voluntariness, it could consider factors like Hernandez's “age, intelligence, physical and mental condition, and the conduct of the police during their contact with [him].” (Ex. 22U at 10152:14-10153:1.) The jury also received instructions on the criteria by which to determine if a voluntary statement from Hernandez had nonetheless been a product of custodial questioning prior to the administration of Miranda warnings (Ex. 22U at 10153:20-10155:22) or was not prefaced by a knowing, intelligent, and voluntary waiver of Miranda rights. (Ex. 22U at 10155:23-10158:7.)
The jury began deliberations that same day. (Ex. 22U at 10182:12-15.) On February 2, 2017, the jury sent a note to the court which read:
We, the jury, request that the judge explain to us whether if we find that the confession at CCPO before the Miranda rights was not voluntary, we must disregard the two later videotaped confessions at CCPO and the DA's office - the confessions to Rosemary and Becky Hernandez, and the confessions to the various doctors.(Ex. 22U at 10202:5-16) (emphasis in original). The trial court solicited each party's position. The Government asserted that the appropriate answer was “no,” while Hernandez's counsel said it was “yes.” (Ex. 22U at 10202:17-19.) The court agreed with the Government that “the answer is no. That's the short answer.” (Ex. 22U at 10202:2021.) Hernandez's counsel argued that simply answering “no” was misleading and urged the court to “[a]t the very least ... instruct [the jury] that it's up to them. They don't have to disregard them but [can] if they choose to.” (Ex. 22U at 10204:16-18, 10205:7-12, see 10225:22-10226:3.) Ultimately, when the jury returned, the trial court judge read them back the question and said “the answer is, no.” (Ex. 22U at 10231:10-19.)
On February 14, 2017, the jury acquitted Hernandez of intentional murder and convicted him of felony murder and kidnapping. (Ex. 22U at 10253:22-10258:3.)
F. Motion To Set Aside The Verdict
On March 15, 2017, Hernandez submitted a motion to set aside the verdict under CPL § 330.30(2) on the basis of jury contamination. (See Ex. 52 at ECF 1.) Hernandez's attorney also requested a hearing to determine the applicable facts. (See Ex. 52 at ECF 1.)
Hernandez's counsel alleged that, immediately after the verdict was announced, second-trial jurors were seen interacting with first-trial jurors who had been watching the trial regularly and sitting with the Patz family. Hernandez's motion was supported with news clippings of articles about the trial and the jury's conduct, an attorney affidavit, and the affidavit of Joe O'Brien (“O'Brien”), a private investigator enlisted by Hernandez's counsel who reached out to jurors. (Ex. 52 at ECF 3-7, 20-46.) On March 31, 2017, Hernandez's counsel supplemented the motion with an additional memorandum of law and affidavit from O'Brien. (Ex. 53.) According to Hernandez's counsel, the investigation into juror behavior and the various affidavits and news articles showed that numerous members of the jury were aware that first-trial jurors were watching the trial and supporting the Patz family. (See Ex. 52.) Additionally, Hernandez's counsel contended that court officers improperly informed the jury of the identities of first-trial jurors. (See Ex. 53 at 2.)
On April 6, 2017, the trial court denied Hernandez's motion without holding a factual hearing because it found that Hernandez's moving papers neither alleged any ground constituting a legal basis for the motion, nor contained sworn allegations of all facts essential to support the motion. (Ex. 54 at ECF 2 (citing CPL § 330.40(2)(e).) Specifically, the court held that “[t]he lawful presence of former jurors ... does not affect any substantial rights of the defendant,” and that none of the sworn affidavits supported Hernandez's factual claims. (Ex. 54 at ECF 3-4.)
On April 18, 2017, the trial court sentenced Hernandez to concurrent terms of 25 years to life imprisonment. (Ex. 55 at 19.)
G. Appeals
Hernandez appealed his conviction to the New York Appellate Division, First Department. Hernandez advanced eleven arguments, which, in relevant part, included that: (1) the trial court erred in both failing to suppress his initial confession and in finding that he was capable of knowingly and intelligently waiving his Miranda rights; (2) various evidentiary and trial rulings violated Hernandez's right to present a complete defense; (3) the trial court erred in its response to the jury note; and (4) the trial court erred in denying, without a hearing, Hernandez's post-verdict motion alleging jury contamination. (See Ex. 56.)
On March 26, 2020, the First Department affirmed the judgment in its entirety. People v. Hernandez, 181 A.D.3d 530, 122 N.Y.S.3d 11 (2020). The court held that the trial court properly denied Hernandez's motion to suppress in determining that Hernandez was not in custody before giving his initial confession “because a reasonable innocent person in defendant's position would not have thought he was in custody.” Id. at 530, 122 N.Y.S.3d at 13. The court further affirmed the trial court's finding that Hernandez made a knowing and intelligent waiver of his Miranda rights, categorizing his exchange with ADA Durastanti at the end of his interrogation on May 24, 2012 as “demonstrat[ing] [Hernandez's] ability, rather than inability, to understand his rights.” Id.
Additionally, the Appellate Division found that the trial court's exercise of discretion in its various evidentiary rulings did not impair Hernandez's right to present a defense or any other constitutional rights and that the response to the jury note had been “correct.” Id. at 533, 122 N.Y.S.3d at 15. “Even assuming, without deciding, that the [trial] court should have added instructions on the circumstances whereby a statement may or may not be attenuated from a prior statement found to be involuntary,” the Appellate Division stated that “there is no reasonable possibility that the verdict would have been different” since Hernandez's confession to Durastanti “was fully attenuated from all of his confessions to the police.” Id. Finally, the court held that it was not an abuse of discretion for the trial court to deny the motion to set aside the verdict without holding a factual hearing because Hernandez had failed to provide affidavits from anyone with first-hand knowledge of the material facts of alleged jury contamination. Id.
On August 24, 2020, the New York Court of Appeals denied leave to appeal. People v. Hernandez, 35 N.Y.3d 1066, 129 N.Y.S.3d 376 (N.Y. 2020). Hernandez then petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on March 22, 2021. People v. Hernandez, U.S., 141 S.Ct. 1691 (2021).
H. The Instant Action
On March 18, 2022, Hernandez filed his petition for a writ of habeas corpus, arguing that relief is warranted because: (1) the trial court erred in denying his motion to suppress by both unreasonably finding that Hernandez was not in custody when he initially confessed and that Hernandez understood and could properly waive his Miranda rights; (2) the state courts erroneously ignored the Supreme Court's decision in Missouri v. Seibert governing the police tactic of interrogating a suspect before and after the reading of their Miranda rights; (3) the trial court's evidentiary rulings excluding third-party culpability information about Miller and certain police reports deprived Hernandez of the opportunity to present a complete defense; and (4) the state courts improperly ignored prejudicial contacts between court officers and jurors. (Habeas Pet. at ECF 5-10.) On March 22, 2022, this case was assigned to me for a report and recommendation. (Dkt. 5.) The Government answered the petition on September 2, 2022. (Dkts. 17-19.) Hernandez replied on December 2, 2022, at which time the Petition was fully briefed. (Dkt. 25.) The Court heard oral argument on August 23, 2023.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits a federal court's ability to provide habeas corpus relief. 28 U.S.C. § 2254(a). Under AEDPA, a state prisoner's application for a writ of habeas corpus shall not be granted unless the state court's decision:
(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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). In making that determination, a federal court must afford deference to the state court:
Deciding whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact requires the federal habeas court to ‘train its attention on the particular reasons -both legal and factual - why state courts rejected a state prisoner's federal claims' ... and to give appropriate deference to that decision.Wilson v. Sellers, U.S., 138 S.Ct. 1188, 1191-92 (2018) (internal citations omitted) (quoting Hittson v. Chatman, 576 U.S. 1028, 1028, 135 S.Ct 2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari)).
A state court decision is “contrary to” clearly established precedent when the state court applies a rule that is “diametrically different, opposite in character, or mutually opposed” to the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000) (internal quotations marks omitted) (quoting Contrary, Webster's Third New International Dictionary (1976)). Alternatively, a “court may grant relief under the ‘unreasonable application' clause if the state court correctly identifies the governing legal principle . but unreasonably applies it to the facts of the particular case.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850 (2002) (citing Williams, 529 U.S. at 407-08, 120 S.Ct. at 1520-21). This inquiry focuses not on whether the state court's application of clearly established federal law was merely incorrect or erroneous but on whether it was objectively unreasonable. Bell, 535 U.S. at 694, 122 S.Ct. at 1850 (citing Williams, 529 U.S. at 409-10, 120 S.Ct. at 1521). “Under § 2254(d), a habeas court must determine what arguments or theories supported, or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786 (2011).
AEDPA forecloses “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38, 132 S.Ct. 2148, 2149 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779, 130 S.Ct. 1855, 1966 (2010)). Accordingly, “[a] state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion.” Pine v. Superintendent, Green Haven Correctional Facility, 103 F.Supp.3d 263, 275 (N.D.N.Y. 2015) (citing Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849 (2010)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939 (2007).
Even if a trial-court error meets the standards required by AEDPA, habeas relief is not warranted unless the violation “‘had substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253 (1946)); see also Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 2327 (2007) (confirming continued applicability of Brecht under AEDPA); Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a ‘reasonable possibility' that trial error contributed to the verdict.”) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1721)); Butler v. Graham, No. 07-CV-6586, 2008 WL 2388740, *6 (S.D.N.Y. June 12, 2008) (recognizing and applying the “substantial and injurious effect” standard and citing Brecht and Fry).
The petitioner “bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The petitioner also bears “the burden of rebutting the presumption of correctness” of state court fact determinations “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Where a state appellate court summarily affirms a decision by the lower court, the federal habeas court “‘look[s] through' the unexplained decision to the last related statecourt decision that does provide a relevant rationale” and “then presume[s] that the unexplained decision adopted the same reasoning.” Wilson, U.S. at, 138 S.Ct. at 1192. That presumption may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id., U.S. at, 138 S.Ct. at 1192.
DISCUSSION
I. Hernandez's Motion To Suppress Claims
Hernandez contends that the state courts were unreasonable in finding both that he was not in custody for his pre-Miranda questioning and that he intelligently waived his Miranda rights. The Court first summarizes the relevant law and then addresses each argument in turn.
A. Relevant Miranda Law
The Fifth Amendment guarantees the right against self-incrimination. U.S. Const. Amend. V. In Miranda v. Arizona, the Supreme Court held that criminal defendants are entitled to prophylactic warnings about their right not to incriminate themselves. 384 U.S. at 467-74, 86 S.Ct. at 1624-28. “An interaction between law enforcement officials and an individual generally triggers Miranda's prophylactic warnings” only when it “becomes a ‘custodial interrogation.'” United States v. FNU LNU, 653 F.3d 144, 148 (2d Cir. 2011); Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert denied, 540 U.S. 1091, 124 S.Ct. 962 (2003) (“[a] suspect is entitled to Miranda warnings only if he or she is interrogated while ‘in custody”). Logically, determining whether an interrogation is custodial involves “two parts: (a) there must be an interrogation of the defendant, and (b) it must be while [the defendant] is in ‘custody.'” FNU LNU, 653 F.3d at 148 (citing Cruz v. Miller, 255 F.3d 77, 80-81 (2d Cir. 2001)). “[T]he term ‘interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Acosta v. Artuz, 575 F.3d 177, 189 (2d Cir. 2009) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689 (1980).
Even if a person is subject to an interrogation, Miranda warnings are only required, “where there has been such a restriction on a person's freedom as to render him ‘in custody.'” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714 (1977). “'[C]ustody' for Miranda purposes is not coterminous with ... the colloquial understanding of custody.” FNU LNU, 653 F.3d 144 at 152-53. The test for determining custody is objective and asks “(1) whether a reasonable person would have thought he was free to leave the police encounter at issue and (2) whether a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.” United States v. Faux, 828 F.3d 130, 135 (2d Cir. 2016) (citations and quotation marks omitted); see also Stansbury v. California, 511 U.S. 318, 323 (1994) (“Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation”). Where a reasonable person would not have felt free to leave, “a court must [then] ask whether, in addition to not feeling free to leave, a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with a formal arrest.” United States v. Newton, 369 F.3d 659, 671-72 (2d Cir. 2004) cert. denied, 543 U.S. 947, 125 S.Ct. 371 (2004); accord Tankleff v. Senkowski, 135 F.3d 235, 243-44 (2d Cir. 1998). “Only if the answer . is yes was the person in custody for practical purposes, and entitled to the full panoply of protections prescribed by Miranda.” Newton, 369 F.3d at 672; see also Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir. 2009) (stating that the overarching question is whether “‘a reasonable man in the suspect's position would have understood his position'” as “‘subjected to restraints comparable ... with a formal arrest.'”) (quoting Berkemer v. McCarty, 468 U.S. 420, 421-22, 104 S.Ct. 3138, 3141 (1984).)
When determining whether a person is in custody for Miranda purposes, courts evaluate the totality of “‘the circumstances surrounding the interrogation; and . [whether] given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'” United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465 (1995)). Relevant factors include: “whether a suspect is or is not told that she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation.” Tankleff, 135 F.3d at 244 (internal citations omitted); see also People v. Centano, 76 N.Y.2d 837, 838, 559 N.E.2d 1280, 1280 (1990) (identifying similar factors to determine whether an interrogation was custodial).
The first inquiry into the circumstances surrounding the interrogation is distinctly factual, and the state court's findings are afforded a presumption of correctness. Thompson, 516 U.S. at 112, 116 S.Ct. at 465; Tankleff, 135 F.3d at 243 (same); Holland v. Donnelly, 216 F.Supp.2d 227, 231 (S.D.N.Y. 2002) (“account[s] of the events leading up to [petitioner's] confession” are “findings of historical fact [that] must be presumed to be correct for purposes of [habeas] petition”) (internal quotation marks omitted). Whether, based on those facts, a reasonable person would have felt free to leave “is a mixed question of fact and law qualifying for de novo review by the habeas court.” Tankleff, 135 F.3d at 243. “[B]ecause ‘the custody test is general,' the state court's application of federal law need only fit[] within the matrix of [the Supreme] Court's prior decisions” for AEDPA purposes. Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 157 (quoting Yarborough v. Alvarado, 541 U.S. 652, 653, 124 S.Ct. 2140, 2143 (2004)). Where fair-minded jurists could disagree about custody, a state court's finding that an individual was not in custody should not be upset on habeas review. Yarborough, 541 U.S. at 664, 124 S.Ct. at 2149.
A defendant subject to custodial interrogation can waive their Miranda rights “provided [that] the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. A waiver is voluntary if “it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141 (1986). A knowing and intelligent waiver is made when the defendant agrees to speak “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id.; see also United States v. Plugh, 648 F.3d 118, 127 (2d Cir. 2011) (same); United States v. Gomez, 199 F.Supp.3d 728, 748 (S.D.N.Y. 2016) (same). It is the Government's burden to demonstrate that a waiver was knowing and voluntary. Berghius v. Thompkins, 560 U.S. 370, 383-84, 130 S.Ct. 2261 (2010). “The question of waiver must be determined on the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Plugh, 648 F.3d at 127 (quoting United States v. Spencer, 995 F.2d 10, 11 (2d Cir. 1983) (per curiam)).
Statements obtained in violation of Miranda generally must be suppressed. Dickerson v. United States, 530 U.S. 428, 443-44, 120 S.Ct. 2326, 2336 (2000); United States v. Valerio, 765 Fed.Appx. 562, 564-65 (2d Cir. 2019) (“Consistent with the Fifth Amendment privilege against self-incrimination, statements made during a custodial interrogation are generally inadmissible unless a suspect has first been advised of his right to remain silent and to have counsel present”).
B. The State Courts' Determination That Hernandez's Initial Statement Was Not The Product of Custodial Interrogation Must Be Upheld
In denying Hernandez's motion to suppress his pre-Miranda statements, the hearing court determined that Hernandez was not in custody when he made those admissions. In so finding, the court made several factual determinations regarding the circumstances that existed before Hernandez was read his Miranda rights. The court found that Hernandez “was never handcuffed or in any way physically restrained;” “accompanied the officers voluntarily in an unmarked police car;” “was left unattended in the interview room with an open door;” “was permitted to walk unaccompanied around the CCPO - an uncomplicated building with at least one clearly marked exit;” “was repeatedly told he was free to leave;” “was reminded that his presence ... was voluntary, even as he was asked if he was willing to remain and answer further questions;” “was openly and correctly informed [by detectives] that he was being questioned about an old New York City missing person's case;” “was offered lunch, and given an opportunity to take his medications;” and was not subject to accusatory or hostile questioning. (Ex. 31 at 17.)
Although recognizing that Hernandez several times expressed a desire to go home, the hearing court found that he never actually protested the officers' questioning, was not threatened with penalty if he decided to leave, and voluntarily agreed to continue the interview. (Ex. 31 at 18.) The court did find that Hernandez was lightly frisked and asked to empty his pockets, but that he was told it was for safety reasons and then offered back his property shortly after arriving at CCPO. (Ex. 31 at 18.) The hearing court concluded that, under these circumstances, a reasonable person in Hernandez's position would not have believed themselves to be in custody. (Ex. 31 at 16-17.) The Appellate Division affirmed for substantially the same reasons. See Hernandez, A.D.3d at 530-31, 122 N.Y.S.3d at 13.
Hernandez asserts that the factual record demonstrates by clear and convincing evidence that the state courts' findings that he was not in custody because he was unrestrained, told he was free to leave, and subject to non-accusatory questioning were unreasonable. The Government disagrees, arguing that the state courts' decisions were not based on an unreasonable determination of the facts and that Hernandez's proposed evidence does not overcome the presumption of correctness afforded to state courts' factual findings.
The Court is constrained to agree with the Government. To be sure, several facts lend considerable support to Hernandez's argument that he was in custody for purposes of Miranda. For instance, detectives drove Hernandez to the CCPO in a squad car; Hernandez was patted down; the interview was continuous and lasted almost seven hours; detectives deflected Hernandez's requests to go home; and detectives employed manipulative tactics. “These circumstances, however, were offset by others.” Howes v. Fields, 565 U.S. 499, 514-15, 132 S.Ct. 1181, 1193 (2012). Hernandez accompanied detectives voluntarily and was never handcuffed. The door to Room 133, the room where detectives questioned Hernandez, was sometimes left open, and Hernandez at points walked to and from the bathroom unescorted. Whether Hernandez was ever squarely told he was free to leave is disputed, but he was never told that he was not free to leave. Detectives were unarmed, offered Hernandez food and water, and did not tell Hernandez that he was under arrest or a suspect in the case.
Based on the mixed record, the Court cannot conclude that the state court made unreasonable findings of fact or that the state courts “unreasonably applied clearly established Supreme Court law in concluding that [Hernandez] was not in custody for purposes of Miranda.” Cruz, 255 F.3d at 86 (emphasis in original); Yarborough, 541 U.S. at 656, 124 S.Ct. at 2150 (listing facts both consistent and inconsistent with a finding of custody and concluding that “these differing indications lead us to hold that the state court's application of our custody standard was reasonable”); see also Nova v. Bartlett, 63 F.Supp.2d 449, 457 (S.D.N.Y. 1999), aff'd 211 F.3d 705 (2d Cir. 2000) (finding the circumstances surrounding the suspect's questioning were “not, as the Supreme Court and the Second Circuit have construed the reasonable person standard, such that a reasonable person would not have felt free to leave.”)
The Court next discusses the facts in more detail within the framework of the three guiding factors considered to determine if a subject was subject to custodial interrogation: whether Hernandez was restrained; whether he was told that he was free to leave; and whether the questioning was accusatory. See Tankleff, 135 F.3d at 243-44; Colon v. Ercole, No. 09-CV-5168, 2010 WL 9401, *26 (S.D.N.Y. Jan. 4, 2010), R & R adopted 2010 WL 3767079 (S.D.N.Y. Sept. 27, 2010).
1. Whether Hernandez Was Restrained
Hernandez argues that he was restrained, and the state courts' finding otherwise was unreasonable. Hernandez cites to many facts, including that: before entering the detectives' car, he was “patted down” and asked to place his cellphone, wallet, pill container, and personal items in the car's trunk; he never regained “actual possession” of his items; he rode in the back of the unmarked police car seated next to a detective; the car parked in a CCPO lot surrounded by a fence topped with barbed wire; he was escorted through the rear “locked” entrance of the CCPO to Room 133 without passing any other exits; he was escorted to and from the bathroom; and he sat in the furthest corner from the door in Room 133, thus requiring him to force his way passed the detectives if he wanted to leave. (Pet. Mem. at 40-44.) And, if the video of Hernandez's post-Miranda confession is any indication of the positioning during the pre-Miranda questioning, Hernandez was literally cornered by a table and a police officer just inches away from Hernandez while asking questions. (See Ex. 7 (video of Hernandez's post-Miranda confession at the CCPO).)
“Pet. Mem.” refers to Hernandez's Memorandum Of Law In Support Of Pedro Hernandez's Petition For A Writ Of Habeas Corpus filed on March 18, 2022, at Dkt. 1-2.
Testimony from the Huntley hearing suggests that the seating arrangement during the preMiranda questioning was the same or similar to that of the postMiranda questioning. Ramirez testified that, at the start of the preMiranda questioning, Hernandez sat in the chair farthest from the door, Ramirez sat opposite to Hernandez, and Morales sat in between. (Ex. 21C at 249:11-250:6, 252:1-12.) Lamendola testified that, when he was alone in the room with Hernandez, Hernandez remained in the chair farthest from the door, while Lamendola sat in the chair right next to Hernandez. Lamendola said that the chairs had rollers on them and that it was likely that he rolled closer to Hernandez and leaned towards him during the interview. (Ex. 21G at 759:10-760:19).
Hernandez is correct that those facts weigh in favor of finding that he was restrained. They are not dispositive, however, and other facts in the record militate in the opposite direction as the hearing court recited. First, Hernandez accompanied the officers voluntarily. “A person who voluntarily accompanies the police to the station for questioning, without more, is not in custody.” Harris v. Woods, No. 05-CV-5582, 2006 WL 1140888, at *25 (S.D.N.Y. May 1, 2006), R & R adopted 2006 WL 1975990 (S.D.N.Y. July 10, 2006) (quoting California v. Beheler, 463 U.S. 1121, 1122-25, 103 S.Ct. 3517, 3518-20 (1983)); see also Mathiason, 429 U.S. at 495, 97 S.Ct. at 714 (“the requirement of warnings [is not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect”); Perez v. Ercole, No. 09-CV-2180, 2011 WL 403912, at *2 (S.D.N.Y. Feb. 7, 2011) (“Although [the suspect] rode in the back seat of a police car en route to the station, he did so voluntarily, and he was not interrogated during the ride”); U.S. ex rel. Mahler v. Perez, No. 06-CV-5109, 2007 WL 1825403, at *7 (E.D.N.Y. June 21, 2007) (interrogating individual at police station does not “convert the noncustodial situation to one in which Miranda applied”).
Second, Hernandez was not handcuffed at any point before or during the preMiranda questioning. Cf. New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2632 (1984) (holding that handcuffed defendant was in custody for purposes of Miranda), and Newton, 369 F.3d at 676 (2d Cir. 2004) (“Handcuffs are generally recognized as a hallmark of a formal arrest” and “a reasonable person finding himself placed in handcuffs by the police would ordinarily conclude that ... he was restrained to a degree normally associated with formal arrest and, therefore, in custody”). While numerous uniformed and plainclothes officers arrived at Hernandez's home on the morning of May 23, 2012, none drew their guns or took out their handcuffs. See Newton, 369 F.3d at 675 (finding that “handcuffs are the problematic factor” and “the number of officers on the scene would not, by itself, have led a reasonable person in [the suspect's] shoes to conclude that he was in custody”).
Third, although Hernandez was frisked and asked to place his personal items in the car's trunk before he entered the police vehicle, the police did so for their own safety. (See Exs. 21C at 237:8-11 (Ramirez testifying that Morales asked Hernandez if he minded being patted down “for our own safety”); 21F at 582: 8-12 (Morales testimony that he asked Hernandez “for everyone's safety ... would he mind if I pat him down.”) See Harris, 2006 WL 1140888, at *25-26 (finding that the suspect voluntarily agreed to accompany the police to the police station even where the detective “did not go into [the suspect's] pockets, although he did pat [the suspect's] pockets and waist area”); Gren v. Greiner, 275 F.Supp.2d 313, 321 (E.D.N.Y. 2003) (finding suspect held at gunpoint and frisked not in custody because “[g]uns were drawn and a frisk was conducted in order to assure the safety of the police” and “[p]etitioner was not handcuffed after he was frisked and he was not placed under arrest”).
Fourth, during the questioning, Detectives Morales and Ramirez were unarmed, having secured their firearms outside of Room 133 upon entering the CCPO. (Exs. 21C at 250:17-251:14; 21F at 584:25-585:4.) At no other point did officers display weapons or otherwise threaten or use physical force against Hernandez. See FNU LNU, 653 F.3d at 155 (noting that officers never drew their weapons and did not use physical restraints when determining that suspect was not in custody); Faux, 828 F.3d at 138-39 (finding suspect not in custody for reasons including the officers never displayed weapons, threatened, or used physical force).
Fifth, although Hernandez was seated in a corner in a relatively small room with the police officers sitting between him and the door, the door was unlocked and left open at various points. (Exs. 21C at 253:2-4; 21G at 705:10-706:25.) See Mathiason, 429 U.S. at 493, 495, 97 S.Ct. at 713-14 (finding suspect who came to police station voluntarily and questioned in a closed room not “in custody”); Harris, 2006 WL 1140888, at *26 (finding the “circumstances at the police station ... not coercive” including that petitioner was “taken to a fifteen by eight foot interview room, the door to which was open a crack and was never locked”); United States v. Vado, 87 F.Supp.3d 472, 480 (S.D.N.Y. 2015) (finding no error in state court's finding that defendant was not in custody despite the presence of several facts favoring defendant's in-custody claim including that, “during the interview, at least one agent was situated between the defendant and the partially closed bedroom door.”)
Further, while the police also sat between Hernandez and the case folder containing his possessions, the police offered Hernandez back his items when they first arrived at Room 133 and Hernandez declined the offer. (Ex. 21F at 585:15-18; see also Ex. 21F at 642:4-6 (Morales testimony that he had explained to Hernandez that he could have access to his possessions)). Even before questioning began, Hernandez was left alone in the room with the case folder containing his possessions. (Exs. 21C at 250:17251:14; 21F at 584:25-585:4.) That Hernandez did not regain “actual possession” of his personal items thus was not the product of the detectives' refusal to return them to him.
The parties frame Hernandez's freedom of movement within the CCPO differently. The Government contends that Hernandez twice went to the bathroom and returned to Room 133 unescorted. In each instance, according to the Government, Hernandez was “just feet from two marked exits” and “could have easily left the building” but chose instead to “voluntarily return[] to Room 133.” (Resp. Mem. at 85.) The state courts agreed, stating that Hernandez “was permitted to walk unaccompanied around the CCPO - an uncomplicated building with at least one clearly marked exit.” (Ex. 31.) This strikes the Court as overstated. A person in Hernandez's position being in the middle of questioning by detectives, even though uncuffed and not under arrest, likely would not have felt free to simply roam around the station unmonitored.
“Resp. Mem.” refers to the Government's Memorandum Of Law Opposing Petition For A Writ Of Habeas Corpus filed on September 2, 2022, at Dkt. 18.
That said, Hernandez's argument that he was always escorted by various officers to and from the bathroom is also somewhat overstated. (Pet. Mem. at 41-42.) When he first used the bathroom, Hernandez was escorted there by Morales, who then returned to Room 133, leaving Hernandez in the bathroom. (Exs. 21C at 261:8-262:8; 21F at 586:512.) There were other officers in the hallway when Hernandez exited the bathroom, one of whom he knew and chatted with before returning unescorted to Room 133. (Ex. 21D at 346:4-350:1.) For his second bathroom trip, Hernandez was escorted halfway there by Lamendola and returned the entire way unescorted, although Lamendola was waiting by Room 133's door. (Ex. 21G at 709:3-711:24.) Though limited, Hernandez's freedom of movement at the CCPO could reasonably be considered an indication of his not being restrained.
In short, the factual record reveals competing indicia of the extent to which Hernandez was or was not restrained. While a reasonable fact finder could have found that Hernandez was restrained, another reasonable fact finder could find that he was not. The state courts' finding that Hernandez was not restrained therefore cannot be disturbed.
2. Whether Hernandez Was Free To Leave
Hernandez next argues that the record belies the state courts' conclusion that detectives repeatedly told Hernandez he was free to leave in response to his several requests to return home. (Pet. Mem. at 44.) Hernandez points to detectives' DD5 reports, which do not mention that detectives ever told Hernandez that he was free to leave, as well as testimony from the Huntley hearing demonstrating “that each time Hernandez told the detectives he wanted to return home, [they] stalled and deflected rather than honoring his request.” (Pet. Mem. at 45.) Again, however, reasonable fact finders could differ on what the evidence showed.
A DD5 is an official report “generated by the detective squad of the NYPD.” (Ex. 21C at 214:8-215:3.) Here, the various detectives used their DD5s to prepare for and to refresh their recollection during testimony. Ramirez testified that he began writing his DD5 “the very next morning” after he questioned Hernandez. (Ex. 21D at 376:2-377:24). Lamendola testified that he prepared his DD5 “probably within a couple of weeks of the interview.” (Ex. 21G at 727:21-23.)
On three separate occasions during his being questioned, Hernandez told detectives that he was there against his will and wanted to go home. (See Exs. 21C at 285:25-286:13, 290:10-20; 292:6-14; 21D at 420:15-22, 427:22-428:19; 21F at 592:16593:17, 596:19-597:4; 21G at 713:13-20, 773:1-16, 775:11-776:23, 781:10-782:5, 782:6783:6.) The parties dispute whether, in response, detectives ever told Hernandez that he was free to go home, that they would drive him home, or if any such request was conditioned on Hernandez answering more questions. (Compare Pet. Mem. at 44-47 with Resp. Mem. at 79-85.)
Even if not fully consistent, there is evidence to support a reasonable factfinder's determination that detectives did tell Hernandez that he was free to leave, although the detectives had more questions they wanted to ask. (See Exs. 21C at 290:14-20 (Ramirez's testimony that detectives told Hernandez “if you wanted to go home, we would take you home. We will drive you home, and that we had a few more questions to ask him, and then after that, he could leave”); 21F at 593:9-17 (Morales' testimony that, in response to Hernandez's first statement about going home around 1:00 p.m., detectives responded “you can leave any time you want. Your stuff; your cell phone, your keys, wallet is right there. I explained to you, you can grab it any time you feel like it. No one is forcing you to be here ... [but] there's a few other questions that we have to ask you. Would you mind if you answered them?”), 636:19-20 (Morales' testimony that he told Hernandez that “he's free to go any time” after Hernandez's request at 1:00 p.m.), 640:1723 (Morales' testimony that, after Hernandez said he wanted to go home between 2:002:30pm, Morales replied “we didn't force you to be here. Correct me if I'm wrong, you're here voluntarily . We only have a few more questions for you, okay? Do you mind answering them? If you want to go home, we can take you home” in response to which Hernandez agreed to answer more questions), 644:6-645:6 (Morales' testimony that he “could have [told Hernandez] more than one time” that he “can grab [his possessions], at any time, and he can leave, at any time” and that he “initially told [Hernandez] that [he was free to leave and could have his property] when we first came into the interview room”); 21G at 712:4-14 (Lamendola's testimony that he told Hernandez “you came here voluntarily, you came here on your own, you are free to leave whenever you want but we just want to ask you questions” in response to Hernandez's statement that detectives were trying to trick him); but see Ex. 21D at 422:13-22 (Ramirez's testimony that he - i.e., Ramirez - never told Hernandez “even though you came here voluntarily you could leave right now”). Additionally, ADA Nguyen confirmed that one of the detectives told Hernandez “when we finish here we can even drive you home but we have a few more questions would you be willing to stay and then we'll give you a ride home.” (Ex. 21I at 1025:8-22.)
ADA Nguyen also testified that Lamendola did not tell Hernandez he was free to leave after Hernandez had curled up on the floor in the fetal position and said that he wanted to go home. In response to the question, “he was never told, go then, you are free to leave, right?”, ADA Nguyen replied “No, not in response to that statement. Not at that time, no.” (Ex. 21G at 783:3-6 (emphasis added).)
As Hernandez points out, ADA Durastanti provided a sworn stipulation that “[h]e [did] not specifically recall the detectives saying, or using words to the effect, ... if you wanted to go home, we would take you home, we would drive you home ... or ... you can leave any time you want.” (Ex. 21I at 1003:7-1004:2.) At oral argument before this Court on August 23, 2023, Hernandez urged the Court to give more credence to the ADA's recounting of what happened than to the detectives' rendition since ADAs have a particular interest in seeing that justice is done and safeguarding the integrity of their investigations. (Dkt. 35 at 9:12-20.) That argument is not persuasive. Hernandez merely raises a comparative credibility determination for which there is not clear and convincing evidence to the contrary. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851 (federal habeas courts have “no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court but not by them”); see also Miller-El v. Cockrell, 537 U.S. 322, 339-40, 123 S.Ct. 1029, 1040-41 (2003). Regardless, not recalling, as ADA Durastanti attested, is not the same as denying what the detectives, and ADA Nguyen, testified to having taken place.
Hernandez argues that each time he stated that he wanted to go home, “the detectives stalled and deflected rather than honoring his request.” (Pet. Mem. at 45.) To some extent that is accurate. For example, in response to Hernandez's declaring that he wanted to go home, the detectives' reaffirmed with Hernandez that he had accompanied them voluntarily and was not forced to be there or there against his will. Hernandez, however, responded by agreeing with the detectives and continued to answer questions. (See Exs. 21C at 285:25-286:13 (Hernandez agreed that Ramirez is correct that nobody brought him there against his will and that he is there voluntarily); 21F at 592:16-593:17, 636:13-22 (Morales and Ramirez asked Hernandez if he came voluntarily, which he affirmed, and if he had been threatened or handcuffed, which he denied).) And when, at the end of the interrogation, Hernandez told detectives “I would like to speak to [my wife] ... and [then] I will tell you [what happened],” detectives replied that he could speak to his wife “all [he'd] like, but we would like to hear what you have to say, first.” (See Exs. 21C at 292:6-14; 21D at 437:2-25; 21F at 596:18-597:4.) Hernandez again agreed and then said “I'm sorry, it shouldn't have happened. I did it.” (See Exs. 21C at 292:6-14; 21D at 437:2-25; 21F at 596:18-597:4.) Ramirez testified that, if Hernandez had insisted, detectives would have let Ramirez speak to Rosemary. (Ex. 21D at 437:2-25.) A reasonable factfinder could find that the detectives' responses effectively denied Hernandez's request to leave. But a reasonable factfinder could also conclude the opposite and that the detectives' responses, and Hernandez's confirmation of them, were further assurances to Hernandez that he was free to leave.
At oral argument, Hernandez asserted that, at most, Hernandez was told he was free to leave around 1:00 p.m., about five to six hours into the interrogation and after Hernandez had first stated he wanted to go home at 12:00 p.m. (Dkt. 35 at 30:6-18.) The Court cannot find support in the record for the notion that Hernandez first asked to go home at 12:00 p.m. on May 23. Even Hernandez's briefing does not support it, stating that he first told detectives he wanted to go home and that they had him there against his will “[j]ust before 1 p.m.” (Pet. Mem. at 18.) Hernandez's argument also overlooks the testimony of Morales that he told Hernandez that he could leave and take his property “initially ... when we first came into the interview room.” (Ex. 21F at 645:1-2.)
Putting aside the question of the extent to which detectives told Hernandez he was free to leave, the record is devoid of any evidence that detectives told Hernandez that he was not free to leave. That is a significant distinction. As one court put it, “although the Court has some uncertainty about whether defendant was told he was free to leave, the central question in the custody analysis is not whether defendant was told he was free to leave, but whether the agents affirmatively conveyed to defendant that he was not free to leave.” United States v. Hester, No. 14-CR-420, 2015 WL 861749, at *2 (S.D.N.Y. Feb. 9, 2015), aff'd 674 Fed.Appx. 31 (2d Cir. 2016) (emphasis in original); see also United States v. Valerio, 765 Fed.Appx. 562, 566 (2d Cir. 2019) (finding suspect not in custody where “he was never told that he was not free to leave or would be arrested after the interview”); United States v. Belitz, No. 21-CR-693, 2022 WL 205585, at *5 (S.D.N.Y. Jan. 24, 2022) (suspect not in custody because none of the factors relied upon by the Second Circuit - “the defendant was handcuffed, the defendant was explicitly told he was not free to leave, or the agents showed their firearms or otherwise threatened or use physical force” - were present); Miller v. Superintendent of Shawangunk Correctional Facility, No. 18-CV-1762, 2020 WL 4432096, at *11 (S.D.N.Y. July 31, 2020), aff'd Miller v. Superintendent of Shawangunk Correctional Facility, 2022 WL 1669195 (2d Cir. May 26, 2022) (suspect not in custody who “was never told that he was not free to leave or threatened in any way”); United States v. Casanova, No. 11-CR-562, 2012 WL 760308, at *2 (S.D.N.Y. March 8, 2012) (defendants not in custody when “agents did not tell [them] that they were free to leave” but also did not “tell [them] that they were not free to leave”) (emphasis in original); cf. Romaszko, 253 F.3d at 759-61 (affirming district court's determination that suspect was in custody where “on at least five occasions, [suspect] asked to leave or attempted to stand up and was told that she could not”); United States v. Codrington, No. 07-MJ-118, 2008 WL 1927372, at *11 (E.D.N.Y. 2008) (finding suspect in custody where she “asked to leave to pick up her grandchildren and was told she could not”).
“In the absence of actual arrest, an interrogation is not ‘custodial' unless the authorities affirmatively convey the message that the defendant is not free to leave.” United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992). At least one court has found that, even in cases where “[t]he words and acts of the officers undoubtedly sent [suspect] mixed messages about whether he was free to leave, ... a reasonable person ... would not have felt that he had no choice but to ... confess.” United States v. Newton, 181 F.Supp.2d 157, 175 (E.D.N.Y. 2002), aff'd Newton, 369 F.3d 659 (2d Cir. 2004). Here, even if the detectives' engaged in some deflection and sent “mixed messages,” at no time did they affirmatively tell Hernandez that he was not free to leave, nor did they indicate that fact to him by handcuffing, physically restraining, or threatening him. Absent clear and convincing evidence demonstrating otherwise, the state courts' factual findings cannot be deemed to be unreasonable.
Hernandez is correct that the DD5 reports do not reference any detective at any point having told Hernandez that he was free to leave. But the DD5 reports also do not show that detectives indicated to Hernandez that he was not free to leave. And one DD5 report includes an example of detectives responding to Hernandez by reaffirming his voluntary participation, which comports with what detectives testified to in the Huntley hearing. (See Ex. 16 at ECF 3-4 (Ramirez's DD5 which states that, in response to Hernandez's 1:00 p.m. request to go home, detectives reminded Hernandez that he came willingly, that they were not accusing him or encouraging him to confess, and that they only wanted the truth, with which Hernandez agreed).)
That the state courts' orders did not mention the DD5s does not, as Hernandez argues, preclude AEDPA deference. (Pet. Mem. at 44-45; Pet. Reply at 6.) See Cruz, 255 F.3d at 86 (“deficient reasoning will not preclude AEDPA deference ... at least in the absence of an analysis so flawed as to undermine confidence that the constitutional claim has been fairly adjudicated.”) The trial court ordered full briefing and conducted a Huntley hearing on Hernandez's motion to suppress, in which it heard from various witnesses and reviewed evidence including the DD5 reports. That the final order does not mention the DD5 reports does not mean that the courts did not consider them in coming to a decision. Regardless, the role of the habeas court is to determine “the reasonableness of the state court's decision . not [to grade] their papers.” Id. at 86 (internal quotation marks and citations omitted). In this instance, the state court findings about Hernandez's freedom to leave were not unreasonable.
“Pet. Reply” refers to Hernandez's Reply In Support Of Pedro Hernandez's Petition For A Writ Of Habeas Corpus filed on December 2, 2022, at Dkt. 25.
3. Whether The Questioning Of Hernandez Was Accusatory
The state courts determined that the questioning of Hernandez at the CCPO was not accusatory. Hernandez contends that the “clear and convincing record establishes that [his] seven-hour interrogation ... was indeed accusatory, and was carefully crafted to be so.” (Pet. Mem. at 48.) In support, Hernandez points to the detectives' use of various manipulative tactics, questioning about Hernandez's faith, and insistence that Hernandez tell the truth, as well as the length of time of the interrogation. (Pet. Mem. at 47-48.) The Government counters that the detectives' strategies were not aggressive or accusatory, that they did no more than ask for the truth, and that, although the interrogation was long, the length of time alone is not controlling. (Resp. Mem. at 92-95.) Again, the record is comprised of evidence that compels that Court to conclude that the state court determination was not unreasonable.
It is undisputed that detectives implemented a “tactical plan” on the day of Hernandez's questioning. (Exs. 21A at 61:4-6; 21B at 67:18-22.) But the mere existence and execution of a plan does not constitute a custodial interrogation especially where, as here, detectives never told Hernandez that he was under arrest or a suspect in the case. (See Ex. 21I at 1003:7-13.) See Berkemer, 468 U.S. at 421, 104 S.Ct. at 3141 (1984) (“A policeman's unarticulated plan has no bearing on the question of whether a suspect was ‘in custody' at a particular time”). For example, when detectives and officers came to Hernandez's house and asked him to come with them, they told him that his name had come up in connection with an old missing person's case in New York City. (Exs. 21C at 233:25-236:20; 21F at 581:23-25.) During the interrogation, detectives reiterated that they wanted to ask Hernandez questions about a missing child from New York City. (See Exs. 21C at 258:3-4.) The detectives no doubt viewed Hernandez as a suspect. But the subjective, uncommunicated view of the detectives about Hernandez's potential guilt does not create custodial conditions. See Stansbury, 511 U.S. at 325, 114 S.Ct. at 1530 (“an officer's views concerning the nature of the interrogation, or beliefs concerning the potential culpability of the individual being questioned, may ... bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation”).
Detectives employed manipulative and even deceptive tactics during Hernandez's questioning, presumably with the goal of eliciting incriminatory statements. The police walked Daisy Rivera and Mark Pike past Hernandez, and detectives told Hernandez falsely that they had “interviewed everyone from his past.” (See Exs. 21A at 26:9-27:6; 21B at 127:14-128:1; 21C at 258:5-16, 291:20-292:5; 21F at 610:16-19, 596:8-19.) But the fact that the police engaged in such strategies, even deceptive or coercive ones, does not render Hernandez in custody and, thus, does not transform his interrogation into a custodial interrogation for which Miranda rights are required. See Mathiason, 429 U.S. at 496, 97 S.Ct. at 714 (finding that detectives' factual misrepresentations have “nothing to do with whether [a defendant] was in custody for the purposes of the Miranda rule”); Newton, 369 F.3d at 671 (stating that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it” but “Miranda does not reach so broadly” as to attach whenever questioning has some coercive quality, and that “although coercive pressure is Miranda's underlying concern, custody remains the touchstone for application of its warning requirement”); Williams v. Phillips, 433 F.Supp.2d 303, 314 (W.D.N.Y. 2006) (finding that state courts' legal conclusion that petitioner was not in custody was not unreasonable even though the police engaged in some degree of deception).
The nature of detectives' questioning - much of which focused on Hernandez's personal background - was also not sufficiently hostile for a finding of custody. See Loucks v. Capra, No. 16-CV-3115, 2019 WL 4921722, at *11 (S.D.N.Y. March 28, 2019) R & R adopted, 2019 WL 4917191 (S.D.N.Y. Oct. 4, 2019) (finding detectives' background questions about petitioner's relationship and recent contact with the victim “not so hostile and coercive to amount to a custodial interrogation”); see also Andrango v. Chappius, No. 14-CV-7716, 2015 WL 4039839, at *12 (finding that detectives initial questioning of suspect for “his pedigree information only, and despite [detective's] knowledge of [suspect's] theft” was not coercive); United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) (“the solicitation of information concerning a person's identity and background does not amount to custodial interrogation”).
Detectives did attempt to exploit Hernandez's vulnerabilities. For instance, questions about Hernandez's religious devotion and past familial abuse triggered an emotional response from Hernandez, at one point rendering him so distraught that he curled up on the ground shaking. (Ex. 21G at 703:16-705:4.) However, during that period of questioning, although describing the cycle of abuse, Lamendola never mentioned Patz or pursued an accusatory line of questioning. (See Ex. 21G at 703:16-708:18.) See Harris, 2006 WL 1140888 at *26 (finding defendant not in custody despite the use of ruses since those ruses were not “used to question Harris about [the] homicide” and “detectives never mentioned the homicide throughout this period”).
As another tactic, detectives showed Hernandez the missing persons poster for Patz. But doing so is “neither a compelling influence nor a psychological ploy designed to illicit an incriminating response” against which Miranda protects. Perez, 2011 WL 403912, at *3 (internal quotation marks omitted) (finding petitioner was not subject to custodial interrogation where detectives showed petitioner photographs of victims); see also Harris, 2006 WL 1140888, at *26-27 (finding suspect was not in custody even though detectives showed the suspect photos of the victim's body and said “‘this is why you're here, because you did this,'” reasoning that “brief accusations were not enough to transform the interview into a custodial interrogation”).
Hernandez's statements that detectives were both trying to “trick him” (Ex. 21G at 706:12-23) and “pin what happened to this kid on me” (Exs. 21C at 290:14-15; 21G at 712:4-5) are subjective impressions outside of the objective standard for analyzing custodial status. See Belitz, 2022 WL 205585, at *4 (“although it is clear ... that Belitz subjectively believed he was not free to leave, the custody inquiry for purposes of Miranda is an objective analysis”); Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529 (only “objective circumstances” are relevant to custody determination). In any event, detectives responded to Hernandez's statements by reaffirming with Hernandez that he was not there against his will; the detectives would drive him home if he wanted; and they were not trying to trick him. (Exs. 21C at 290:17-20; 21G at 707:3-5.)
Importantly, detectives never openly accused Hernandez of Patz's disappearance, but rather implored him repeatedly to tell the truth. See, e.g. Yarborough, 541 U.S. at 664, 124 S.Ct. at 2149 (finding suspect not in custody where “[i]nstead of pressuring [the suspect] with the threat of arrest and prosecution,” detectives “appealed to his interest in telling the truth and being helpful to a police officer”). Detectives' “express[ing] skepticism” about Hernandez's answers and “telling [him] not to lie is not so coercive that it amounts to custodial interrogation.” Vega, 2002 WL 252764, at *11; see also Colon, 2010 WL 9401, at *39 (finding that “detectives did not use dishonesty or misrepresentation to elicit any statements from [petitioner]” where “they simply asked [him] to tell the truth about what he knew regarding [the victim of the crime]”).
The instant case thus is not like those where suspects were determined to have been in custody based on, among other indicia, police questioning that was hostile and accusatory. See, e.g., Tankleff, 135 F.3d at 244 (finding suspect was in custody after six-hour intermittent questioning when during the final two hours, suspect was subject to “increasingly hostile questioning at the police station, during which the detectives accused him of showing insufficient grief,” told him his story was ridiculous, that they “could not accept” his explanations, and, falsely, that the victim “had woken up from a coma and accused him”); United States v. Rogers, No. 99-CR-710, 2000 WL 101235, at *14-15 (finding suspect was in custody where he was “subjected to over two hours of interrogation, during which he was informed over and over by the officers questioning him that the police believed he was involved in a heinous crime”); United States v. Guzman, 11 F.Supp.2d 292, 296-97 (S.D.N.Y. 1998), aff'd, 152 F.3d 921 (2d Cir. 1998) (determining suspect in custody where police told him he would “have to come” with them to the station and was then questioned by “a number of different officers throughout the night for more than twelve hours” with police “repeatedly [telling] him that they knew the answers he was giving were contradicted by facts” they knew).
Hernandez argues that the length of time that detectives “executed [their] plan” was per se excessive and hostile. (Pet. Reply at 7.) Seven hours of continuous questioning by two or three detectives is certainly a lengthy interrogation. See, e.g., Wilson v. Walker, No. 00-CV-5348, 2001 WL 1388299, at *3 (E.D.N.Y. Nov. 2, 2001) (court did not need to determine whether petitioner was in custody, but given that “petitioner was questioned at the police station for nearly seven continuous hours, the Court is skeptical of the state courts' ... conclusion] that [petitioner] was not in custody at the time he initially confessed”). The Court agrees that the duration and intensity of the detectives' questioning is suggestive of custody. But that “is not dispositive” as to whether the questioning is accusatory and hostile. Miller, 2020 WL 4432096, at *8 (finding no custody despite questioning for eight hours); see also Howes, 556 U.S. at 515, 132 S.Ct. at 1192-93 (finding respondent not in custody although several facts lent some support to his argument that the custody requirement was met, including that “[t]he interview lasted for between five and seven hours”).
At oral argument, Hernandez's counsel distinguished Miller from the facts here. (Dkt. 35 at 7:8-8:23, 18:1-18:12.) There are indeed differences as well as similarities between the two sets of facts. But the Court is not suggesting that Miller is determinative. To the contrary, the Court cites Miller for the proposition that the duration of questioning is not dispositive. Moreover, as here, the record in Miller contained facts suggestive of custody and others that were not.
Also of note, detectives did not deprive Hernandez of comfort, food, or other necessities. When Hernandez reacted physically to repeated questioning about his abusive father, Lamendola left the room - leaving Hernandez alone with his items and with the door open - to fulfill Hernandez's request for a jacket. (Ex. 21G at 705:6-706:17.) And detectives periodically asked Hernandez if he needed anything, offered him food, and reminded him to take his medication. (Exs. 21F at 590:8-591:4, 593:23-594:4; 21G at 708:9-11.) See Howes, 565 U.S. at 515, 132 S.Ct. at 1193 (finding incarcerated suspect not in custody where “[h]e was offered food and water, and the door to the conference room was sometimes left open”); Ortiz v. Artuz, No. 09-CV-5553, 2010 WL 3290962, at *9 (S.D.N.Y. Aug. 9, 2010) (granting deference to trial court finding that suspect who “was unrestrained, questioned in a room with an open door and no officer posted outside, and offered food and a beverage” was not in custody).
As with the other custodial elements discussed above (restraint and freedom to leave), the record contains facts that can reasonably support different conclusions about the extent to which the questioning of Hernandez was hostile and accusatory. This Court could well conclude on de novo review that Hernandez was interrogated while in custody in violation of Miranda. But that is not the standard Congress and the Supreme Court have established to grant habeas relief. See Yarborough, 541 U.S. at 656. 124 S.Ct. at 2150 (“We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state court was correct as a de novo matter”); Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357 (2002) (per curiam) (“a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the statecourt decision applied [the law] incorrectly”); Maldonado v. Greiner, No. 01-CIV-0799, 2003 WL 22435713, at *22 (S.D.N.Y. Oct. 28, 2003) (“because of the ‘difficulty of determining “custody” for purposes of Miranda .., unless the facts clearly establish custody, a state court should be deemed to have made a reasonable application of clearly established Supreme Court law in concluding that custody for Miranda purposes was not shown'”) (quoting Cruz, 255 F.3d at 85-86).
Accordingly, the Court has no alternative but to find that the state courts did not unreasonably determine the facts or unreasonably apply established law to the facts of the case in concluding that Hernandez was not in custody prior to his receiving Miranda warnings.
One might well conclude that there is a mismatch between how the reasonable person as conceived by the courts would behave and how actual people reasonably react when encountered by the police. The Court nonetheless is constrained by the reasonable person standard as currently constituted, which, as one court frames it, suggests “that a reasonable person should feel free to leave or to deny police requests for stationhouse questioning in all circumstances except where the police explicitly tell the person that he or she is under arrest or that he or she is not free to leave.” Nova, 63 F.Supp.2d at 456 (“[Cota's] holding that a reasonable person in Cota's position would feel free to disobey (deny) a police command (request) for stationhouse questioning makes it difficult for this court to apply a practical reasonable person standard in the present case”). This disparity between the real world and the theoretical reasonable person is compounded by the fact that the reasonable person standard, as currently formulated, does not take a person's IQ or mental capacity into account. The Supreme Court has found that the age of a child may be considered as a relevant circumstance in determining whether they are in custody. See J.D.B. v. North Carolina, 564 U.S. 261, 131 S.Ct. 2394 (2011). In so holding, the Supreme Court found consideration of a juvenile's age “consistent with the objective nature” of the custody analysis test “so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to any reasonable officer.” Id. at 275, 131 S.Ct. at 2404. The majority did not opine as to whether its holding should be applied to other characteristics, and the Court is not aware of any court extending J.D.B. beyond juvenile age to, for example, diminished mental capacity or limited intelligence. At least one court in a civil case has suggested that J.D.B. is limited to cases where a child is the person being questioned. C.S. v. Couch, No. 10-CV-231, 2011 WL 6888368, at *16 (N.D. Ind. Dec. 28, 2011). And at least one other court has found that testimony regarding a defendant's ability to understand that he was not under arrest “is irrelevant in determining whether Defendant was in custody.” United States v. Norrie, No. 5:11-CR-94, 2013 WL 1285864, at *16 (D. Vt. March 26, 2013). Even if the Court were to extend J.D.B.'s logic to consideration of Hernandez's diminished mental capacity, “[detectives] would have to have known about [Hernandez's] disabilities or those disabilities would have to have been objectively apparent to a reasonable officer.” U.S v. McFall, CR No. 7-411, 2012 WL 194078, at *5 (W.D. Penn. Jan. 19, 2012). Here, local police officer Mark O'Brien testified that, while outside of the Hernandez residence, Rosemary Hernandez “alluded to the fact that [Hernandez] was unstable, and someone needed to stay with him.” (Ex. 21E at 559:13-14.) Officer O'Brien testified that Rosemary did not tell him that Hernandez had a mental condition and that he neither asked Rosemary to elaborate nor relayed the information she told him to anyone else, which presumably includes the detectives who conducted Hernandez's questioning. (Ex. 21E at 559:6-16, 562:11-24.) Detectives Ramirez, Morales, and Lamendola were aware that Hernandez required medication as they initially sent Officer O'Brien back to Hernandez's residence to retrieve the medication and reminded Hernandez during questioning to take his medication. At other points during questioning, Hernandez told detectives about various ailments he had such as HIV and back problems, and the medications he took for them. (Ex. 21C at 272:14, 282:18-22.) As for mental health, Hernandez told detectives that he had been diagnosed or treated in the past for schizophrenia, bipolar disease, and assorted other mental conditions, but that he had not been to a psychiatrist in a long time. (Ex. 21D at 439:23-442:20.) Hernandez did not, however, tell detectives that he had hallucinations or that one of his drugs - Olanzapine - was an antipsychotic. (Ex. 21D at 440:20-441:4.) Nor is there any indication that detectives were aware of Hernandez's low IQ. If J.D.B. were extended to cover diminished mental capacity, Detectives' knowledge of Hernandez's conditions would be of paramount importance. As discussed below, in contrast to the objective standard governing the custody determination, an individual's characteristics, including mental capacity, are considered as part of the totality of the circumstances when determining waiver. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047 (1973) (stating that voluntariness inquiry requires examining “both the characteristics of the accused and the details of the interrogation”); Withrow v. Wilson, 507 U.S. 680, 693-94, 113 S.Ct. 1754 (1993) (listing potential circumstances for determination of waiver including “the defendant's maturity, ... education, ... and mental health”); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988) (mentioning “the individual's experience and background, together with the suspect's youth and lack of education or intelligence” as relevant to the court's determination of whether a confession was voluntary). Compare United States v. Zeng, 804 Fed.Appx. 18, 20 (2d Cir. 2020) (summary order) (affirming district court's denial of motion to suppress because “Zeng's intellectual limitations did not prevent him from understanding the content of the waiver and consent forms”), with United States v. Zerbo, No. 98-CR-1344, 1999 WL 804129, at *12 (S.D.N.Y. Oct. 8, 1999) (concluding that defendants “limited cognitive abilities and mental illness prevented him from understanding both the Miranda warning and the significance of his waiver”).
C. The State Courts' Determination That Hernandez Waived His Miranda Rights Knowingly And Intelligently Was Not Unreasonable
Following his pre-Miranda questioning and first confession, Hernandez was read, and twice waived, his Miranda rights. The hearing court found that Hernandez was not so cognitively impaired that he was incapable of making a knowing and intelligent waiver. The court summarized the findings of Dr. Frumkin, Hernandez's expert, and Dr. Sweda, the Government's expert, crediting the latter because it was “based on a more comprehensive assessment of defendant's capabilities.” (Ex. 31 at 19.) The Appellate Division affirmed, stating that Hernandez “was not so mentally ill, lacking in intelligence, or impaired by medication that he was incapable of intelligently waiving his rights” and that Hernandez's questions to ADA Durastanti about his right to counsel demonstrated that he understood his Miranda rights. Hernandez, 181 A.D.3d at 531, 122 N.Y.S.3d at 14. Hernandez contends that the state courts improperly discounted Dr. Frumkin's testimony and unreasonably concluded that Hernandez's exchange with ADA Durastanti about his right to counsel was proof of Hernandez's understanding of his rights. (Pet. Mem. at 50.)
Courts' review of a Miranda waiver is based on the totality of the circumstances, including the characteristics of the accused. Favre v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2571-72 (1979). Even if a confession is given voluntarily, it may nonetheless be inadmissible if a person lacks the mental capacity to waive knowingly and intelligently. At the same time, “[a] waiver of the right to remain silent is not invalid merely because a defendant is of limited mental capacity.” Toste v. Lopes, 861 F.2d 782, 783 (2d Cir. 1988), cert. denied, 490 U.S. 1112, 109 S. ct. 3170 (1989) (finding that petitioner waived his Miranda rights “[d]espite his low intelligence”); United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir. 1997) (“[t]he evidence of defendant's disabilities does not show that defendant was so incompetent that he was not aware both of the nature of the right being abandoned and the consequences of the decision to abandon it”) (internal quotation marks omitted); United States v. Murgas, 967 F.Supp. 695, 706-08 (N.D.N.Y. 1997) (“while [defendant] presented evidence he has a below average IQ, limited education, and impaired reading ability, these limitations do not preclude a finding that he made a knowing and intelligent waiver of his Miranda rights”).
Mental competence at the time of a confession is gauged primarily by opinion testimony from medical experts. See Blackburn v. State of Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280-81 (1960). Here, both Dr. Frumkin and Dr. Sweda agreed that Hernandez had a “very low” IQ, but that, “in terms of knowing and intelligent waiver, there is no one absolute [IQ] cutoff,” and that a person of Hernandez's IQ could both knowingly and intelligently waive. (See Exs. 21H at 845-46, 852-53, 961-62; 21I at 1078.) As applied to Hernandez, the experts both found that Hernandez was capable of knowingly waiving his rights but disagreed whether Hernandez, given his IQ and the relevant testing, could intelligently waive his right. (Compare Exs. 21H at 870:13-20, with 22I at 1069:251070:14; 22J at 1157:3-7.)
Dr. Frumkin's opinion was based on his review of medical records, reports of other doctors (including Dr. Sweda), police reports, and video-recorded interviews, as well as about ten hours of evaluation and testing of Hernandez. (Ex. 21H at 828:14-831:22, 834:19-25.) Dr. Frumkin administered the Function of Rights Interrogation (“FRI”), which is designed to measure an intelligent waiver of rights and involves several vignettes depicting a person undergoing an interrogation with follow-up hypothetical questions. (Ex. 21H at 834:19-838:2, 856:19-857:21). In response to the questions, Hernandez stated that the police “can keep [a suspect] there until he talks ... [b]ecause they want to find out what happened;” a suspect who does not talk to the police “can get in trouble ... [b]ecause he should talk if he knows anything;” and if a suspect starts speaking to the police and then decides they do not want to speak anymore it is “[t]oo late, you cannot change your mind, you have to keep going.” (Ex. 21H at 858:15-862:19.)
Based on those answers, Dr. Frumkin testified that Hernandez did not understand the right to silence and, thus, could not have intelligently waived his rights. Dr. Frumkin's opinion was unaltered by Hernandez's conversation with Durastanti about the right to counsel. (Ex. 21H at 948:2-24.) When confronted with inconsistencies in Hernandez's testimony, Dr. Frumkin said that Hernandez was not a liar but an unreliable narrator. (Ex. 21H at 930:22-931:24.)
Dr. Sweda based his testimony on 21 hours of interviews and testing with Hernandez, video recordings of prior interviews, and the reports of other doctors. (Ex. 22I at 1049:20-1067:21.) Dr. Sweda also administered the FRI test and found that, Hernandez's scores, although in the low to middle range, were about average for respondents. (Ex. 22I at 1074:22-1077:25.) In response to a Miranda-specific comprehension test administered by Dr. Sweda, Hernandez recited the Miranda rights from memory. (Ex. 22I at 1079:10-14.). Based on Hernandez's testing results, plus the fact that he passed most of his high school classes and had a long employment history, Dr. Sweda concluded that Hernandez was capable of intelligently waiving his rights. (Ex. 22I at 1078:1-4.) Hernandez's conversation with ADA Durastanti, according to Dr. Sweda, indicated that Hernandez understood and appreciated his rights. (Ex. 22I at 1089:12-1090:3.)
Hernandez does not contend that the trial court acted contrary to clearly established federal law in how it conducted the Huntley hearing. “The only question [then] ... is whether the trial court's factual determination ... was unreasonable.” Rice v. Collins, 546 U.S. 333, 342, 126 S.Ct. 969, 976 (2006). The hearing court's findings that Hernandez knowingly and intelligently waived his rights and that he understood his rights are “factual in nature and therefore entitled to a presumption of correctness.” Smith v. Sullivan, 1 F.Supp.2d 206, 213 (W.D.N.Y. 1998) (stating that trial court and Appellate Division's findings that suspect understood and intelligently waived his rights was “entitled to a presumption of correctness”); see also Whyte v. Brown, No. 09-CV-5196, 2011 WL 7100558, at *16 (S.D.N.Y. July 18, 2011) (“this Court must give deference to the state court factual findings, and Petitioner bears the burden of rebutting these findings by clear and convincing evidence”).
In making its determination, the hearing court gave more weight to Dr. Sweda's testimony than to Dr. Frumkin's. The Court did not act unreasonably in doing so. The hearing court stated that it relied more on Dr. Sweda's testimony because Dr. Sweda gave a 360-degree evaluation of Hernandez's life and adaptive functioning (Ex. 21I at 1061:14-22), unlike Dr. Frumkin, whose conclusions derived from certain tests but not Hernandez's adaptive functioning and background. (Ex. 31 at 14.) The hearing court weighed and considered the evidence and testimony of the experts and gave a reasoned explanation of why it gave more weight to one expert compared to the other. (Ex. 31 at 14-15, 19-20.) Determinations of fact by state courts are presumed correct unless shown otherwise by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Hernandez has not done so here - at best he has shown that reasonable minds could disagree on what conclusion to draw from the experts' opinions. Under those circumstances, habeas relief is foreclosed. See Amir v. Hulihan, No. 10-CV-2293, 2016 WL 6068128, at *9 (E.D.N.Y. Oct. 13, 2016) (denying habeas because “it was within the trial court's discretion to [] rely on [one expert's] conclusions” over those of a “different mental health expert who examined Petitioner at the request of the defense counsel”); Wright v. Poole, No. 02-CV-8669, 2007 WL 7714966, at *7 (S.D.N.Y. Nov. 7, 2007), R & R adopted 2012 WL 4478393 (S.D.N.Y. Sept. 28, 2012) (“[t]he admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court, and review beyond the intermediate appellate level is generally unwarranted”) (internal quotation marks omitted); Catlett v. Greiner, No. 01-CV-2548, 2001 WL 1267194, at *5 (S.D.N.Y. Oct. 23, 2001) (“this court affords a high degree of deference to the trial court's finding of fact” and “[i]t was the trial judge's function to weigh the conflicting medical opinions presented along with her own observations of the defendant”).
Hernandez insists that his exchange with ADA Durastanti undermines the reasonableness of the state court's finding because it demonstrates that Hernandez did not understand his right to counsel. (Pet. Mem. at 50-51.) At the end of his interrogation at the Manhattan DA's Office at around 7:00 a.m. on May 24, 2012, Hernandez asked Durastanti whether his right to counsel applied “when I was talking to you if I did not want to answer” and stated that he wanted an attorney to represent him in court. (Ex. 17 at 7:04-05 (emphasis added).) When Durastanti responded that the Miranda rights concerned not whether Hernandez wanted an attorney to represent him in court but rather if Hernandez wanted an attorney at the present time, Hernandez replied “No, because I don't have nothing to hide no more.” (Ex. 17 at 7:04-05.)
Both the hearing court and the Appellate Division considered the exchange between Hernandez and Durastanti. In concluding that Hernandez's waiver was intelligent, the hearing court observed the videotaped exchange and relied on Dr. Sweda's finding that “particularly significant [were] the circumstances of the actual interviews in this case, including [Hernandez's] questioning of the ADA about his access to an attorney.” (Ex. 31 at 19.) The Appellate Division held that this exchange demonstrated Hernandez's comprehension of, rather than confusion about, his Miranda rights. Hernandez, 122 N.Y.S.3d at 14. While it may be possible to reasonably interpret the exchange in different ways, the Court cannot conclude either that the hearing court unreasonably determined what the exchange signifies or that the appellate court unreasonably reached a similar conclusion.
Circumstances likely would be different if Hernandez explicitly told Durastanti that he did not understand that he had the right to have an attorney during questioning. See Cook v. Kernan, No. C 15-06343, 2017 WL 4516837, at *12 (N.D. Cal. Oct. 10, 2017) (“the most critical fact” was that the suspect “repeatedly told his interrogators that he had not understood he had the right to have an attorney at the interrogation”). But that is not what the record shows. Again, reasonable factfinders could reach different conclusions about whether Hernandez's exchange with Durastanti demonstrates a level of uncertainty and miscomprehension such that Hernandez did not intelligently waive his Miranda rights. But the evidence to support that is not clear and convincing and does not establish a basis for granting habeas relief.
II. Hernandez's Missouri v. Seibert Claims
In Seibert, the Supreme Court held unconstitutional the law enforcement practice of intentionally obtaining a confession without giving Miranda warnings, then issuing the warnings, and then obtaining a second confession. Under Seibert, “[l]aw enforcement may not circumvent Miranda by engaging in a two-step interrogation process whereby a person is questioned without the proper warnings, made to confess, Mirandized, and then questioned again.” United States v. Pritchette, 219 F.Supp.3d 379, 383 (S.D.N.Y. 2016) (citing Seibert, 542 U.S. at 609, 124 S.Ct. at 2608). A suspect's post-warning confession will generally be excluded if the Government “engage[d] in a deliberate two-step process calculated to undermine the defendant's Miranda rights ... unless curative measures (designed to ensure that a reasonable person in the defendant's position would understand the import and effect of [Miranda]) were taken before the defendant's postwarning statement.” United States v. Moore, 670 F.3d 222, 229-30 (2d Cir. 2012).
Hernandez argues that the state courts ignored Seibert in both failing to suppress his post-Miranda statements and in responding to the jury's request for instruction concerning those statements. The Government contends that Hernandez's suppression claim is procedurally defaulted, and, regardless, that Seibert does not apply. The Government further argues that Hernandez has failed to establish that the trial court's response to the jury's request was contrary to Seibert. The Court addresses each issue in turn.
A. Seibert And Suppression Of Hernandez's Post-Miranda Statements
As a threshold matter, the Court's conclusion in Section I that the state courts did not unreasonably determine that Hernandez was not in custody prior to receiving his Miranda rights and, therefore, that his pre-Miranda confession was not obtained improperly, “necessarily defeats [his] second argument, which claims that the police conducted an impermissible two-step interrogation.” Miller, 2022 WL 1669195, at *2 (internal quotation marks omitted); see also Moore, 670 F.3d at 229 (asking “was the initial statement, though voluntary, obtained in violation of the defendant's Miranda rights? If not, there is no need to go further”); United States v. Familetti, 878 F.3d 53, 62 (2d Cir. 2017) (“Because Familetti was not subject to a pre-warning custodial interrogation, we do not reach his corollary argument regarding a deliberate two-step interrogation”); see generally Seibert, 542 U.S. at 612, 124 S.Ct. at 2610 (finding post-Miranda confessions can be involuntary specifically in circumstances where law enforcement deliberately elicited a “first, unwarned and inadmissible segment” of incriminating evidence).
If, however, the District Judge disagrees with Section I conclusion's and instead finds that the state courts unreasonably determined that Hernandez was not subjected to custodial interrogation before receiving Miranda warnings, the Court will have to determine whether Seibert required exclusion of Hernandez's post-Miranda statements as well. There are three periods of post-Miranda statements at issue: the second round of questioning at the CCPO, the SoHo tour, and questioning by ADA Durastanti at the Manhattan DA's Office. The parties agree that if Hernandez's pre-Miranda statements should have been suppressed, then, under Seibert, so should his post-Miranda statements made at the CCPO. (See Pet. Mem. at 52-53; Resp. Mem. at 109; Pet. Reply at 12.) At oral argument, the Government equivocated on whether statements made during the SoHo tour should also be excluded. (Dkt. 35 at 54:10-20.) Those statements, however, would require suppression as well, given that Detectives Ramirez and Morales - the same detectives who interrogated him at the CCPO - also led the SoHo tour, did not administer new Miranda warnings, and did not take any other curative steps. (Ex. 31 at 12.) See United States v. Capers, 627 F.3d 470, 483-84 (2d Cir. 2010) (excluding statement because the pre- and post-warning interrogations involved the same personnel). That leaves open to dispute whether Hernandez's statements made to ADA Durastanti would also warrant suppression under Seibert.
1. Hernandez's Seibert Claim Is Not Procedurally Forfeited
The Government first argues that Hernandez's Seibert claim is unexhausted and procedurally forfeited because Hernandez “failed to fairly present his Seibert claim in state court;” “it is no longer possible for him to present his suppression claims to the Appellate Division;” and neither the cause-and-prejudice nor the miscarriage-of-justice exceptions apply. (Resp. Mem. at 105-08.) Adjudicating the claim now, according to the Government, would require the Court to undertake factual findings never made by the trial court. (Resp. Mem. at 105-06.) Hernandez counters that the discussion of Seibert in his briefing before the Appellate Division, although in a different context, sufficiently alerted the state courts to his Seibert claim. (Pet. Reply at 10-12.) The Court agrees with Hernandez.
AEDPA imposes threshold requirements on habeas petitioners, including that petitioners first exhaust their claims in state court. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005). The exhaustion requirement is designed to provide state courts with the “‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'” Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971)); see Galdamez, 394 F.3d at 72 (“Comity concerns lie at the core of the exhaustion requirement”).
Substantively, the petitioner must have apprised the state courts of “both the factual and the legal premises of the claim [the petitioner] asserts in federal court.” Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Although the petitioner need not “cite chapter and verse of the Constitution in order to satisfy this requirement, he must tender his claim in terms that are likely to alert the state courts to the claim's federal nature.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (internal quotation marks omitted) (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)). A petitioner may meet this requirement by presenting his claim in any of the following ways:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye, 696 F.2d at 194).
The parties agree that Hernandez raised Seibert in both his opening and reply briefs to the Appellate Division. (Resp. Mem. at 105; Pet. Reply at 10.) The Government contends, however, that Hernandez addressed his Seibert claim only as a component of his jury note argument, thereby failing to exhaust it in the suppression context. (Resp. Mem. at 105 (citing Exs. 56 at 197-99; 58 at 19-22).) The Court disagrees. Hernandez's Seibert claim centers on whether Hernandez's post-Miranda confessions are so related to his pre-Miranda confession that they required suppression. That same legal argument underlies both his suppression and his jury note claims. Irrespective of the argument's location in his briefing, Hernandez sufficiently presented the sum and substance of his Seibert claim to the state courts.
“Even [though Hernandez] did not fully articulate a claim under Seibert on his direct appeal” as grounds for suppression, “he did, nonetheless, explicitly claim a Fifth Amendment violation (i.e., a federal constitutional violation) based on the way in which his interrogation was conducted - where a portion of the questioning was conducted preMiranda warnings and another portion was conducted post.” Bracey v. Graham, No. 16-CV-7919, 2020 WL 12178000, at *28 (S.D.N.Y. Apr. 27, 2020), R & R adopted, 2021 WL 4950890 (S.D.N.Y. Oct. 25, 2021). The requirement for Hernandez to place “before the state court essentially the same legal doctrine he asserts in his federal petition” does not mean “that there can be no substantial difference in the legal theory advanced to explain an alleged deviation from constitutional precepts.” Daye, 696 F.2d at 192,192 n.4. Rather, for arguments about whether a confession was voluntary, “all that is needed to alert the state courts to the constitutional nature of the claim is the exposition of the material facts and the assertion that the confession was not voluntary,” a standard Hernandez more than meets. Id.
Hernandez's state court briefs expressly discuss Seibert's substantive legal holding as applied to the relevant facts. (Exs. 56 at 197-99; 58 at 19-22.) In his opening brief to the Appellate Division, Hernandez summarized and analogized Seibert to the facts of his case, alleging that detectives “employed the ‘question-first' technique - struck down in Seibert” when they “‘played psychologist' with [Hernandez] for hours, without reading him his rights, until he confessed [and] [t]hen ... Mirandized him and asked him to ‘start telling us again exactly what you just told us before.'” (Ex. 56 at 198.) That presentation is more complete than is required by the Second Circuit to satisfy the habeas exhaustion requirement. See, e.g., Jackson v. Edwards, 404 F.3d at 619 (finding claim fairly presented when “the substance of the federal habeas corpus claim is clearly raised and ruled on in state court, although the federal principle may initially be attached to a different label than the one ultimately affixed in federal habeas proceedings”) (internal citations omitted); Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991) (a “petitioner's citation to [a constitutional provision] in a heading in his brief [is] sufficient[] [to] alert[] the state courts to the federal constitutional nature of the ... claim”); Samuel V. LaValley, No. 12-CV-2372, 2013 WL 550688, at *2 (E.D.N.Y. Feb. 12, 2013), aff'd, 551 Fed.Appx. 614 (2d Cir. 2014) (stating that petitioner's single reference to Strickland satisfied the exhaustion requirement even without “mention of either of Strickland's two requirements or any arguments as to how defense counsel's failure to object was objectively unreasonable or prejudicial”); cf. Howe v. Scully, 582 F.Supp. 277, 279 (S.D.N.Y. 1984) (finding petitioner's claim unexhausted “where his appellate brief failed to cite a single case discussing insufficiency of the evidence in federal constitutional terms”).
Although Hernandez did not cite Seibert by name either prior to or at trial, he repeatedly invoked Seibert's substance and articulated his claims in a manner that specifically called Seibert to mind. In moving to reopen the Huntley hearing, Hernandez argued that his questioning and confessions were part of a “single continuous chain of events” for which “[t]here was no attenuation, and no intervening time or circumstances.” (Ex. 25 at 37-38.) And at trial when discussing the jury note, Hernandez's counsel described the factual circumstances in ways reminiscent of Seibert, arguing that “[i]f the initial confession is flawed, everything else fails,” “[e]verything is a product of the initial confession,” (Ex. 22U at 10203:1-10204:6) and that detectives “got a confession out of [Hernandez], first, read him Miranda rights, and then continued to hold him in custody for further questioning” (Ex. 22U at 10222:6-8). Hernandez went on to argue for the suppression of his confession to Durastanti because Hernandez was in continuous police custody and Durastanti was present for the first confession (Ex. 22U at 10223:11-19), both contentions evocative of Seibert's standards for establishing whether a post-Miranda confession requires suppression based on an impermissible pre-Miranda confession. See Seibert, 542 U.S. at 620-22, 124 S.Ct. at 2615-16 (Kennedy. J, concurring).
The Court also agrees with Hernandez that the Government's comparison to Jones v. Murphy, 694 F.3d 225 (2d Cir. 2012) is inapt. In Jones, the Second Circuit denied petitioner's habeas petition, finding that his Seibert claim was unexhausted because Jones' briefs on appeal “did not so much as cite Seibert, nor did he in any way articulate the core of a Seibert claim.” Id. at 247. That is wholly different from the instant circumstance. Hernandez cited to Seibert extensively in his appellate briefs, recited Seibert's core legal holdings, and linked them to the relevant facts. (See, e.g., Exs. 56 at 197-99; 58 at 19-22.) The state court was properly alerted to the law and facts relevant to the thrust of the Seibert claim irrespective of whether it appeared in the suppression or jury note context.
“[T]here are instances” - like the case here - “in which ‘the ultimate question for disposition' will be the same despite variations in the legal theory or factual allegations urged in its support.” Picard, 404 U.S. at 277-78, 92 S.Ct. at 513. Hernandez sufficiently presented the relevant facts and law for his Seibert claim to the state courts. His raising those arguments in relation to the jury's note, rather than in support of suppression, is of no moment. Hernandez's state court submissions satisfy the exhaustion requirement and preserved his Seibert claim.
2. Hernandez's Seibert Suppression Claim Nonetheless Fails
Even though not procedurally defaulted, Hernandez's Seibert claim vis-a-vis suppression does not survive habeas scrutiny. Analysis of a Seibert claim follows several steps. “First, was the initial statement, though voluntary, obtained in violation of the defendant's Miranda rights? If not, there is no need to go further.” Moore, 670 F.2d at 229. If the initial statement was obtained in violation, then the government must establish by a preponderance of the evidence, and in light of the totality of the objective and subjective evidence, that it did not engage in a deliberate two-step process. Id. at 22930. To make that determination, courts review the totality of the circumstances, including: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.” Seibert, 542 U.S. at 615, 124 S.Ct. at 2612; see also Capers, 627 F.3d at 483-84 (same). If detectives are deemed not to have engaged in a deliberate two-step process, the suspect's post-warning statement is admissible so long as it was voluntary. See Oregon v. Elstad, 470 U.S. 298, 314, 318, 105 S.Ct. 1285, 1296, 1298 (1985) (finding that the “subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement” and that “[t]he relevant inquiry” is whether “the second [post-warning] statement was ... voluntarily made”).
If the police did engage in a deliberate two-step interrogation process, courts “next consider whether any curative measures intervened to restore the defendant's opportunity to voluntarily exercise his Miranda rights.” Capers, 627 F.3d at 484; see Seibert, 542 U.S. at 621, 124 S.Ct. at 2615 (Kennedy, J., concurring) (“When an interrogator uses this deliberate, two-step strategy ... postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps”). Such curative measures can include, for example, “a substantial break in time and circumstances between the prewarning statement and the Miranda warning” or “an additional warning that explains the inadmissibility of the prewarning custodial statement.” Seibert, 542 U.S. at 622, 124 S.Ct. at 2616 (Kennedy, J., concurring).
Hernandez argues that Durastanti's interrogation of Hernandez was part of “one long interrogation” (Pet. Mem. at 54) in which detectives engaged in questioning that “'was systematic, exhaustive, and managed with psychological skill,'” as was the case in Seibert (Pet. Reply at 13 (quoting Seibert, 542 U.S. at 616, 124 S.Ct. at 2612)). According to Hernandez, Durastanti's sole curative step - “a twelve-second statement made at 2:19 a.m.” in which Durastanti stated that he knew Hernandez had spoken with detectives the previous day, but that their conversation had “nothing at all to do with that statement” and they were “start[ing] brand new” - was insufficient because “it did not ‘explain[ ] the likely inadmissibility of the prewarning custodial statement [ ].'” (Pet. Mem. at 54 (quoting Seibert, 542 U.S. at 622, 124 S.Ct. at 2616 (Kennedy, J., concurring).) Hernandez also argues that “the ten-hour gap between Hernandez's statements made while at the CCPO, including the SoHo walk-around, and at the [DA's] office” was not “a break significant enough to ‘allow the defendant to appreciate that he retained the right to remain silent or provide ample opportunity to reassess his situation.'” (Pet. Reply at 15 (quoting Pritchette, 219 F.Supp.3d at 387).)
The Government counters that, even if Hernandez had been subjected to custodial interrogation at the CCPO, suppression of Hernandez's confession to Durastanti would not be required. The Government points to the “roughly 10 hours ... and about six hours” that elapsed between Durastanti's interrogation and Hernandez's questioning at the CCPO and the SoHo tour respectively, during which time Hernandez spoke with his wife and daughter, ate dinner, and slept. (Resp. Mem. at 110.) And the Government underscores that the interviews were dissimilar and non-continuous as Durastanti's “was conducted in a different state by a different interlocutor than the initial questioning.” (Resp. Mem. at 110.) The Government also highlights that Durastanti “elicit[ed] another waiver of [Hernandez's] Miranda rights” and “stressed that he wanted to start ‘brand new' with [Hernandez] and that their conversation had ‘nothing at all to do' with [Hernandez's] [prior] conversations with detectives.” (Resp. Mem. at 110.)
As explained above (and further below), the parties' briefing on direct appeal included similar Seibert arguments in the context of the Trial Judge's response to the jury note. (See Exs. 56 at 197-201; 57 at 204-05; 58 at 19-22.) In its decision based on those submissions, the Appellate Division held, in the context of the court's response to the jury note, that “there is no reasonable probability that the verdict would have been different . in light of the strong evidence that [Hernandez's] confession to [Durastanti] was fully attenuated from all of his confessions to the police, as well as corroborated by defendant's various confessions to civilians.” Hernandez, 181 A.D.3d at 533, 122 N.Y.S.3d at 15.
The Appellate Division's conclusion undermines Hernandez's argument that the state courts ignored Seibert. Although brief and lacking explicit reference to Seibert, the Appellate Division's statement shows that it considered what Seibert requires - assessment of the relationship between the pre- and post-Miranda-warning questioning - and concluded, based on the record, that the confession obtained during questioning by Durastanti was “fully attenuated from all his confessions to the police.” The Appellate Division thus rejected Hernandez's argument that he was subject to one continuous line of questioning. To be sure, the Appellate Division did not address “deliberateness” of the persons engaged in the multi-step questioning. But the court's conclusion that the initial pre-Miranda-warning questioning and the questioning by ADA Durastanti was “fully attenuated” reflects a determination that, even if detectives and ADA Durastanti deliberately implemented a two-step interrogation, “measures intervened to restore the defendant's opportunity voluntarily to exercise his Miranda rights.” Capers, 627 F.3d at 484.
Thus, even if the state courts did ignore Seibert in the context of considering suppression of Hernandez's post-Miranda statements, the Appellate Division's “fully attenuated” conclusion would render that lapse harmless error. To overcome that finding, as further explained below, Hernandez would have to show that no fair-minded jurist could reach the Appellate Division's conclusion on attenuation. Hernandez cannot clear that high bar; reasonable jurists could arrive at different conclusions as to whether curative measures existed sufficient to break the chain and render Hernandez's subsequent confession to Durastanti fully attenuated. On one hand, for instance, the lengthy time that elapsed between the two confessions supports a finding of attenuation, as does Durastanti's initial statement to Hernandez about starting brand new. On the other hand, for example, Hernandez remained in custody throughout, and Durastanti's Miranda warnings omitted any explanation of the likely inadmissibility of Hernandez's prior statements. Given these varied facts, reasonable jurists assessing the record could disagree whether the intervening measures were sufficiently curative.
At oral argument, Hernandez pointed to Pritchette, 219 F.Supp.3d 379, as support for finding an unconstitutional two-step interrogation and insufficient attenuation between pre- and postMiranda statements. (Dkt. 35 at 37:15-38:18.) In Pritchette, detectives conducted an unrecorded preMiranda interrogation in which Pritchette confessed. Id. at 382. Thirty minutes elapsed before detectives brought Pritchette back into the same room, turned on the recording devices, Mirandized him, and elicited another confession. Id. Pritchette was then held in state custody for a month before he was arrested by federal authorities, Mirandized again, interviewed by federal agents, and once again confessed. Id. at 382-83. The Court found that both of Pritchette's subsequent confessions should be suppressed as the product of an improper two-step interrogation. Id. 383-88. While there are some similarities between Pritchette and the instant case, there also are significant differences. As here, the first postMiranda confession in Pritchette was subject to suppression as it took place just a short while after the preMiranda questioning and confession, and was conducted in the same room by the same agents. Id. at 38386. Unlike here, the second postMiranda confession in Pritchette, although far more attenuated in time than here, was obtained after the agents conducting the interrogation explicitly communicated that it was a continuation of the prior interrogations and reminded Pritchette that he had already confessed and that the confession had been recorded. Id. at 386-88.
The determination that Hernandez's post-Miranda questioning was fully attenuated from his pre-Miranda questioning necessarily means that suppression of his post-Miranda statements would not be warranted under Seibert. As with the question of whether Hernandez's pre-Miranda confession should have been suppressed, this Court could well reach a different conclusion than the state courts did regarding suppression of Hernandez's post-Miranda statements to Durastanti. But, once again, as a habeas court, this Court may not simply stand in the shoes of the trial court, reassess the facts, and reach its own conclusion. Constrained by the deference required by AEDPA, the Court cannot conclude that the Appellate Division's attenuation conclusion was unreasonable. Thus, even if the District Judge disagrees with this Court's recommendation on Section I and proceeds to a full Seibert analysis, Hernandez's claim that the confession to Durastanti should be suppressed would not succeed.
B. Seibert And The Trial Court's Response To The Jury Note
Hernandez argues that the state courts' jury note rulings improperly ignored Seibert, should be reviewed de novo, and were not harmless error. (Pet. Mem. at 55-57, 67-68.) The Government disagrees, asserting that AEDPA's deferential standard applies, the state courts did not act unreasonably, and, regardless, any error was harmless. (Resp. Mem. at 112-13, 122-25.) Although the Court finds that, even under AEDPA's deferential standard, the state court acted unreasonably in ignoring Seibert when responding to the jury's request for clarification, the Court ultimately agrees with the Government that the error was harmless under the prevailing standard.
1. The Relevant Jury Note Facts
On February 1, 2017, the Trial Judge delivered final instructions to the jurors. The jury was instructed on “the law as it relates to testimony concerning statements of the defendant made to law enforcement,” as well as the standards for determining voluntariness, custodial interrogation, and Miranda waiver, but were provided no instructions on how to consider Hernandez's post-Miranda confessions depending on what the jury determined with respect to the pre-Miranda confession. (Ex. 22U at 10151:4-10158:12.) The following day, the jury sent a note “request[ing] that the judge explain to us whether if we find that the confession at CCPO before the Miranda rights was not voluntary, we must disregard the two later videotaped confessions at CCPO and the DA's office[,] the confessions to Rosemary and Becky Hernandez[,] and the confessions to various doctors.” (Ex. 22U at 10202:5-16 (emphasis in original).) After discussion with the parties, and over objection of Hernandez's counsel, the Trial Judge concluded that, because the jury's question “is very carefully worded ... I am going to say no because that's it.” (Ex. 22U at 10204:19-21.)
On direct appeal, the parties fully briefed the issue of whether the Trial Judge's terse “no” response was legally incorrect under Seibert. (Ex. 56 at 197-201; see also Exs. 57 at 202-09; 58 at 19-22.) The Appellate Division rejected Hernandez's claims, finding that “[t]he court provided a meaningful response to a jury note on the subject of the voluntariness of confessions [and] [g]iven the precise wording of the note, the court's brief response was correct.” Hernandez, 181 A.D.3d at 532-33, 122 N.Y.S.3d at 15 (internal citations omitted). As recited above, the Appellate Division additionally held that, even if the Trial Judge should have instructed the jury on attenuation, “there is no reasonable possibility that the verdict would have been different had those instructions been given, in light of the strong evidence that defendant's confession to [Durastanti] was fully attenuated from all of his confessions to the police.” Id. at 533, 122 N.Y.S.3d at 15 (internal citations omitted).
2. AEDPA Deference Applies
Hernandez initially argues that the state courts' failure to “acknowledge . let alone [correctly] apply” Seibert with respect to the jury note issue requires the Court to conduct a de novo review. (Pet. Mem. at 55.) The Government counters that, although neither discussing nor citing Seibert, the Appellate Division's decision was a ruling on the merits. (Resp. Mem. at 112-13.) The Government is correct - despite the Appellate Division's not having cited Seibert, the Court is still required to apply the deferential AEDPA standard. Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 853 (2005) (“Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation”); Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (per curiam) (observing that “the state court['s] fail[ure] to cite ... any federal law” was not required).
A state court's adjudication of a state prisoner's federal claim is on the merits when it: “(1) disposes of the claim ‘on the merits,' and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer [under] § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.” Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (emphasis added); see also Richter, 562 U.S. at 98, 131 S.Ct. at 784 (“a state court need not cite or even be aware of our cases under § 2254(d)” to adjudicate on the merits); Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (“even absent citation of federal case law, [a state court's determination] is a determination ‘on the merits'” requiring deference); Jiang v. Larkin, No. 12-CV-3869, 2016 WL 1718260, at *13 (S.D.N.Y. April 28, 2016) (“even where a state court decision does not explicitly reference a defendant's federal claim or federal case law,” AEDPA deferential standard applies).
The Appellate Division's decision disposed of Hernandez's jury note claim on the merits, determining that the court's response was “correct.” Hernandez, 181 A.D.3d at 532-33, 122 N.Y.S.3d at 15. And, even if the Appellate Division had not addressed Hernandez's Seibert claim regarding the jury note, the statement that it had “considered and rejected [Hernandez's] remaining claims,” id. at 533, 122 N.Y.S.3d at 16, would be sufficient for proper disposition. See Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004), cert denied, 543 U.S. 872, 125 S.Ct. 110 (2004) (finding that “a claim was adjudicated on the merits where it was one of the remaining contentions that the Appellate Division stated were ‘without merit'”). The Court thus reviews Hernandez's claim under AEDPA's deferential standard.
3. The Trial Court's Response To The Jury Ignored Seibert
Although meriting deference, the trial court's response to the jury was so deficient as to deprive Hernandez of due process. The jury asked the Trial Judge to “explain” whether they “must” disregard the post-Miranda confessions if they found that the preMiranda confession was not voluntary. The Trial Judge answered “no,” yet did not provide any guidance to the jury on how they were to consider the relationship between the pre-and post-Miranda confessions. That violated Hernandez's due process rights, and the Appellate Division's conclusion otherwise was unreasonable.
Generally, improper jury instructions in a state trial will not form the basis of federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) (“it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”). But habeas relief is warranted when an instruction is so deficient as to constitute a federal due process violation. See id. at 72, 112 S.Ct. at 482; Cupp v. Naughten, 414 U.S. 141, 145-46, 94 S.Ct. 396, 400 (1973). Similarly, when responding to a jury question, “[d]etermination of the appropriate answer rests within the discretion of the trial court, so long as the answer given does not deprive a defendant of a constitutional right.” McShall v. Henderson, 526 F.Supp. 158, 161 (S.D.N.Y. 1981).
The Government is correct that, as a general rule, there is no federal constitutional right to a jury determination regarding voluntariness of a statement. See Lego v. Twomey, 404 U.S. 477, 490, 92 S.Ct. 619, 927 (1972) (“the admissibility of evidence is a question for the court rather than the jury” and both judge and jury are not required to pass “upon the admissibility of evidence when constitutional grounds are asserted for excluding it”); United States v. Anderson, 394 F.2d 743, 747 (2d Cir. 1968) (“no constitutional requirement” of a jury determination of voluntariness”); Fernandez v. Lee, No. 10-CV-9011, 2012 WL 4473294, at *12 (S.D.N.Y. July 12, 2012), R & R adopted, 2012 WL 4478998 (S.D.N.Y. Sept. 28, 2012) (“Because the trial judge considered and ruled on the voluntariness of Mr. Fernandez's statements ..., the Constitution does not guarantee him the right to have a jury consider the same issue”); Colon, 2010 WL 9401, at *42 (“The United States Constitution does not give a criminal defendant the right to a jury determination regarding statement voluntariness”).
In reaching that conclusion, courts have been compelled by the notion that requiring the inclusion of a jury charge on voluntariness absent a request could interfere with a defendant's trial tactics. See Anderson, 394 F.2d at 747-48. Even where a defendant has requested an instruction on voluntariness, “whether ... the [voluntariness] issue should also be submitted to the jury” is an open question. Id. at 747; cf. Lake v. Greiner, No. 98-CV-6289, 2003 WL 21508326, at *11 (E.D.N.Y. 2003), aff'd 169 Fed.Appx. 606 (2d Cir. 2006) (“Petitioner cites no Supreme Court case, nor is this court aware of any, that has held that a voluntariness charge is per se required even where defendant does not ask for it”). Nor, apparently, does New York state law require the trial court to instruct the jury on attenuation. See People v. Rabady, 28 A.D.3d 794, 795, 812 N.Y.S.2d 884, 844 (2d Dep't 2006) (citing cases).
As explained above, that concern for interfering with defendant's trial tactics is moot because Hernandez affirmatively requested that the jury be instructed on voluntariness, and, in response to the jury's note, that they be instructed beyond simply being told “no.”
Regardless, the Court is not confronted here with the question of whether an instruction on voluntariness or attenuation should have been given in the first place. That is because the trial was largely about Hernandez's confessions, including the extent to which they were voluntary. The Trial Judge did instruct the jury about voluntariness - in general - but without providing any direction on how to consider voluntariness of postMiranda confessions vis-a-vis pre-Miranda confessions. The jury's note sought guidance on that very issue, yet the Trial Judge purposefully declined to instruct the jury about attenuation despite defense counsel's objection to the intended answer, request for a specific additional instruction, and, request “[a]t the very least” that the Trial Judge instruct the jury “that it's up to them. They don't have to disregard [the subsequent confessions] but if they choose to [they may].” (Ex. 22U at 10202:25-10204:6; 10204:16-18.)
The Trial Judge's response of “no” to the jury's request for explanation of how to treat the subsequent confessions improperly ignored Seibert and, thus, violated Hernandez's Fifth Amendment rights. Seibert is not a mandate that subsequent confessions must be suppressed. Seibert, 542 U.S. at 618-19, 124 S.Ct. at 2614 (Kennedy J., concurring) (“not every violation of the rule requires suppression of the evidence obtained”). Rather, as explained by the Second Circuit, Seibert prescribes a stepwise analysis to determine if subsequent confessions following an initial improper un-Mirandized confession are part of a deliberate two-step interrogation and should be suppressed absent curative measures. See Moore, 670 F.3d at 229-30.
Here, the jury requested an explanation whether finding Hernandez's initial confession involuntary would require them to disregard his subsequent confessions. Once the jury made this request, it was incumbent on the Trial Judge to provide supplemental instruction that indicated the proper analysis as dictated by federal constitutional law. The Second Circuit has underscored the need for particular care that must be given to responding to juries' questions:
A supplemental charge must be viewed in a special light. It will enjoy special prominence in the minds of the jurors for several reasons. First, it will have been the most recent, or among the most recent, bit of instruction they will have heard, and will thus be freshest in their minds. Moreover, it will have been isolated from the other instructions they have heard, thus bringing it into the foreground of their thoughts. Because supplemental instructions are generally brief and are given during a break in the jury's deliberations, they will be received by the jurors with heightened alertness rather than with the normal attentiveness which may well flag from time to time during a lengthy initial charge. And most importantly, the supplemental charge will normally be accorded special emphasis by the jury because it will generally have been given in response to a question from the jury.Arroyo v. Jones, 685 F.2d 35, 39 (2d Cir. 1982). And “[w]hile the trial court has discretion in giving supplemental instructions, it must respond meaningfully to the jury's inquiry.” Ariza v. Lee, No. 13-CV-359, 2013 WL 6008920, at *7 (S.D.N.Y. Nov. 13, 2013).
The Trial Judge's answer of “no” was technically correct but neither meaningful nor responsive to the jury's request for the court to “explain” what it must do. The proper analysis, as dictated by Seibert, requires determining first whether the two-step process implemented by law enforcement was deliberate, and second, whether intervening, curative measures adequately separated the multiple rounds of questioning. Despite the jury's request for the Trial Judge to explain whether they must disregard Hernandez's post-Miranda confessions if they found that his pre-Miranda confession was not voluntary, the Trial Judge provided no explanation, mentioning neither deliberateness nor curative measures, let alone factors that go into making those determinations. Having failed to do so was constitutional error as it left the jury with no direction how to apply the analysis required by Seibert and, thus, “den[ied] [the] defendant the opportunity to raise a ‘highly credible defense.'” Jackson v. Edwards, 404 F.3d at 625; see Rodriguez v. Heath, 649 Fed.Appx. 136, 139 (finding the judge's “charging error deprived Rodriguez, who had confessed to the fatal shooting, of a ‘highly credible defense'” and, thus, violated his due process rights).
Nor was the Trial Judge's improper response to the jury note mitigated by the rest of the charge. See McTiernan v. Tedford, No. 21-CV-1543, 2023 WL 3407600, at *7 (S.D.N.Y May 12, 2023) (“If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution”) (internal quotation marks omitted); Rodriguez, 649 Fed.Appx. at 139-40 (finding deficient jury instruction merited habeas relief where rest of the charge provided no mitigation); see generally Henderson v. Kibbe, 431 U.S. 145, 153 n.10, 97 S.Ct. 1730, 1736 n.10 (1977) (“In determining the effect of this instruction ... we accept ... the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge”) (internal quotation marks omitted).
In responding to the jury's note, and in addition to answering “no,” the Trial Judge read back his prior instruction on voluntariness, custodial interrogation, and Miranda waiver. But as was the case when he first read the charge, the Trial Judge did not instruct the jury on how to treat subsequent confessions if they found Hernandez's pre-Miranda confession to be involuntary. Cf. Arroyo, 685 F.2d at 40 (finding defective supplemental charge not cured by trial court's initial instructions that “did not mention any presumption as to intent [and] did not give the jury an assistance in how to apply a presumption -whether they were free to disregard it, whether it was merely something they might infer, or whether the defendant had to overcome it”); Morales v. Miller, 41 F.Supp.2d 364, 377 (E.D.N.Y. 1999) (finding the refusal to provide supplemental instruction was not error where judge “had already instructed the jury on intoxication in his original charge”).
Indeed, in concluding that the correct answer to the jury's question was simply “no,” the Trial Judge made it clear that he purposefully was avoiding instructing the jury about attenuation. As he explained, “there is no fruit of the poisonous tree law for the jury;” he did not “want to get into where the fruit of the poisonous tree doctrine meets jury instructions on voluntary confessions;” and he did not “see any other way of answering this that doesn't involve then instructing them on attenuation, and ‘cat out of the bag[,]' [ ] and basically replaying the Huntley hearing, which is not their function here, I don't think.” (Ex. 22U at 10204:8-15, 10206:19-22, 10225:17-21.) The Trial Judge's error thus was not ameliorated by the charge as a whole, and the Appellate Division's conclusion that the Trial Court's “brief response” was “reasonable” and “correct” ignored the precepts of Seibert and was unreasonable. Hernandez, 181 A.D.3d at 532-33, 122 N.Y.S.3d at 15.
4. The Appellate Division's Alternative Harmless Error Conclusion Was Not Unreasonable
“Even assuming ... that the court should have added instructions on the circumstances whereby a statement may or may not be attenuated from a prior statement found involuntary,” the Appellate Division found that “there is no reasonable possibility that the verdict would have been different had those instructions been given, in light of the strong evidence that [Hernandez's] confession to [Durastanti] was fully attenuated from all his confessions to police.” Hernandez, 181 A.D. at 533, 122 N.Y.S.3d at 15 (internal citations omitted). Put another way, the Appellate Division held that any error the trial court made in failing to instruct the jury on the law of attenuation was harmless.
Although not expressly using the term “harmless error,” the Appellate Division cited to two cases stating that errors in a trial court's jury charge were harmless. See People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684 (2006); People v. Jones, 3 N.Y.3d 491, 788 N.Y.S.2d 651 (2004).
State court harmless error determinations “qualif[y] as an adjudication on the merits under AEDPA.” Brown v. Davenport, U.S.,, 142 S.Ct. 1510, 1520 (2022). “[A] state-court merits determination of harmless error” is reviewed “under a two-part standard.” Krivoi v. Chappius, No. 21-2934-PR, 2022 WL 17481816, at *3 (2d Cir. Dec. 7, 2022). Pursuant to the analysis recently pronounced by the Supreme Court, a petitioner both “must prevail under the Brecht ‘substantial and injurious' standard, and he must show that the state court's harmless error determination was an unreasonable application of federal law as determined by the Supreme Court[].” Id. (emphasis in original) (discussing Brown, U.S.,, 142 S.Ct. 1510, 1520 (2022), and invoking Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993)). “[W]here AEDPA asks whether every fairminded jurist would agree that an error was prejudicial, Brecht asks only whether a federal habeas court itself harbors grave doubt about the petitioner's verdict.” Brown, U.S. at, 142 S.Ct. at 1525 (emphasis in original). Thus, to overcome AEDPA deference, Hernandez must show that “no fairminded jurist applying Supreme Court precedent could reach the state court's conclusion” that omitting an attenuation instruction in response to the jury's request was harmless. Diaz v. Miller, No. 22-CV-1835, 2023 WL 4363245, at *2 (2d Cir. July 6, 2023) (internal quotation marks omitted). Hernandez does not satisfy these standards.
a. “Grave Doubt” Under Brecht
A “‘reasonable possibility' that the error was harmful” does not satisfy Brecht. Davis v. Ayala, 576 U.S. 257, 268, 135 S.Ct. 2187, 2198 (2015) (quoting Brecht, 507 U.S. at 637, 113 S.Ct. at 1721). Rather, a court must hold “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict,” in which case, “that error is not harmless. And, the petitioner must win.” O'Neal v. McAnich, 513 U.S. 432, 436, 115 S.Ct. 992, 994 (1995) (internal quotation marks omitted); see also Davis v. Ayala, 576 U.S. at 267, 135 S.Ct. at 2197 (stating that an error is harmless unless it results in “actual prejudice,” meaning that the court has “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict”) (internal quotation marks omitted).
“In assessing ‘whether the erroneous admission of evidence had a substantial and injurious effect on the jury's decision, we consider the importance of the ... wrongly admitted evidence, and the overall strength of the prosecution's case.'” Wood v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011) (citing Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)) (internal brackets omitted). Indeed, “[t]he strength of the prosecution's case is probably the single most critical factor in determining whether error was harmless.” Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994). Here, given the total absence of physical evidence, the prosecution's case hinged entirely on Hernandez's confessions.
The Government did put on witnesses who testified that Hernandez had confessed to them in the 1979 and 1982 that he had killed a boy in New York. (Exs. 22H at 3901:11- 3905:18, 3980:1-23, 4057:23-4059:23; 22I at 4328:9-4330:20.) However, although Hernandez confessed several times to Rosemary, Becky, and various doctors in the years that followed, Hernandez's confessions to law enforcement on May 23 to May 25, 2012 were his first admissions directly linking him to Patz's disappearance. The 2012 confessions clearly bore “on an issue that is plainly critical to the jury's decision” and was “crucial.” See Wray, 202 F.3d at 526 (finding wrongly admitted identification evidence “crucial” given its centrality to prosecution's argument and lack of physical evidence).
The jury's multiple notes demonstrate that it was actively grappling with how to deal with the confessions (see Ex. 22U at 10209:20-10210:1 (first jury note requesting read back of judge's instructions on confessions as well as testimony about Hernandez's confessions); 10210:4-9 (second jury note requesting “[c]larity on may not convict defendant on his own words solely?”), as does the jury's emphasis on “if” in the particular note at issue. Additionally, the jury ultimately returned a mixed verdict - acquitting Hernandez of intentional murder but convicting him of felony murder and kidnapping. (Ex. 22U at 10253:22-10258:3.) This “deliberative conduct by the jury ... suggests that a conviction was not assured, at least without a confession.” Zappulla v. New York, 391 F.3d 462, 471 (2d Cir. 2004). Confession “is like no other evidence” especially when “[a]bsent the confessions, it is unlikely that [the petitioner] would have been prosecuted at all” because of insufficient physical and circumstantial evidence. Arizona v. Fulminante, 499 U.S. 279, 297, 111 S.Ct. 1246, 1258 (1991).
Under these circumstances, there is certainly a possibility that the Trial Judge's failure to provide proper guidance to the jury about the relationship between pre- and post-Miranda confessions was substantial and injurious. Hernandez's confessions were of utmost importance. As discussed in Section I above, a reasonable juror could have found Hernandez's pre-Miranda confession to be involuntary. The jury's note indicated that they were grappling with that very issue. Had the jury come to the conclusion that Hernandez's pre-Miranda confession was the product of custodial interrogation and, thus, not voluntary, they would then have to have considered whether Hernandez's other confessions, including that made to Durastanti, were voluntary. Without proper guidance under Seibert, the jury could have been led astray. As noted above, however, a reasonable possibility of prejudice does not suffice under Brecht.
Moreover, as explained in Section I, a reasonable jury could have determined that Hernandez's pre-Miranda confession was voluntary. In that event, the jury's “if” question would be moot. But this Court can only speculate as to what the jury ultimately concluded about Hernandez's pre-Miranda confession. Additionally, having determined that the state courts did not unreasonably find the confession to Durastanti sufficiently attenuated, the Court must acknowledge that a reasonable jury could have reached the same conclusion even with proper instruction. At most, this Court can say that it has reasonable doubt, not grave doubt, about the extent to which the trial court's response to the jury note prejudiced the verdict.
The Court also cannot overlook the fact that, even if all of Hernandez's confessions to law enforcement were excluded, the jury was presented with evidence of Hernandez's multiple admissions and confessions to assorted other persons - including, but not limited to, his wife and daughter at the CCPO, the nurse at Bellevue, and Drs. Robotti, First, and Welner. The parties have not addressed the extent to which Seibert would have any application to those confessions as they were not made directly to law enforcement personnel, although law enforcement personnel were present for at least some of those statements. The Court therefore need not and does not address the issue.
b. Lack Of Prejudice Under AEDPA
The Court also cannot conclude that, as AEDPA requires, “every fairminded jurist would agree that [the] error was prejudicial.” Brown, U.S. at, 142 S.Ct. at 1525. Even if the Trial Judge's answer to the jury question “had a substantial and injurious effect or influence upon the verdict, the Appellate Division's finding otherwise does not constitute an unreasonable determination of law or fact” under AEDPA. Diaz v. Bell, No. 18-CV-10121, 2022 WL 3371214, at *6 (S.D.N.Y. Aug. 16, 2022), aff'd, Diaz v. Miller, 2021 WL 4363245. Put differently, the Court does not conclude that no fair-minded jurist could find, as the Appellate Division did, that “there is no reasonable possibility that the verdict would have been different had those instructions been given.” Hernandez, 181 A.D. at 533, 122 N.Y.S.3d at 15.
According to the Brown majority, the AEDPA standard and Brecht standard are distinct. U.S. at, 142 S.Ct. at 1526, n.3 (“Brecht and AEDPA ask analytically distinct questions - and AEDPA's test alone is statutorily mandated”). Reasoning sufficient to permit relief under Brecht is not necessarily “enough to warrant relief under AEDPA” under which Congress intentionally made “winning habeas relief more difficult.” Id. at, 142 S.Ct. at 1526. As explained by the majority, “satisfying Brecht is only a necessary, not a sufficient, condition to relief,” and “[p]roof of prejudice under Brecht does not equate to a successful showing under AEDPA.” Id. at,, 142 S.Ct. at 1520, 1525.
For Hernandez to prevail under AEDPA, the Court must conclude that “every fairminded jurist” would find differently than the Appellate Division when applying the same legal principle. Brown, U.S. at, 142 S.Ct. at 1530. “The legal principle at issue is the Chapman standard [which] requires that ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'” Gumbs v. Stanford, No. 22-CV-4659, 2023 WL 2908653, at *9 (S.D.N.Y. April 12, 2023) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967)). Although the Appellate Division did not cite Chapman directly, it did properly apply the New York Court of Appeals' articulation of the Chapman holding, citing to People v. Petty, 7 N.Y.3d 277, 819 N.Y.S.2d 684 (2006) and People v. Jones, 3 N.Y.3d 491, 788 N.Y.S.2d 651 (2004). Both of those state cases cite People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213 (1975), a New York state case adopting the harmless constitutional error standard from Chapman. See Gutierrez v. McGinnis, 389 F.3d 300, 308 (2d Cir. 2004) (“for AEDPA deference to attach ... our Circuit does not require state courts to cite federal precedent when disposing of that claim. ... Therefore, the question is whether the Appellate Division reasonably applied Chapman or New York's equivalent interpretation”); Lopez v. Lape, No. 10-CV-397, 2010 WL 3219308, at *7, n.95 (S.D.N.Y. 2010) (stating that the Chapman standard applies “even though the First Department did not cite directly to Chapman in its decision”); Gumbs, 2023 WL 2908653, at *9 (state court's citation to Crimmins was sufficient to invoke the Chapman standard). In so doing, the Appellate Division found that there was “no reasonable possibility that the verdict would have been different had [attenuation] instructions been given.” Hernandez, 181 A.D. at 533, 122 N.Y.S.3d at 15.
The Appellate Division cited the “strong evidence that [Hernandez's] confession to [Durastanti] was fully attenuated from all of his confessions to police, as well as being corroborated by [Hernandez's] various confessions to civilians” as evidence that the jury instruction omission was harmless. Hernandez, 181 A.D. at 533, 122 N.Y.S.3d at 15. In reviewing the Appellate Division's rationale, the question is not whether this court would reach the same conclusion, or even if reasonable minds could disagree, but rather whether “every fairminded jurist would agree that [the] error was prejudicial.” Brown, ____U.S. at____, 142 S.Ct. at 1525 (emphasis added). The answer to that question is no.
First, as discussed above, reasonable jurists could disagree as to whether Hernandez was subject to an improper pre-Miranda interrogation, which is a prerequisite for a violation under Seibert. Second, as described above, even assuming that Hernandez's initial confession was improper, reasonable jurists could then disagree on whether sufficient curative measures distanced the first improper confession from the confessions to Durastanti and various doctors. Even though upon de novo review, this Court may not have found the Trial Judge's erroneous jury instruction to be harmless, the Court recognizes that a reasonable jurist may have concluded otherwise. Hernandez thus cannot succeed on his claim that the trial court's response to the jury's question was contrary to law or an unreasonable application of law to the facts.
III. Hernandez's Evidentiary Claims
Hernandez next argues that two evidentiary rulings made by the state courts deprived him of the opportunity to present a complete defense. Hernandez first contends that the state courts prevented him from presenting evidence of Miller's third party-guilt under a New York evidentiary rule that is contrary to Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727 (2006). Hernandez then asserts that the state courts unreasonably applied Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973) in rejecting his request to introduce into evidence certain NYPD reports. The Government counters that neither evidentiary ruling was improper and that Hernandez has not satisfied his AEDPA burden. The Court agrees.
A. Evidentiary Rulings In The Habeas Context
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Nevada v. Jackson, 569 U.S. 505, 509, 133 S.Ct. 1990, 1992 (2013) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146 (1986)). Nevertheless, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from trials.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264 (1998); Wade v. Mantello, 333 F.3d 51, 58 (2d Cir. 2003) (“[a] defendant's right to present relevant evidence is not, however, unlimited; rather it is subject to reasonable restrictions”) (internal quotation marks omitted). “Central among these restrictions are state and federal rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. The power of courts to exclude evidence through the application of evidentiary rules that serve the interests of fairness and reliability is well-settled.” Wade, 333 F.3d at 58 (internal quotation marks and citations omitted). Restrictions on a defendant's evidence are constitutional and “do not abridge an accused's right to present a defense so long as they are not ‘arbitrary' or ‘disproportionate to the purposes they are designed to serve.'” Scheffer, 523 U.S. at 308, 118 S.Ct. at 1264 (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 2711 (1987)).
“‘[H]abeas corpus relief does not lie for errors of state law,' and that necessarily includes erroneous evidentiary rulings.” Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990)) (internal citations omitted). “However, when a trial court's evidentiary exclusions take on constitutional dimensions ... ‘we must examine the stated reasons for the exclusion and inquire into possible state evidentiary law errors' that may have deprived the petitioner of a fair trial.” Scrimo v. Lee, 935 F.3d 103, 114-15 (2d Cir. 2019) (quoting Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001)).
B. The State Courts' Exclusion Of Third-Party Culpability Evidence For Miller Was Not Contrary To Supreme Court Precedent
According to Hernandez, the New York rule under which the state courts denied his request to introduce third-party guilt evidence improperly requires defendants to satisfy a heightened evidentiary standard like the South Carolina evidentiary rule held unconstitutional in Holmes. (Pet. Mem. at 58-59.) The Government asserts that neither the New York rule, nor the state courts' application, contradict Holmes. (Resp. Mem. at 128-34.)
Prior to the second trial, Hernandez moved to admit evidence regarding the FBI's 2012 investigation into Miller, including statements Miller made to authorities and information about the scent dog's findings in Miller's basement. (Ex. 32 at 8-10.) The Government countered that Miller had given an alibi during the 1979 investigation for the day of Patz's disappearance and, thus, Hernandez could not demonstrate the sufficient connection of time, place, and circumstances required by New York state law. (Ex. 39 at 9:20-10:19, 13:9-19 (citing Primo, 96 N.Y.2d 353, 728 N.Y.S.2d 735).) In reply, Hernandez questioned the validity of Miller's alibi and argued that there was clearly enough evidence connecting Miller to the crime because the Manhattan DA had been able to procure and execute a search warrant to excavate Miller's basement in 2012. (Ex. 39 at 11:11-14.)
Hernandez also moved to admit evidence related to Ramos and “other people in the SoHo neighborhood who were suspected of pedophilia and other acts, who may have had access to Etan Patz in 1979.” (Ex. 32 at 2.) The Trial Judge permitted Hernandez to introduce some evidence, including a full video-recording of Ramos' statements to a Bronx ADA, a statement to law enforcement made by Barrett Harrington that Ramos had sexually abused him in 1979, and “any evidence that Ramos was in the company of [Patz] at any time” only “if the defense can produce any witness with direct evidence of that.” (Ex. 42 at 2-3.) The Trial Judge denied Hernandez's request to introduce evidence of a wrongful death action brought against Ramos by the Patz family, as well as other evidence of Ramos's criminality in other states. (Ex. 42 at 3.) The Trial Judge additionally denied Hernandez's request to offer evidence regarding NYPD investigations into other known pedophiles in the SoHo area. (Ex. 42 at 3.) Hernandez has not challenged in this proceeding the state court rulings made with respect to the scope of evidence about Ramos.
At the hearing addressing the evidence, the Trial Judge registered concern “that third-party evidence ... at least has to have some possibility, or credible reliability.” (Ex. 39 at 11:6-9.) In his order, the Trial Judge held that Hernandez was neither “permitted to introduce evidence about statements Miller made to the FBI in 2012 [] [n]or . permitted to elicit testimony about the actions of a ‘scent dog' in 2012” at Miller's basement, although the parties could seek to elicit testimony from Miller if they wished. (Ex. 42 at 3.) Miller did not testify at trial. And while evidence was presented to the jury regarding Miller's relationship with the Patz family and the excavation of his basement, those discussions occurred solely to establish the timeline of events and where Patz had been the night before he disappeared. (See, e.g., Ex. 22G at 3419, 3449, 3576-77, 3644.) The Appellate Division affirmed the trial court's evidentiary rulings, finding that they were “provident exercises of discretion that did not impair [Hernandez's] right to present a defense” and that “evidence offered . relating to [Miller] was so remote as to be irrelevant.” Hernandez, 181 A.D.3d at 532, 122 N.Y.S.3d at 15 (latter quotation citing People v. DiPippo, 27 N.Y.3d 127, 135-36, 31 N.Y.S.3d 421, 425-26 (2016)).
Although “the Supreme Court is traditionally reluctant to impose constitutional constraints on ordinary evidentiary rulings by state trial courts concerning the admissibility of evidence,” the latitude afforded to trial courts is not unlimited. Olivo v. Graham, No. 15-CV-9938, 2021 WL 3272080, at *17 (S.D.N.Y. March 23, 2021), R & R adopted, 2021 WL 3271833 (S.D.N.Y. July 30, 2021) (internal quotation marks and brackets omitted). In Holmes, the Supreme Court found unconstitutional a South Carolina evidentiary rule providing that “where there is strong evidence of [a defendant's] guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence” and “may (or perhaps must) be excluded.” 547 U.S. at 324, 329, 126 S.Ct. at 1731, 1734. Unlike Federal Rule of Evidence 403 (“Rule 403”) - which permits courts to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence” - South Carolina's rule directed trial judges to focus on the strength of the prosecution's case rather than on the probative value or potential adverse effects of admitting evidence of third-party guilt. Id. at 329, 126 S.Ct. at 1734. In other words, “[if] the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.” Id. The Supreme Court concluded that this rule was “arbitrary,” did “not rationally serve the end . to focus the trial on central issues by excluding evidence that has only a very weak logical connection to the central issues,” and, ultimately, violated the defendant's “right to have a meaningful opportunity to present a complete defense.” Id. at 330-31, 126 S.Ct. at 1734-35 (internal quotation marks omitted).
Hernandez insists that the New York evidentiary rule applied here is “materially indistinguishable” from the South Carolina rule found unconstitutional by the Supreme Court. (Pet. Mem. at 58-59.) That is not so. Under New York law, “[w]here a defendant seeks to pursue a defense of third-party culpability at trial, evidence offered in support ... is subject to ‘the general balancing analysis that governs the admissibility of all evidence.'” DiPippo, 27 N.Y.3d at 135, 31 N.Y.S.3d at 893 (quoting Primo, 96 N.Y.2d at 356, 728 N.Y.S.2d at 739). The trial judge is to weigh “the countervailing risks of delay, prejudice and confusion . against the probative value of [the] evidence.” Primo, 96 N.Y.2d at 35657, 728 N.Y.S.2d at 739; see also Alvarez v. Ercole, 763 F.3d 223, 231 (2d Cir. 2014) (explaining and applying the Primo standard); Gueits v. Kirkpatrick, 612 F.3d 118, 126 (2d Cir. 2010) (same); Olivo, 2021 WL 3272080 at *17 (same); Marte v. Rivera, No. 05-CV-2683, 2008 WL 1827425, at *9 (S.D.N.Y. April 24, 2008) (same). Indeed, Hernandez admits as much in a 2015 letter to the Trial Judge prior to the evidentiary hearing, in which he states that “Primo did not create any new rules of evidence with respect to third-party culpability” and that it holds “that evidence of third-party culpability is subject to the same rules of evidence as all other types of evidence - it must be relevant to be admissible.” (Ex. 38 at ECF 2.)
Under New York law, a court must first determine if the evidence is relevant and, if so, if “its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury.” DiPippo, 27 N.Y.3d at 135-36, 31 N.Y.S.3d at 426 (quoting Primo, 96 N.Y.2d at 355, 728 N.Y.S.2d at 738.) “‘[T]he admission of evidence of third-party culpability [also] may not rest on mere suspicion or surmise'” and “'[r]emote acts, disconnected and outside of the crime itself, cannot be separately proved to show that someone other than the defendant committed the crime.'” DiPippo, 27 N.Y.3d at 136, 31 N.Y.S.3d at 426 (former quoting Primo, 96 N.Y.3d at 357, 728 N.Y.S.2d at 739 and citing Holmes, 547 U.S. at 327, 126 S.Ct. at 1733). This is because “the countervailing risks of delay, prejudice and confusion” are particularly acute in this context. Primo, 96 N.Y.2d at 356, 728 N.Y.S.2d at 739.
Hernandez is correct that, unlike Rule 403, which permits evidence to be excluded if the dangers of unfair prejudice, confusion, or undue delay outweigh the evidence's probative value, the New York rule requires defendants instead to establish that the evidence's probative value outweighs the countervailing factors of potential undue prejudice, delay, confusion, and remoteness. But that distinction does not, as Hernandez contends, mean that “New York's rule requires the defendant to overcome the strength of the state's case to be admitted rather than being evaluated for its own probative value.” (Pet. Mem. at 60.)
Rather, like Rule 403, the New York standard requires balancing the evidence's probative value against risks of delay, undue prejudice, and confusion. See Willock v. Martuscello, No. 17-CV-0454, 2020 WL 2748031, at *10 (E.D.N.Y. May 27, 2020) (“the admission or exclusion of third-party culpability evidence turns on a balancing of the evidence's probative value against countervailing risks of trial delay, undue prejudice to the opposing party, and confusing the issues or misleading the jury”) (internal quotation marks omitted). The New York rule makes no mention of considering the strength of the prosecution's case or other evidence at trial as part of the analysis. And unlike the South Carolina rule, the New York rule focuses the judge's critical inquiry “on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt.” Holmes, 548 U.S. at 329, 126 S.Ct. at 1734.
Furthermore, as the Government notes, the New York Court of Appeals in People v. Powell explicitly concluded that New York's evidentiary standard was “fully consistent” with Holmes, finding that “[u]nlike the rule at issue in Holmes, the standard clarified by this Court in Primo focuses exclusively on the probative value of the third-party culpability evidence as weighed against its potential countervailing adverse effects.” 27 N.Y.3d 523, 530, 35 N.Y.S.3d 675, 679 (2016). And, since that holding, habeas courts have applied New York's rules in exactly that way, evaluating the state court's balance of the probative value of the evidence against the possibility of causing prejudice, delay, or undue confusion. See Olivo, 2021 WL 3272080 at *17 (finding trial judge's application of New York evidentiary rule was proper where testimony related to third-party guilt was “remote and disconnected from the crime itself”); Francis v. Capra, No. 18-CV-0628, 2019 WL 12026839, at *8-9 (S.D.N.Y. Aug. 6, 2019), R & R adopted, 2021 WL 1298481 (S.D.N.Y. Apr. 7, 2021) (finding that, despite using incorrect nomenclature, trial court applied general balancing test to determine admissibility of third-party culpability); Willock, 2020 WL 2748031, at *10 (finding defendant's proffered third-party culpability evidence properly excluded under New York law where the testimony was insufficiently related to the crime and “could have confused the issues, misled the jury, and resulted in trial delays”).
Another district court in this Circuit evaluated the potential arbitrariness of New York's evidentiary rule and determined that it was exactly “the type of evidentiary rule where the Constitution affords trial judges broad discretion to determine admissibility, and not the kind of blanket exclusion rule that traditionally risks running afoul of the Constitution.” DeVaughn v. Graham, No. 14-CV-2322, 2017 WL 244837, at *14 (E.D.N.Y. Jan. 19, 2017) (holding that ability of trial court to exclude third-party culpability evidence under New York rule was not arbitrary and disproportionate). This Court has no basis to conclude otherwise or that no fair-minded jurist could find New York's evidentiary rule constitutional and consistent with Holmes.
The state court's application of New York's rule was not unreasonable and did not run afoul of Holmes. Hernandez offered proof that: Miller's workshop was close to where Patz was last seen; Patz would have passed Miller's workshop on his way to the bus stop; Patz spent time with Miller in his basement the night before his disappearance; and Miller stated to an FBI Special Agent that he changed out of his work clothes in front of Patz. (Ex. 32 at 8-9.) Hernandez also offered proof that, in a 2012 interview with the FBI, Miller had admitted to having sexual intercourse with a ten-year old girl in 1979. (Ex. 32 at 9.) Finally, Hernandez offered proof that, in 2012, a scent dog alerted FBI agents to the scent of human decomposition in Miller's basement and that Miller's response to the dog's detection was to ask “What if the body was moved?,” although Hernandez also acknowledged that “Miller has denied any involvement in the disappearance of [ ] Patz.” (Ex. 32 at 9-10.)
After briefing and oral argument, the trial court, excluded evidence about statements Miller made to the FBI in 2012. (Ex. 42 at 3.) The court considered whether the proffered evidence concerning Miller was sufficiently connected to the alleged crime and concluded that it was not. The Appellate Division affirmed, stating that the evidence concerning Miller was too remote, Hernandez, 181 A.D.3d at 532, 122 N.Y.S.3d at 15, a ground for exclusion appropriate under both New York state law and Holmes. See Holmes, 547 U.S. at 327, 126 S.Ct. at 1733 (stating that evidence may be excluded “where it does not sufficiently connect the other person to the crime” and “where the evidence is speculative or remote”); United States v. Hendricks, 921 F.3d 320, 331 (2d Cir. 2019) (excluding evidence that may have suggested that the third party “knew about the robbery[,] [but] none of the evidence places [the third party] anywhere near the [crime] scene”); United States v. White, 692 F.3d 235, 246 (2d Cir. 2012) (holding that evidence of third-party culpability must “sufficiently connect the other person to the crime”); Bradley v. Burge, No. 06-CV-0040, 2007 WL 1225550, at *6 (S.D.N.Y. April 19, 2007) (finding third-party guilt evidence too speculative where “[u]nlike in Holmes, there was no other person who confessed to the offenses in this case”); Smith v. New York, No. 20-CV-9708, 2023 WL 359568, at *20 (S.D.N.Y. Jan. 20, 2023) (affirming state court's exclusion of third-party culpability evidence that was merely speculative); cf. Scrimo, 935 F.3d at 11619 (finding that, although “evidence of third-party guilt is routinely excluded,” relevant evidence of third-party guilt was neither remote nor speculative because third-party was “on the scene and connected to the crime”).
As the Trial Judge noted, exclusion was permissible “if there is some credible alibi for [Miller].” (Ex. 39 at 11:9-10.) In its pre-hearing briefing, the Government put forth support for exactly that. The Government argued that Hernandez had overlooked “an NYPD investigation corroborat[ing] Miller's statement to police that he was not in So[H]o on the morning of May 25, 1979, but was working [elsewhere]” and failed to proffer any evidence contradicting that alibi. (Ex. 36 at 3.) At the hearing, the Government expanded, stating that Miller gave his alibi to police in early June of 1979, telling them that, on the morning of Patz's disappearance, he was at 126 East 13th Street and did not arrive on Prince Street until 10:45 a.m. (Ex. 39 at 10:2-7.) Additionally, the Government stated that police interviewed several unnamed people at 126 East 13th Street who corroborated Miller's alibi, and that those unnamed people and Miller were given lie detector tests which showed a lack of consciousness of guilt. (Ex. 39 at 10:8-13.) The Government further commented that, from Hernandez's papers, it “d[id] not know how [Hernandez] intend[ed] on” placing Miller on the street at the time of Patz's disappearance and that, regardless, Miller is “going to assert the Fifth.” (Ex. 39 at 10:20-11:3.)
At the hearing, Hernandez's counsel disputed the veracity of Miller's alibi, asserting that Miller told police he was home with his wife while his wife told the FBI said she was not home during that period. (Ex. 39 at 11:24-12:2.) Yet, counsel's representations were not substantiated by anything in Hernandez's pre-hearing briefing and did not include any citations to the record. Given the lack of evidence connecting Miller to the day and circumstances of the crime, despite his interactions with Patz the night before or otherwise, the state courts were not unreasonable in finding the evidence concerning Miller too remote for admission. See Hernandez, 181 A.D.3d at 532, 122 N.Y.S.3d at 15; see also Wade v. Mantello, 333 F.3d at 62 (“In light of the latitude afforded such rulings by the Constitution, the Appellate Division's conclusion that the exclusion did not offend [petitioner's] constitutional right to present a complete defense is not an unreasonable application of clearly established federal law”).
Hernandez nonetheless argues that the state courts' findings of remoteness are unreasonable given that the Government had enough evidence on Miller's potential involvement to support a state-issued search warrant in 2012. The Government counters that: (1) the fruitlessness of the search of Miller's basement undermines any basis to conclude Miller was involved in Patz's disappearance; (2) the evidentiary standard for a search warrant is distinct from that of a judge's ruling for trial; and (3) Hernandez's confessions were either unknown or had not yet taken place when the warrant was issued. (Resp. Mem. at 134.)
The Government's first and second counterpoints have merit. As to the first, the search of Miller's basement pointed away from Miller's involvement rather than further supporting the probable cause that supported the search warrant to begin with. As to the second, a determination of probable cause for a warrant is not the same as an evidentiary determination that takes into account the dangers of admission compared to probative value. Nor are the two determinations necessarily based on the same evidence; here, they were not - by trial the probative value of evidence about Miller had been diminished by both the results of the search and Miller's alibi. Compare People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 740 (1977) (detailing that relevant evidence can be rejected at trial “if its probative value is outweighed by the danger that its admission would” result in delay, confusion, mislead the jury, unfair surprise, or undue prejudice) (internal quotation marks omitted), with People v. Cooper, 120 A.D.3d 710, 711, 990 N.Y.S.2d 862, 863 (2d Dep't 2014) (stating that search warrant applications “must provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search”).
The Government's third counterpoint is unavailing because it uses Hernandez's confessions to discount the strength of its 2012 search warrant evidence and thereby factors in the strength of the prosecution's case, which, as explained above, is improper under Holmes.
Moreover, under habeas review, state courts' evidentiary decisions are presumed correct unless the petitioner can satisfy the heavy burden of demonstrating that an evidentiary error “remove[d] a reasonable doubt that would have existed on the record without it [and was] crucial, critical, highly significant.” Collings v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (internal quotation marks omitted). Hernandez has not done so here. The absence of evidence placing Miller at the scene, combined with evidence supporting his alibi, would have diminished much of the persuasiveness Hernandez ascribes to Miller's potential culpability. The jury was presented with extensive evidence of Hernandez's mental state, the reliability of his confessions, the police's investigation, and, critically, the third-party culpability of Ramos, yet still reached a guilty verdict.
Hernandez's introduction of evidence of Ramos's potential guilt in particular undermines his argument that exclusion of the Miller evidence removed a reasonable doubt that would have otherwise existed. That is because the probative value of evidence of third-party guilt “is also informed by the availability of alternative means to present similar evidence.” United States v. Johnson, 529 F.3d 493, 500 (2d Cir. 2008); cf. Alvarez, 763 F.3d at 232 (finding trial court's exclusion of third-party evidence improper because it left petitioner “without any support for his theory of the case”). As noted by the Appellate Division, Hernandez “had an ample opportunity to introduce evidence about [Ramos].” Hernandez, 181 A.D.2d at 532, 122 N.Y.S.3d at 15. At trial, Hernandez “remained able to present equally useful evidence supporting his theory” of third-party culpability, United States v. Wade, 512 Fed.Appx. 11, 14 (2d Cir. 2013), arguing that Ramos was the true perpetrator and presenting extensive evidence to the jury about Ramos and the Government's focus on him as a potential suspect. (Ex. 22U at 9833:20-9834:3, 9838:6-9855:6, 9883:23-24.)
Among other information about Ramos, Hernandez introduced evidence of Ramos's history of sexually abusing and abducting young boys, including Susan Harrington's son during 1979, and of Ramos's statements to FBI Agent Galligan in which Ramos recounted molesting a boy named Jimmy on the day Patz went missing who had all the physical descriptors of Patz and whom Ramos said “could have been Etan [Patz].” (Ex. 32 at 37; see also Ex. 22Q at 8286:3-25.) Hernandez was also allowed to introduce evidence that Ramos was in the company of Patz at any time, so long as he could produce a witness with direct evidence, but he apparently did not do so. (Ex. 42 at 2-3.) In briefing and at oral argument, Hernandez emphasized that, after closure of the defense's case, the trial court retroactively struck large portions of Galligan's testimony about Ramos as inadmissible hearsay. (Pet. Mem. at 31; see also Ex. 51.) Indeed, all of the excluded testimony consisted of Galligan's testifying about out-of-court statements made to her by AUSA Grabois, as well as two informants who had been incarcerated with Ramos and to whom Ramos allegedly confessed. (See Ex. 51, listing struck testimony at Ex. 22Q at 8255:10-8257:25, 8258:3-7, 8263:2-8264:19, 8266:11-21, 8270:24-8276:6, 8277:6-24, 8305:19-8306:15; 8350:20-8352:11, 8423:22-8424:25, 8426:9-8427:7, 8483:25-8490:1, 8491:3-25, 8493:18-3, 8495:16-8496:12, 8521:9-23, 8524:8-8525:3, 8525:12-8526:23, 8530:5-25, 8532:1-8533:20, 8538:1-4.) Both at oral argument and in its papers before the trial court, the Government argued that this testimony was permitted subject to connection and was properly struck as hearsay once it became clear that none of the declarants were going to testify. (See Ex. 50.) Hernandez does not challenge the propriety of the trial court's decision to strike that testimony. Instead, he argues that the harm from excluding third-party culpability evidence for Miller was compounded by the striking of evidence related to Ramos. Against this backdrop, Hernandez says that admission of the Miller evidence was even more crucial. The struck testimony related to Ramos presumably would have strengthened Hernandez's case that Ramos was the perpetrator. But that does not make the excluded evidence about Miller more significant. To the contrary, the evidence placed Ramos with Patz at the time of his disappearance and included Ramos's implicit admission to abducting Patz, including an hour-and-a-half video of an interview between ADA Frank Carroll and Ramos in which Ramos discussed his predatory behavior and was asked about Patz. (See Exs. 22G at 3472; see generally ADA Carroll testimony at Ex. 22Os at 7676-7748.) The evidence about Miller, however, neither placed him at the scene of the crime nor included any admission about abducting a boy.
The Court need not speculate on the potential impact of evidence of a second potential perpetrator, though common sense suggests that presenting both Ramos and Miller as alternative suspects could have actually diluted Hernandez's defense. Regardless, the state courts concluded that the third-party culpability evidence for Miller was too remote and thus “insufficiently probative to outweigh [the] countervailing risks” that are particularly acute for third-party culpability evidence. Primo, 96 N.Y.2d at 355, 753 N.E.2d at 168. The New York rule applied did not mandate an unconstitutional, heightened evidentiary standard; nor was the ultimate decision to exclude unreasonable.
C. The State Courts' Exclusion Of Hearsay Evidence Was Not An Unreasonable Application Of Supreme Court Law
Prior to trial, Hernandez moved in limine to admit hearsay statements made by deceased witnesses that were memorialized in contemporaneous police reports. Those reports include: (1) a 1979 police report memorializing a statement from Robert Buxbaum (“Buxbaum”) that he did not see Patz at the school bus stop at 8:00 a.m. on May 25, 1979 (“Buxbaum Statement”), and (2) two DD5 reports by Detective William Butler (“Butler”) summarizing the searches performed by police on the day of and day after Patz's disappearance (“Butler DD5s”). (See Ex. 40 at ECF 13, 22-23.) After briefing by the parties, the trial court denied Hernandez's motion without explanation. (Ex. 41 at 43:1744:5.) The Appellate Division affirmed, finding that the trial court “properly concluded that ... the [hearsay] evidence offered by defendant was not admissible [for legitimate non- hearsay purposes], or any other basis.” Hernandez, 181 A.D.3d at 532, 122 N.Y.S.3d at 15.
The Buxbaum Statement is attached to Exhibit 40 as Exhibit A at ECF 13, and the Butler DD5s are attached as Exhibit E at ECF 22-23.
Hernandez argues that the state courts' exclusion of the Buxbaum Statement and the Butler DD5s was an unreasonable application of Chambers v. Mississippi and denied him a fair trial. (Pet. Mem. at 61-63.) The Government counters that exclusion was proper because Hernandez neither identified an appropriate hearsay exception nor provided persuasive assurances of the statements' truth. (Resp. Mem. at 135.) Additionally, the Government argues, neither statement was critical to Hernandez's defense, and Hernandez's comparison to Chambers is inapposite. (Resp. Mem. at 135-39.) The Court agrees with the Government.
1. Chambers v. Mississippi
In Chambers, the Supreme Court held that certain hearsay statements, although inadmissible under state evidentiary law, should have been admitted because they “bore persuasive assurances of trustworthiness” and were “critical to [the defendant's] defense.” 410 U.S. at 302, 93 S.Ct. at 1049; see Evans v. Fischer, 712 F.3d 125, 134 (2d Cir. 2013) (“in some cases the exclusion of hearsay proffered by a defendant in a correct application of state rules of evidence can violate the guarantee of due process by denying a defendant his right to present witnesses in his own defense”) (emphasis in original).
Chambers concerned the admissibility of “a third-party's multiple out-of-court admissions to committing the murder charged to defendant.” Bowman v. Racette, 661 Fed.Appx. 56, 59 (2d Cir. 2016) (citing Chambers, 410 U.S. at 292-94, 93 S.Ct. at 1044-45). The state refused to call the third-party who had confessed to the crime. Although Chambers was able to call that third-party, a Mississippi evidentiary rule against impeaching a party's own witness prevented him from being able to cross-examine that third-party as an adverse witness, and his motion to circumvent that rule and do so was denied. Chambers, 410 U.S. at 291-92, 295-96, 93 S.Ct. at 1043-44, 1045-46. Chambers therefore sought to introduce other evidence of the third-party's confessions through three witnesses to whom the third-party confessed, but he was prevented from doing so by a Mississippi evidentiary rule against hearsay. Id. at 292-96, 298, 93 S.Ct. at 1044-46, 1047. The Supreme Court found that the “the conjunction of two state evidentiary rules - one prohibiting the impeachment by a party of its ‘own' witness, and one prohibiting the admission of any hearsay admissions against penal interest -prevented a criminal defendant from introducing strong evidence that another individual had confessed to the crime” and, thus, denied Chambers a fair trial. Grochulski v. Henderson, 637 F.2d 50, 55 (2d Cir. 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1383 (discussing Chambers, 410 U.S. 284, 93 S.Ct. 1038).
In concluding that the hearsay confessions should have been permitted even though the Mississippi hearsay rule required their exclusion, the Court emphasized that any reliability concerns were readily satisfied. The Court cited several factors providing assurances of reliability, including that the confessions were: (1) “made spontaneously to a close acquaintance shortly after the murder occurred”; (2) corroborated by other evidence in the record, including an independent sworn confession by the third-party to the authorities and testimony that the third-party had been seen with a gun immediately after the shooting; and (3) self-incriminatory and against penal interest. Chambers, 410 U.S. at 300-01, 93 S.Ct. at 1048-49. The Court additionally stressed that the “sheer number of independent confessions provided additional corroboration for each”; the declarant was under oath and available in court “if there was any question about the truthfulness of the extrajudicial statements”; and the confessions were critical to the defendant's case. Id. “In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 300-02, 93 S.Ct. at 1048-49.
Eschewing establishment of a broad principle, the Supreme Court confined its opinion to the facts. See id. at 303, 93 S.Ct. at 1049 (“we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial”). The Court underscored that, “[i]n reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.” Id. at 301-02, 93 S.Ct. at 1049.
2. Application
In Chambers, the Supreme Court found that operation of Mississippi's evidentiary rules together foreclosed defendant's introduction of critical evidence of third-party confessions. Noting the narrow confines of Chambers, the Second Circuit has stated that “[t]o rely on Chambers for more than this is to ignore the Supreme Court's interpretation of AEDPA's ‘as determined by the Supreme Court' language to include only the holdings of ... its cases.” Evans, 712 F.3d at 135 (quoting Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523). Thus, Chambers' holding “must be ... limited to the sorts of extreme facts presented by that case.” Soto v. Lefevre, 651 F.Supp. 588, 597 (S.D.N.Y. 1986); see also Grochulski, 637 F.2d 50, 55, 56 (2d Cir. 1980) (stating that Chambers is “an opinion confined to its facts” and required the “setting aside of a state evidentiary rule . under limited circumstances”). Those extreme facts are not present here, and Hernandez's reliance on Chambers is therefore misplaced. Regardless, neither the Buxbaum Statement nor the Butler DD5s are comparably reliable or critical as the hearsay evidence was in Chambers.
The Government argues that, as an initial matter, Hernandez fails to identify an applicable hearsay exception. (Resp. Mem. at 135, 138.) Hernandez responds that Chambers does not require identification of a hearsay exception and that the Supreme Court's conclusion in Chambers was based on an inquiry into whether the evidence was sufficiently trustworthy and critical to the defense, not whether a particular hearsay exception applied. (Pet. Reply at 23-24, citing Chambers 410 U.S. at 302, 93 S.Ct. at 1049.) Even if Hernandez is correct, he still fails to satisfy Chambers' requirements for reliability and criticality. See Brooks v. Artuz, No. 97-CV-3300, 2000 WL 1532918, at *6 (S.D.N.Y. Oct. 17, 2000) (finding Chambers factors unsatisfied where petitioner argued “that although the excluded statement was outside any hearsay exception it should have been admitted as a matter of due process”).
First, the assurances of reliability of the statements are not as strong as they were in Chambers. On one hand, both temporality of the statements and the independence of their sources are indicia of reliability. The Butler DD5s were recorded on May 26, 1979, the day after Patz's disappearance; the Buxbaum Statement was taken a few weeks later on June 11, 1979 (Ex. 40 at ECF 13, 22-23); and both statements were made by individuals who had no reason to lie and had either personal knowledge of Patz or the police investigation. But, unlike the statements in Chambers, neither was made spontaneously, and neither was self-incriminatory or against penal interest. See Quartararo v. Hanslmaier, 28 F.Supp.2d 749, 775 (E.D.N.Y. 1998), rev'd on other grounds, 188 F.3d 91 (2d Cir. 1999) (finding “no valid comparison at all” with Chambers where statements at issue were not confessions and “hardly were spontaneous because they were neither unprompted, nor impulsive or instinctive”). Further, neither Buxbaum nor Butler was available to testify at trial. See Nicholson v. Walker, 100 Fed.Appx. 848, 850 (2d Cir. 2004) (“unlike in Chambers, it appears that in this case the reliability of [declarant's] confession could not be tested by cross-examination at a retrial”). “In sum, the indicia of reliability here are not comparable to those in Chambers so as to compel a conclusion that Chambers clearly established a constitutional imperative to admit the hearsay statement[s] at issue in this case.” Bowman v. Racette, 661 Fed.Appx. at 59.
Second, neither statement was critical to Hernandez's defense. Hernandez argues that Buxbaum's statement that he did not see Patz at the school bus stop at 8:00 a.m. on May 25, 1979 was vital because, if Patz never made it to the bus stop, then he would have never reached the bodega and could not have encountered Hernandez. (Pet. Mem. at 62.) Yet, despite exclusion of the Buxbaum Statement, Hernandez argued exactly this point at trial based on other testimony: Hernandez called and elicited testimony from Harry Nudel and Henry Gruen, both of whom were identified in Hernandez's motion in limine memorandum alongside Buxbaum as individuals interviewed by police within days of Patz's disappearance, and who told police that they knew Patz and had not seen him at the bus stop on the morning of May 25, 1979. (Exs. 22N at 7081:24-7084:6, 7107:4-7111:12; 40 at ECF 4.) Karen Jansons - with whom Buxbaum spoke for an additional twenty minutes after the bus's arrival at the bus stop -also testified at trial and stated, on both direct and cross-examination, that she knew Patz and had not seen him at the bus stop that morning. (Ex. 22H at 3823:4-3824:4, 3831:12- 3834:20.) And Chelsea Altman, one of Patz's childhood friends, similarly testified that she did not see Patz at the bus stop that day. (Ex. 22H at 3725:22-3726:7, 3735:63738:1.) Drawing on this testimony, Hernandez argued in summation that nobody saw Patz at the bus stop because he never made it there. (Ex. 22U at 9919:21-9920:6.) Far from being critical, the Buxbaum statement was purely cumulative - the type of evidence that the trial court has broad discretion to exclude. See Rucigay v. Wyckoff Heights Medical Center, 194 A.D.3d 865, 867, 149 N.Y.S.3d 148, 152 (2d Dep't, 2021) (“As a general rule, the issue of whether evidence should be excluded as cumulative rests within the sound discretion of the trial court”) (internal quotation marks omitted).
Hernandez contends that the cumulative nature of the Buxbaum statement is irrelevant because hearsay evidence can be improperly excluded under Chambers “even where the state courts already admitted testimony from other sources on related subjects.” (Pet. Reply at 25.) Even so, the Buxbaum Statement was still not material to his case given the testimony of multiple witnesses establishing the exact same, not merely “related,” fact. Because “[t]he precluded evidence here neither hampered the defendant's ability to present a defense, nor would it have created any reasonable doubt that did not otherwise exist,” the trial court was not unreasonable in deciding to exclude it. Bostic v. Superintendent, Woodbourne Correctional Facility, No. 09-CV-3540, 2012 WL 7783407, at *8 (E.D.N.Y. Sept. 13, 2012), R & R adopted, 2013 WL 1168850 (E.D.N.Y. March 20, 2013); see Taylor v. Curry, 708 F.2d 886, 894 (2d Cir. 1983) (affirming district court's dismissal of habeas petition despite evidentiary errors because “[t]he unsigned draft agreement, while probative, was cumulative in nature and its admission into evidence would not have created ‘a reasonable doubt that did not otherwise exist' concerning petitioner's guilt”). The Butler Statement's exclusion did not materially diminish Hernandez's argument that Patz never arrived at the bus stop and, thus, did not rob him of a complete defense.
Whether the Butler DD5s were critical is a closer call. Those reports document the police's May 25 and May 26, 1979 searches of the area where Patz disappeared. They state that police engaged in “[a]n in-depth canvas and search of buildings, rooftops, basements and elevator shafts[,] backyards and alleys” located “in the vicinity of Broadway to Hudson St. and Canal St. to Bleecker Sts” - encompassing both the bodega and the location where Hernandez allegedly left Patz's body - with the assistance of two bloodhounds, but found nothing. (Ex. 40 at ECF 22-23.) Hernandez asserts that this information is crucial because it undermines the prosecution's argument “that the initial investigation was shoddy” and shows that “police had extended their search up to and past the bodega, but did not find anything.” (Pet. Mem. at 63 (emphasis in original).) The Government counters that the prosecution did not argue that the initial investigation was “shoddy,” but rather presented evidence that the police spent hours searching the area and that Butler was a competent detective. (Resp. Mem. at 136-37.)
The trial testimony supports the Government. At trial, the Government presented evidence of the initial investigation's scope and Butler's dedication as lead detective. For example, the Government underscored Butler's commitment to the case in its opening statement, saying “Butler will spend the next six years looking for Etan Patz. Nights, weekends, holidays. Bill Butler walked the streets looking for any clue about what happened to Etan Patz.” (Ex. 22G at 3430:6-10.) The Government later called Julie Patz, Patz's mother, to the stand, who testified that Butler continued to work on Patz's case for years and was a very dedicated detective. (Ex. 22G at 3590:5-13.) The Government also elicited evidence from Detective Pasquale Eanniello (“Eanniello”), who accompanied Butler and described the initial investigation. (See Ex. 22H at 3849:18-3884:18.) On cross-examination, Eanniello stated that, although he could not remember the bodega being searched, he assumed that Butler would have searched the bodega because “he was not the type of personality to leave anything undone.” (Ex. 22H at 3860:10-17.)
Hernandez points to the Government's summation, in which it argued that the initial search rested on a faulty assumption that Patz disappeared between his house and the bodega and that “[n]obody was scrutinizing the Bodega” because they assumed it was a safe place and “[t]he Bodega guys were helping them.” (Ex. 22U at 9992:16-9993:17.) In his own summation, Hernandez replied, insisting that given Butler's dedication and the seriousness of Patz's disappearance, police must have searched the bodega's basement. (Ex. 22U at 9925.) Hernandez argued that the police looked in the basement and did not find Patz's bookbag - which Hernandez had confessed to throwing behind the refrigerator - “[b]ecause it never happened this way.” (Ex. 22U at 9925:10-12.)
Although the Butler DD5s could have bolstered Hernandez's claim that his confessions were false given that the bodega's basement was searched during the initial 1979 police investigation and no evidence, including Patz's bookbag, was found, they were not critical. It is within the trial court's purview to make evidentiary decisions and “‘Chambers ... does not ... countenance the setting aside of a state evidentiary rule ... simply because it seems fairer to defendant to abrogate the rule.'” Brooks, 2000 WL 1532918, at *6 (quoting Grochulski, 637 F.2d at 56) (internal brackets omitted). Unlike in Chambers, the excluded DD5s were clearly not “the only means by which the defendant could have put before the jury the particular defense theory” that Patz was never in the basement's bodega and that Hernandez's confession was therefore false. Bowman v. Racette, No. 12-CV-4153, 2015 WL 1780159, at *8 (S.D.N.Y. Apr. 20, 2015), aff'd, 661 Fed.Appx. 56 (2d Cir. 2016). While the trial court's evidentiary ruling may have prevented Hernandez from advancing his argument that Patz never made it to the bodega through the presentation of the Butler DD5s, Hernandez was still free and able to advance the argument using other evidence. See Davidson v. Capra, No. 15-CV-9840, 2018 WL 1637967, at *13 (S.D.N.Y. Apr. 4, 2018), R & R adopted 2019 WL 2342980 (S.D.N.Y. May 31, 2019) (finding Chambers did not apply where defendant could have sought to provide non-hearsay evidence).
Given the dissimilarity between the circumstances here and those in Chambers, and especially in light of Chambers' limitation to the facts, the state courts' exclusion of the Buxbaum Statement and the Butler DD5s was not unreasonable and did not deprive Hernandez of a fair trial.
IV. Hernandez's Jury Contamination Claim
Hernandez contends that the state courts misapplied Supreme Court precedent when rejecting his motion to set aside the verdict under CPL § 330.30(2) because of prejudicial contacts between court officers and members of the jury. Hernandez claims that the courts thereby violated his right to have his case heard by an impartial jury and to be confronted with the evidence against him. The Government counters that Hernandez has failed to show that the state courts improperly applied Supreme Court precedent and, regardless, Hernandez has not alleged sufficient grounds for relief. The Government is correct.
A. Relevant Legal Principles
Under the Sixth Amendment, a criminal defendant is entitled to an impartial jury and to be confronted with the evidence against him. See U.S. Const. amend VI; see also Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522 (1966) (“Due process requires that the accused receive a trial by an impartial jury free from outside influences”). The Sixth Amendment requires a jury's verdict to be based on the evidence and testimony developed at trial. See Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549 (1965). Both the right “to a trial by an impartial jury and right to confront his accusers ‘are implicated when a jury considers incriminating evidence that was not admitted at trial.'” Van Stuyvesant v. Conway, No. 03-CV-3856, 2007 WL 2584775, at *33 (S.D.N.Y. Sept. 7, 2007) (quoting Loliscio v. Goord, 263 F.3d 178, 185 (2d Cir. 2001)).
“[D]etermination of whether a petitioner's Sixth Amendment rights have been violated by the jury's consideration of extra-record information requires a determination of whether the extra-record information had a prejudicial effect on the verdict.” Loliscio, 263 F.3d at 185. “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451 (1954.) But, “[a]ny prejudice that is presumed by the consideration of extrajudicial information can be overcome by a showing that the exposure to the information was harmless.” Smith v. Graham, No. 10-CV-3450, 2012 WL 2428913, at *18 (S.D.N.Y. May 7, 2012), R & R adopted, 2012 WL 2435732 (S.D.N.Y. June 27, 2012).
“Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.” Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir.) (per curiam) (internal quotation marks omitted), cert. denied, 513 U.S. 901, 115 S.Ct. 261 (1994). A new trial would be necessary “[i]f the ‘hypothetical average jury' would have been coerced or led astray”. United States v. Ianniello, 866 F.2d 540, 544 (2d Cir. 1989). However, “[a] court need not inquire into juror-misconduct allegations unless the defendant provides ‘reasonable grounds' for an inquiry; the defendant may not request a hearing to conduct a ‘fishing expedition.'” Taus v. Senkowski, 134 Fed.Appx. 468, 470 (2d Cir. 2005) (quoting United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978)); see also Matos v. Ercole, No. 08-CV-8814, 2010 WL 2720001, at *10 (S.D.N.Y. June 28, 2010) (“Because courts should avoid ‘hauling jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences,' an evidentiary hearing should be held ‘only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality'”) (quoting Ianniello, 866 F.2d at 543) (internal brackets omitted).
B. The Relevant Jury Contamination Facts
In his motion to set aside the verdict, Hernandez alleged that court officers had told sitting jurors that jurors from the first trial were sitting in court with the Patz family. (Ex. 52.) The basis for Hernandez's motion was two news clippings from Newsday and DNAInfo and five sworn affidavits from: (1) a custodian of records at Newsday; (2) a research analyst hired by the defense; (3) Joseph F. O'Brien (“O'Brien”), a private investigator hired by the defense to look into juror misconduct; (4) defendant's counsel Alice L. Fontier; and (5) a supplemental affidavit from O'Brien concerning his conversation with a juror. (See Ex. 52.) Hernandez did not submit any sworn affidavits from any jurors.
The newspaper articles reported that, following the verdict, juror Michael Castellon (“Castellon”) had hugged a first-trial juror outside the courtroom. (Ex. 52 at ECF 21-27.) When asked by reporters, Castellon said he recognized the first-trial juror because “court officers had told the jury that members of the earlier panel - who frequently sat with Etan's father - were attending the retrial.” (Ex. 52 at ECF 21.) In her affirmation, the research analyst described her unsuccessful attempts to speak with three court officers about the media reports of contacts between the jury and court officers. (Ex. 52 at ECF 43.) The Newsday custodian's affidavit authenticated the article and stated that “Newsday has not received a request for a correction.” (Ex. 52 at ECF 33.)
The O'Brien affidavits detailed the investigator's unsuccessful attempts to interview jurors “regarding their deliberations and potential communications with court officers.” (Ex. 52 at ECF 45.) O'Brien reports speaking with two sitting jurors - #6 and #2 - and one alternate juror. (Ex. 52 at ECF 42, 46.) The alternate juror told O'Brien that he had learned prior to deliberations that first-trial jurors were in the courtroom but that “he could not remember who informed him ... but it was definitely another juror, not any of the three court officers.” (Ex. 52 at ECF 46.) Juror #6 told O'Brien that “he did not know that there had been a previous trial and that some of the jurors from that trial had attended the most recent one” until he read it in the paper a few days after the verdict. (Ex. 52 at ECF 46.) Juror #2 stated that she had “suspected there was a prior trial based on references made during the trial to a prior proceeding” and learned late in the trial that people sitting with the Patz family were jurors from the first trial. (Ex. 53 at ECF 14.) Although Juror #2 is “not sure from whom she learned” this information, she guesses that “it could have been the court officers” or “from friends or something like that” but that she was “shocked” and “baffled” by the information. (Ex. 53 at ECF 14.) The affidavits, Hernandez argues, provide sufficient support to establish the requirements under CPL § 330.30(2) of “improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to” the verdict. (Ex. 52 at ECF 11-13, quoting CPL § 330.30(2).)
Viewing Hernandez's allegations in the light most favorable to him, the Trial Judge determined that Hernandez had at most alleged that “a juror claimed a court officer advised him that jurors from the prior trial were present in court during the trial; and that at least one other juror was aware during the trial that jurors from the first trial were present in court and at times seated near the [Patz] family, though this juror could not recall the source of this information.” (Ex. 54 at ECF 2-3.) Those allegations were insufficient to set aside the verdict, and the affidavits were insufficient support for the facts alleged. (Ex. 54 at ECF 3-4.) The trial court reasoned that because the jurors were aware of a prior trial, “the most they might have learned from a court officer, or some other source, was that former jurors were present in the audience during the trial, at times sitting with or near the [Patz] family.” (Ex. 54 at ECF 3.) The court further explained that none of the five affidavits contained any “allegations whatsoever that any juror was influenced by the knowledge of prior jurors in the courtroom” or a “sworn allegation ... - on personal knowledge or information and belief - of a court officer advising any juror as to where those prior jurors were sitting, or who they were.” (Ex. 54 at ECF 7.)
Finding that Hernandez's moving papers neither alleged any legal basis nor provided sworn allegations of all facts essential for the motion, the Trial Court denied the motion without a hearing Pursuant to CPL § 330.40(2). (Ex. 54 at ECF 2.) The Appellate Division affirmed, noting that Hernandez “did not provide affidavits from anyone with firsthand knowledge of the material facts” and that “[n]one of [the] information [provided] was sufficient to require a hearing.” Hernandez, 181 A.D.3d at 533, 122 N.Y.S.3d at 15-16.
C. The State Courts' Finding That Hernandez's Jury Contamination Claim Had
No Merit Was Not Unreasonable Or Contrary To Supreme Court Law
Hernandez now argues that both rulings were in error because “[n]either the trial court nor the Appellate Division addressed the clear line of Supreme Court authority addressing improper contacts with jurors,” citing Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50 (1892), Remmer, 347 U.S. 227, 74 S.Ct. 450, and Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468 (1966). (Pl. Mem. at 66.) The relevant facts in each of those cases and the proof offered by those defendants, however, are materially different than those here.
In Mattox, a bailiff told sitting jurors prior to deliberation that the defendant was a repeat-offender. 146 U.S. at 142, 13 S.Ct. at 51. Jurors also read a newspaper article while deliberating that discussed the case, the defendant's prior arrests, and the weight of the evidence. Id. at 142-44, 13 S.Ct. at 51-52. In support of his motion, the Mattox petitioner provided affidavits of two jurors about the bailiff's statements, and the affidavits of eight other jurors attesting to the newspaper article having been read aloud. Id. at 142, 13 S.Ct. at 51. In Parker, the bailiff assigned to shepherd the sequestered jury told a juror, in the presence of another juror, that the defendant was guilty; additionally, “one of the jurors testified that she was prejudiced by the statements.” 385 U.S. at 363-65, 87 S.Ct. 470-71. And in Remmer, an unnamed person attempted to bribe the jury foreperson. An investigation was conducted with the knowledge of the judge and prosecutor. Defendant's counsel only learned of the attempted bribery and investigation after the verdict by reading about it in a newspaper. 347 U.S. at 228, 74 S.Ct. at 450-51. In each of the three cases, the court found that the improper conduct violated the defendants' constitutional rights and granted post-conviction relief.
Accepting the entirety of Hernandez's allegations as true, the state courts did not unreasonably deny Hernandez relief without a hearing because his allegations failed to sufficiently articulate a ground for relief. As a threshold matter, to the extent that Hernandez's allegations relate to procedural errors in the state court's denial of his postverdict motion without a hearing, they do not set forth a constitutional claim cognizable on habeas review. “[A]lleged errors in a postconviction proceeding are not grounds for § 2254 review” and petitioner's “claim of a procedural right to a state post-conviction proceeding does not implicate federal law.” Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011) (per curiam); see also Jones v. Duncan, 162 F.Supp.2d 204, 217-19 (S.D.N.Y. 2001) (noting that “[a]ll the circuits that have considered the issue, except one, have held that federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings,” and, therefore, petitioner's claim that the trial court violated his due process rights by denying his CPL §§ 330.30 and 440.10 motions without holding a hearing is “not cognizable on federal habeas review”) (internal quotation marks omitted); Green v. Haggett, No. 13-CV-0016, 2014 WL 3778587, at *8 (W.D.N.Y. July 31, 2014) (holding that state courts denial of petitioner's CPL § 330.30 motion is not cognizable on federal habeas review because “[t]he United States Constitution does not compel states to provide post-conviction proceedings for relief”).
In any event, Hernandez's claim that the state court's denial of his CPL § 330.30 motion violated his Sixth Amendment rights fails on the merits. The Appellate Division's determination that Hernandez did not provide sufficient information for his juror contamination claim was not an unreasonable application of law or determination of fact.
First, the trial court correctly noted that the jury was already aware of the existence of a first trial so any further confirmation of that fact was harmless. (See Exs. 22G at 3632:4-5 (Julie Patz referring to testimony provided “during the last trial”); 22H at 4030:824 (Trial Judge instructing jury that they “may have heard a witness refer to a first trial” but “that first trial was not concluded, and, therefore, it has no bearing on the evidence in this case.”) See Curet v. Graham, No. 14-CV-4831, 2019 WL 13184139, at *35 (S.D.N.Y. Jan. 14, 2019), R & R adopted 2022 WL 1486492 (S.D.N.Y. May 11, 2022) (finding no prejudice in extra-record evidence that “was largely cumulative of other evidence in the record”). Moreover, the Trial Judge instructed the jury that the “[first] trial or any reference to it, is not evidence of anything, and you are not to speculate or consider it.” (Ex. 22H at 4030:13-18; see also Ex. 22U at 10138:20-23.) See Smith v. Graham, 2012 WL 2428913, at *18 (affirming state court's dismissal of petitioner's juror misconduct claim where “jury was already aware that Petitioner was on parole ... and ... would thus have recognized that Petitioner had a prior criminal history” and jury had received specific instructions not to allow Petitioner's parole status to influence their verdict).
Second, Hernandez's claim is speculative and based on hearsay. Hernandez offered no affidavits from jurors, and none of the jurors spoken to by investigator O'Brien confirmed that they learned about the first panel jurors from a court officer. See CPL § 330.40(2)(a) (“The moving papers must contain sworn allegations, whether by the defendant or by another person or persons, of the occurrence or existence of all facts essential to support the motion. ... Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief”); see generally Agosto v. Senkowski, No. 99-CV-9013, 2004 WL 1814020, at *10 (S.D.N.Y. Aug. 16, 2004) (“Under New York Law, a defendant's motion made pursuant to CPL § 330.30 is deemed to contain sworn allegations of all facts essential to support the motion where the affiant swears as to the juror misconduct he or she allegedly has observed or heard”) (internal quotation marks omitted). Although Hernandez need only meet an “upon information and belief” standard, hearsay allegations are not sufficient. See Dexter v. Artus, No. 01-CV-237, 2007 WL 963204, at *10 (N.D.N.Y. March 27, 2007) (stating that trial court's refusal to conduct an evidentiary hearing was in compliance with state statutory law where allegations on which the motion was brought were hearsay). Further, “[a] post-verdict hearing on allegations of juror impartiality is only required when ‘the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality.'” Stone v. Griffin, No. 17-CV-8741, 2020 WL 7390188, at *8 (S.D.N.Y. Aug. 29, 2020) (quoting Ianniello, 866 F.2d at 543.)
O'Brien's affidavits attesting to conversations with one alternate and two sitting jurors, as well as newspaper clippings memorializing the statement of another juror are all hearsay and “d[o] not serve to elevate [Hernandez's] claim of juror prejudice beyond the realm of speculation.” Black v. Graham, No. 11-CV-1495, 2014 WL 496878, at *7 (S.D.N.Y. Feb. 4, 2014); see also Covington v. Warden, Five Points Correctional Facility, No. 11-CV-8761, 2014 WL 7234820, at *7, *15 (S.D.N.Y. Dec. 8, 2014) (affirming state court's denial of motion to set aside verdict where petitioner presented only inadmissible hearsay and failed to provide a sworn statement by anyone observing the alleged misconduct); You v. Bennett, No. 00-CV-7514, 2003 WL 21847008, at *4 (E.D.N.Y. July 29, 2003) (affirming trial court's denial of motion to set aside the verdict where supporting letter “[was] hearsay ... not written by the holdout [juror] but by another juror [who] speculates as to why the holdout changed her mind”). Hernandez's counsel's recitation of the various newspaper articles similarly does not constitute personal knowledge or facts provided on information and belief.
Hernandez attempts to distinguish this case from People v. Samandarov, 13 N.Y.3d 433 (2009), cited by both the Appellate Division and the Government. In Samandarov, the New York Court of Appeals affirmed a lower court's denial of defendant's CPL § 330.30 motion that was based on “an affirmation of his counsel, which in turn relied on a newspaper article and on information given to a counsel by an unnamed ‘neighbor' said to be a ‘co-worker' of the foreperson of the jury.” 13 N.Y.3d at 436. “Even putting aside the hearsay nature of this evidence” the court stated that Defendant had submitted nothing to show any outside influence. Id. at 13 N.Y.3d at 437. Hernandez is correct that his submissions are distinct from those offered in Samandarov in that they contain allegations that the jury actually received information from outside the courtroom. But allegations of a court officer telling sitting jurors that first trial jurors were sitting with Patz's family does not by itself convey an attempt to influence. Regardless, as the Court understands it, the Government cites to Samandarov for its determination on the hearsay nature of the proffered evidence. And, as was the case in Samandarov, the affidavits presented here offer only hearsay, and speculation, as to what a juror may have been told by a court officer.
Third, while Hernandez is correct that a “wide variety of information” can prejudice a jury (Pet. Mem. at 66), the information at issue here is unlike prior instances of juror misconduct. At most, Hernandez argues that sitting jurors were made aware, maybe by a court officer, of the presence of first-trial jurors in the courtroom and their association with the Patz family. Hernandez makes no allegations of jurors being told that he was guilty as in Parker, or jurors being informed about excluded evidence and external analysis as in Mattox, or of attempted bribery of a juror as in Remmer. And, unlike those cases, Hernandez provided no supporting testimony from any juror or other person with first-hand knowledge attesting to attempted or actual improper influence. See Taus v. Senkowski, 293 F.Supp.2d 238, 250 (E.D.N.Y. 2003), aff'd Taus, 134 Fed.Appx. 468 (“The failure of petitioner either in the state court or in this federal court to support his claims with a sworn statement from [the relevant juror] provides only an attenuated foundation for relief”); Jones v. Duncan, 162 F.Supp.2d 204, 219 (S.D.N.Y. 2001) (referring to trial court's denial of CPL § 330.30 motion “in part because the motion[] [was] not supported by affidavits and [was] based on hearsay,” was “based on and in compliance with state statutory law,” and was “not constitutionally deficient”). “To disturb a trial court's decision based on statements of speculation and conjecture would be untenable given the considerable deference the trial judge is afforded in ruling on such motions.” Stone, 2020 WL 7390188, at *9 (citing Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994)).
Hernandez's allegations are also dissimilar from additional cases in which courts have found juror misconduct. Cf. Turner, 379 U.S. at 473-74, 85 S.Ct. at 550 (finding petitioner's basic rights were undermined by comingling of jury and key witnesses for the prosecution during sequestration); Irwin v. Dowd, 366 U.S. 717, 725-27, 81 S.Ct. 1639, 1644-46 (1961) (reversing conviction where jury was exposed to media coverage detailing petitioner's criminal history and suggesting his guilt); United States v. Morrison, 984 F.Supp.2d 125, 134-38 (E.D.N.Y. 2013) (applying Remmer to vacate verdict where juror was offered a bribe to sway verdict).
The Government argues that Hernandez's allegation is “more akin to one in which trial spectators have been alleged to have influenced the jury,” citing to Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649 (2006), where the Supreme Court found that petitioner was not inherently prejudiced by members of the victim's family wearing buttons displaying the victim's image in court. (Resp. Mem. at 146.) Hernandez retorts that this case is nothing like Carey because “the jury was made aware that this was Hernandez's second trial and that the jurors from the first trial were sitting with Etan's father.” (Pet. Reply at 29.) Because Hernandez's claim fails as presented, the Court does not assess the Government's “spectator” analysis.
In sum, Hernandez provided neither the form nor substance of proof required to support his claim of juror misconduct. The state courts thus did not fail to adhere to controlling Supreme Court law or unreasonably exercise their discretion according to state rules to determine that the requisite threshold for a hearing had not been met.
CONCLUSION
As noted elsewhere in this Report and Recommendation, Hernandez has raised troubling issues with respect to the manner in which his confessions were obtained, the extent to which his post-confession waiver of Miranda rights was made voluntarily and intelligently, and the Trial Court's response to the jury request for an explanation about the relationship between Hernandez's pre- and post-Miranda confessions. The Court, however, is constrained by the strictures imposed under AEDPA and Congress's decision to put habeas relief beyond the reach of a petitioner whose conviction raises reasonable doubt in the mind of at least one fair-minded jurist. For the reasons stated above, Hernandez's petition does not survive review under AEDPA. The petition should be DENIED and the case dismissed.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Colleen McMahon, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge McMahon. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.