Summary
finding no constitutional error where "trial court instructed the jury not to intermingle the evidence pertaining to the separate charges but rather assess the evidence pertaining to each charge separately"
Summary of this case from Marino v. Superintendent, Franklin Corr. FacilityOpinion
05 Civ. 564 (SAS).
September 28, 2007
For Petitioner: Glenn A. Garber, Esq., New York, NY.
For Respondent: Susan Axelrod, Assistant District Attorney, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Daniel Oliveira ("petitioner") brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("section 2254") directing his release from custody arising from a judgment of the Supreme Court, New York County, entered on March 13, 2001. Petitioner was convicted, after a jury trial, of two counts of Murder in the First Degree, two counts of Murder in the Second Degree, two additional counts of Murder in the Second Degree, and two counts of Robbery in the First Degree. Petitioner is currently serving his sentence at Green Haven Correctional Facility.
See New York Penal Law § 125.27[1].
See id. § 125.25[1].
See id. § 125.25[3].
See id. § 160.15[3]. Petitioner was sentenced to concurrent terms of life imprisonment without parole in connection with each of the first degree murder convictions. Petitioner was also sentenced to four terms of twenty-five years to life for the second degree murder convictions and two terms of twelve and one-half to twenty-five years for the robbery convictions. Those six sentences were to run consecutively to each other and concurrently with the sentences imposed for the first degree murder convictions.
II. FACTS
A. The Murder of Roman and Brooks
Petitioner's convictions arose from the murders of Angel Roman and Roger Brooks in 1997. Posing as a Columbia undergraduate student, petitioner met Roman in late 1996. He befriended Roman, spending the holidays with Roman and Roman's roommate, Manuel Vega, in Roman's apartment in Manhattan. At the end of February, 1997, Vega left to spend time with his family in Puerto Rico. Petitioner visited Roman on March 12, 1997, when Roman took him to brunch. Later that day, petitioner began using Roman's credit cards. Over the next few days, bank surveillance cameras photographed petitioner as he used Roman's Diner's Club card to make cash withdrawals at a number of different automatic teller machines ("ATM's") throughout New York City. He also used Roman's Visa and American Express cards to buy jewelry, clothing and sunglasses. The total of his purchases over the next month came to several thousand dollars.
Meanwhile Vega had been calling Roman repeatedly from March 11 to March 18, 1997. Roman had not answered his telephone or returned the messages that Vega left on his voice mail. Fearing something was wrong, Vega returned to New York on March 18, 1997 and discovered Roman lying dead on the floor of his bedroom. His hands and feet were bound and he had been stabbed to death. There was blood on the walls and telephone and there were newspapers lying on the kitchen table. Although Vega described petitioner to the police, they were unable to locate him and the case remained open for a number of months.
In August 1997, petitioner met Roger Brooks, who had recently moved to New York to work at Barbetta Restaurant as the maitre d'. Petitioner initially interviewed for a job at this restaurant. Although Brooks did not hire him, he introduced petitioner to another restaurant, Allegria, hoping there was an opening for a busboy there. Petitioner filled out a job application at Allegria and left the phone number of a friend, Weber Tysver, as his contact number.
On August 30, 1997, petitioner called Brooks' apartment several times throughout the day. Although petitioner had made plans with his friends to spend the day with them, he disappeared for a number of hours, explaining that he needed to study. When he and his friends met for dinner later that evening, petitioner paid with Brooks' credit card. Over the next couple of days, he made a number of purchases for himself and his friends, all with Brooks' American Express card.
Brooks' daughter had been expecting him at her home in Maryland on August 30, 1997. When he did not show up, she notified the police. The next day, they went to Brooks' apartment where they discovered him, lying dead on the floor. He had been stabbed several times and the gold antique crucifix that he wore around his neck was missing.
B. Petitioner's Arrest
Detective George Delgrasso, a detective assigned to the Brooks investigation, obtained Tysver's contact information from Allegria. On September 20, 1997, Detective Delgrasso went to Tysver's home and asked him to accompany him to the precinct to discuss the use of certain stolen credit cards. At the precinct house, the police read Tysver his rights, which he waived. Tysver told Detective Humphreys that on Saturday, August 30, 1997, he went to dinner at a restaurant with petitioner and petitioner's friend, Brian O'Donnell. Tysver stated that petitioner paid the restaurant bill with a credit card and that he used a credit card to purchase a pair of sneakers at a nearby store. Tysver also told the police that petitioner and O'Donnell invited him to go to the Bronx Zoo with them the following Monday but he had declined. Tysver informed the police that petitioner could most likely be found at O'Donnell's apartment. After Tysver gave the detectives O'Donnell's telephone number, they obtained his address and went to his apartment.
At about 4:00 p.m., O'Donnell and petitioner were returning from the gym. Petitioner was carrying his black gym bag. Two detectives approached the men, informed them that they had discovered a problem with a credit card, and asked them if they would be willing to go to the precinct to straighten everything out. Petitioner did not respond, but O'Donnell agreed and the detectives brought O'Donnell and petitioner to the precinct for questioning.
At the precinct, the two men were separated. A detective read O'Donnell his rights. After O'Donnell signed the Miranda card, he told Detective Humphreys that he and petitioner had been involved in a romantic relationship for approximately two months and that they had spent Labor Day weekend together. O'Donnell confirmed Tysver's account of the evening of Saturday, August 30, 1997. He also told the detectives that, on Sunday, August 31, 1997, he and petitioner had gone to Macy's where petitioner made a number of purchases. They spent Monday at the Bronx Zoo. There, petitioner attempted to purchase a camera with a credit card which was declined. Petitioner produced a second card, which was also declined. As a result, O'Donnell and petitioner split the cost of the camera and paid cash. The detectives then escorted O'Donnell back to his apartment where they retrieved some of the items petitioner had purchased, as well as petitioner's gym bag.
Dectectives Humphreys and Delgrasso then went to speak with petitioner. Because petitioner had a thick Portuguese accent, Detective Humphreys arranged for another police officer, Sergeant Victor Araujo, to interpret. In response to pedigree questions, petitioner stated that his full name was Allan Daniel Oliveira, that he lived at 522 West 136th Street, apartment 5C, and that his date of birth was September 15, 1973.
Detective Humphreys then read petitioner his Miranda rights. Although petitioner responded that he understood each right and was willing to answer questions, he initially refused to sign the Miranda card. After Detective Delgrasso showed petitioner the Miranda cards signed by Tysver and O'Donnell, petitioner agreed to sign his card. Petitioner was subsequently interrogated for two hours. During that interrogation, petitioner told the police that he had been taking classes at Columbia University and that he was living in campus housing with two roommates. He insisted that he did not have a telephone at his apartment. Petitioner claimed that he had been receiving money from his mother but because she stopped sending him money, he ceased his class work two months ago. Petitioner denied knowing Brooks and denied that he used Brooks' credit cards. Petitioner also denied that he went out to dinner with Tysver and O'Donnell on August 30, 1997.
Petitioner's statements contradicted Tysver's and O'Donnell's accounts of the Labor Day weekend. To confront petitioner with the inconsistencies, the detectives brought Tysver, and then O'Donnell, into the room. While Tysver was in the room, petitioner admitted that he had gone out to dinner at the restaurant at 18th and 8th that weekend. He still insisted that he did not pay for the meal. When O'Donnell came in to the room, the detectives placed on a table the towels retrieved from O'Donnell's apartment which petitioner had purchased at Macy's. As with Tysver, petitioner ultimately admitted that he had eaten dinner at the restaurant at 18th and 8th, although he claimed that Tysver paid the check. As for the Macy's items, petitioner insisted that O'Donnell bought them. The detectives also produced the crime scene photographs of Brooks and showed them to petitioner, who maintained that he did not know Brooks and had no idea what had happened in Brooks' apartment. At that point, O'Donnell left the room.
Tysver returned a second time. When Tysver asked petitioner about the zoo and the Macy's purchases, petitioner acted as if he did not know what he was talking about. Finally, Tysver told petitioner that he needed to tell the truth because Brooks was dead. At that point, the interview ended because petitioner asked for a lawyer.
The detectives placed petitioner in a lineup that night. A waiter at Allegria identified petitioner as the person who had come in with Brooks the previous month in search of a job. A salesclerk at Davis Optical identified petitioner as the person to whom she had sold Gucci sunglasses on August 31, 2007. Subsequent DNA testing revealed that it was petitioner's blood on the telephone in Roman's bedroom. The police also compared fingerprints lifted from newspapers on Roman's kitchen table with petitioner's fingerprints and learned that one of the prints on the newspapers belonged to petitioner.
On September 21, 1997, the police obtained two search warrants: one for petitioner's gym bag and one for his apartment. In searching the gym bag, they recovered Brooks' antique gold cross, a pair of Gucci sunglasses, Visa travelers checks, black electrical tape, latex gloves, and various other items. The following day, the police searched petitioner's apartment and found, along with photographs and petitioner's passport, a piece of paper containing flight information for Brooks' trip to Maryland.
On September 26, 1997, the police returned to petitioner's apartment with a third search warrant, looking for items pertaining to Columbia University, such as school books or a student identification card. They did not find anything that indicated that petitioner had been a student at Columbia.
By New York County Indictment Number 4259/98, petitioner was charged with two counts of Murder in the First Degree, two counts of Murder in the Second Degree (intentional), two counts of Murder in the Second Degree (felony murder), and two counts of Robbery in the First Degree. After a hearing, New York Supreme Court Justice Charles J. Tejada denied petitioner's motion to suppress statements made while he was in custody and identification testimony. On January 19, 2001, petitioner proceeded to a jury trial. The jury convicted petitioner of all counts and he was sentenced on March 13, 2001.
C. Petitioner's Appeal and Habeas Petition
Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. Petitioner argued that he was prejudiced when the trial court failed to sever the two homicides and related robbery counts as he could not receive a fair trial while having to simultaneously defend against two unrelated first-degree murder charges. In addition, petitioner argued that severance was required because he needed to testify in his own defense in the Roman case while invoking his right to remain silent in the Brooks case. Furthermore, he argued, severance was required because of the high likelihood that the jury would evaluate the evidence of the Roman and Brooks cases, which arguably differed substantially in quality and type, cumulatively rather than separately.
Petitioner also argued that his in-custody statements to the police were obtained in violation of the Vienna Convention on Consular Relations ("VCCR") and that the trial court committed reversible error when it denied his motion to suppress statements made in violation of his Fifth Amendment rights. Petitioner further claimed that the trial court abused its discretion by failing to suppress physical evidence seized pursuant to two invalid search warrants. Additionally, petitioner complained that the cumulative effect of these errors required reversal. Lastly, petitioner argued that a sentence of life without parole was excessive. The Appellate Division affirmed petitioner's conviction in a unanimous opinion.
See People v. Oliveira, 767 N.Y.S.2d 437 (1st Dep't 2003).
The Appellate Division found that the two sets of offenses had been properly joined and that the trial court had not abused its discretion in refusing to sever them. Petitioner's claim that he would have testified in connection with one of the murders and not the other was found to be unconvincing, particularly where his proposed testimony regarding the Roman homicide would have opened the door to evidence of crimes charged in the Brooks homicide.
The court properly exercised its discretion in denying defendant's motion, made pursuant to CPL 200.20(3), for a severance of counts relating to offenses that had been properly joined as "the same or similar in law" (CPL 200.20 [2] [c]). The evidence as to the two incidents was capable of being easily segregated by the jury ( see People v. Streitferdt, 169 A.D.2d 171 [1st Dep't 1991], lv. denied, 78 N.Y.2d 1015 [1991]). There was no significant variance in the quantity of proof; on the contrary, the evidence of guilt as to both incidents was overwhelming. Defendant's assertion of a need to testify as to one incident but not the other was unconvincing ( see People v. Lane, 56 N.Y.2d 1, 8-9 [1982]), particularly since his proposed testimony would have opened the door to evidence of the crimes charged in the second incident ( see People v. Wright, 300 A.D.2d 191 [1st Dep't 2002], lv. denied, 99 N.Y.2d 634 [2003]).
Id. at 438 (parallel citations omitted).
The Appellate Division also found that petitioner's statements had been properly admitted into evidence.
The court properly denied defendant's motion to suppress his statements. The hearing court properly credited police testimony that defendant, whose native language is Portuguese, was asked, through a Portuguese interpreter, each question on a Miranda card, and that defendant answered "yes" in Portuguese and wrote that same answer after each question on the card, including the inquiry as to his willingness to answer questions. Defendant's initial hesitancy in affixing his signature to the card did not constitute an invocation of his right to remain silent, since he had expressly agreed to answer questions ( see People v. Robinson, 287 A.D.2d 398 [1st Dep't 2001], lv. denied, 98 N.Y.2d 680 [2002]; People v. DaCosta, 201 A.D.2d 402 [1st Dep't 1994], lv. denied, 83 N.Y.2d 871 [1994]).
Id. (parallel citations omitted).
The Appellate Division also found that the trial court properly denied defendant's motion to suppress physical evidence recovered pursuant to two valid search warrants. Finally, the court declined to reduce petitioner's sentence. Petitioner then sought leave to appeal to the New York Court of Appeals, which was denied in an Order dated February 27, 2004.
See id.
See id.
See People v. Oliveira, 1 N.Y.3d 632 (2004).
Petitioner filed his original section 2254 petition on January 14, 2005, and an amended petition, which incorporated the appellate brief he submitted to the Appellate Division, on March 16, 2005. Petitioner was then appointed counsel on November 9, 2005. Respondent opposed petitioner's amended petition on January 18, 2006. Subsequently, petitioner's court-appointed attorney, Glenn A. Garber, filed a supplemental memorandum on August 15, 2006. Respondent was then given the opportunity to file a Supplemental Answer, which he did on August 28, 2007. Petitioner then filed Petitioner's Reply to State's Supplemental Answer ("Reply") on September 21, 2007.
See Supplemental Memorandum of Fact and Law and Appendix in Support of Motion to Vacate Conviction Pursuant to 28 U.S.C. § 2254 and Reply to Answer in Opposition ("Supp. Mem.").
In the instant petition, as supplemented by counsel's Supplemental Memorandum, Oliveira raises both severance and suppression claims. With regard to severance, petitioner argues that the trial court's joinder of the allegedly unrelated Roman and Brooks murder and robbery charges violated his constitutional rights to due process and a fair trial. Furthermore, petitioner contends that his Sixth Amendment right to testify and present a defense on the Roman case and his Fifth Amendment right to remain silent on the Brooks case were fatally undermined by the improper joinder. With regard to the suppression of statements, petitioner argues that the failure to stop his interrogation when he refused to sign the Miranda form violated his constitutional right to remain silent and his right to counsel.
The claim that the physical evidence should have been suppressed, raised by Oliveira in his pro se 2254 petition, has been withdrawn by counsel. See Supp. Mem. at 12 n. 9 ("There [were] also various items of physical evidence that were found pursuant to two separate search warrants. Oliveira raised a claim in his pro se petition challenging the failure to suppress physical evidence. The claim is not elaborated on herein."). In addition, petitioner's claim that his post-arrest statements should have been suppressed because the police never notified him that he could confer with the Brazilian Consulate before questioning has been withdrawn. See id. at 43 ("The VCCR claim is not being further advanced herein in light of Sanchez-Llama v. Oregon, ___ U.S. ___, 126 S. Ct. 2669 (June 28, 2006).").
III. LEGAL STANDARD
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA provides that a federal court can grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As explained by the Supreme Court, a state-court decision is "contrary to" clearly established federal law in the following instances:
First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.
Williams v. Taylor, 529 U.S. 362, 405 (2000).
With regard to the "unreasonable application" prong, the Supreme Court has stated that
a state-court decision can involve an "unreasonable application" of this Court's clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Id. at 407.
In order for a federal court to find a state court's application of Supreme Court precedent to be unreasonable, the state court's decision must have been more than incorrect or erroneous: "[t]he state court's application of clearly established law must be objectively unreasonable."
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
In applying the "unreasonable application" test, a federal court should ask "whether the state court's application of clearly established federal law was objectively unreasonable." This standard "`falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'" While the test requires "`[s]ome increment of incorrectness beyond error, . . . the increment need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'"
Williams, 529 U.S. at 409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
Id. (quoting Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (emphasis in original)).
Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."
Williams, 529 U.S. at 411.
IV. DISCUSSION
A. Petitioner's Severance Claims
Petitioner claims that the trial court abused its discretion when it denied his motion to sever the counts relating to the Roman homicide from those involving the Brooks homicide. Petitioner asserts that he was entitled to severance because: (1) he was not able to testify solely about the Roman homicide and remain silent in connection with the Brooks homicide; (2) he had to defend against two allegedly unrelated first degree murder charges; and (3) there was a high likelihood that the jury would evaluate the evidence of the two murders cumulatively rather than separately. Petitioner claims that the Appellate Division's decision affirming the trial court's joinder was unreasonable as he clearly established that such joinder denied him his constitutional rights to due process of law and to a fair trial.
Petitioner is not entitled to habeas corpus relief on the basis of improper joinder or failure to sever. The rules of joinder and severance are state-court rules and habeas relief is generally not available for violations of such rules. If the joinder of offenses results in a violation of due process, however, then a petitioner may be entitled to habeas relief. When a petitioner claims a due process violation arising from joinder, he must show that the joinder of offenses "`actually render[ed] petitioner's state trial fundamentally unfair and hence, violative of due process.'" A petitioner bears a high burden in establishing that he is entitled to such relief.
See Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993).
Id. (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976)).
See id. at 378 ("[I]t is appropriate that habeas petitioners challenging their state convictions under the general `fairness' mandate of the due process clause bear an onerous burden. Because of the significant procedural protection provided by direct review through the state system, we will not lightly conclude that state court proceedings were so arbitrary as to violate due process.") (citing Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (presumption of finality and legality attaches to state criminal proceedings)).
Joinder has been recognized "as a constitutionally acceptable accommodation of a defendant's right to a fair trial" because "consolidated prosecutions `conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.'" Courts have recognized that joinder carries some risk to a defendant because it is possible that jurors may view testimony cumulatively to convince them of a defendant's guilt when they might not otherwise be persuaded. Moreover, a defendant charged with two or more crimes may seem more culpable than a defendant charged with only one crime.
Herring, 11 F.3d at 377 (quoting Bruton v. United States, 391 U.S. 123, 134 (1968)).
To minimize the risk of cumulative evaluation, a jury is generally instructed not to engage in that type of fact-finding. A jury so instructed is presumed to follow those instructions. See id.
Furthermore, a defendant may be entitled to severance if he can make a "`convincing showing that he has both important testimony to give concerning one count and [a] strong need to refrain from testifying on the other.'" "Courts have recognized that `[p]rejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence.'" The potential for prejudice has been explained as follows:
United States v. Sampson, 385 F.3d 183, 191 (2d Cir. 2004) (quoting United States v. Werner, 620 F.2d 922, 930 (2d Cir. 1980)).
Id. at 190-91 (quoting Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964) (alteration in original)).
[B]ecause of the unfavorable appearance of testifying on one charge while remaining silent on another, and the consequent pressure to testify as to all or none, the defendant may be confronted with a dilemma: whether, by remaining silent, to lose the benefit of vital testimony on one count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other.
Id. at 191 (quoting Baker v. United States, 401 F.2d 958, 976 (D.C. Cir. 1968) (alteration in original)).
Here, petitioner insists that he is entitled to habeas relief because he would have testified in the Roman case but would have remained silent in the Brooks case. Joinder of both cases foreclosed this defense strategy. Petitioner claims that in connection with the Roman homicide, he would have testified that he had been to Roman's apartment several times and that Roman had given him permission to use his credit cards. In addition to providing an innocent explanation for the use of Roman's credit cards, this testimony would have explained the presence of petitioner's DNA and fingerprints in Roman's apartment. In connection with the Brooks homicide, petitioner could not have testified truthfully that he had Brooks' permission to use his credit cards; nor could he account for his whereabouts at the time of the murder. Thus, petitioner had every reason to refrain from testifying in connection with the Brooks case.
The crucial question, then, is whether petitioner's innocent explanation for the possession of Roman's credit cards would have opened the door to cross-examination about the Brooks case and, if so, to what extent. According to petitioner, "the key issue in dispute with respect to both murders was identity, as Oliviera's defense to both homicides was that he was not the killer." Petitioner further argues that "the Brooks murder and the Roman murder were not similar or unique enough to meet the standard of admissibility for other-crimes evidence to prove identity." Moreover, because petitioner's state of mind was never in dispute with regard to either homicide, petitioner claims that other-crime evidence would not have been admissible to prove intent. Petitioner thus concludes that "the evidence relating to each murder would not have been mutually admissible in separate trials" and that joinder of the two cases "enabled the prosecution to present to the jury irrelevant but highly prejudicial evidence that violated his rights to a fair trial and due process of law."
Compare Supp. Mem. at 30 ("And, while he would have admitted (had he testified) that Roman permitted him to use his credit cards, that would not have opened the door to the Brooks murder — possibly the credit use, but not the murder which was by far the most prejudicial evidence.") with Supplemental Answer at 4 ("That assertion is simply misguided. Petitioner's possession of [Brooks'] cards was a direct result of his actions in murdering Brooks. Put differently, the People would certainly have been able to ask petitioner just how he had obtained Brooks' credit cards and, if petitioner denied killing him, introducing evidence on rebuttal to establish that fact.").
Reply at 3.
Id. ("Other-crimes evidence is only admissible to prove identity where the other crime and the charged crime share `a distinctive modus operandi.'") (quoting Sampson, 385 F.3d at 192 n. 7).
See id. at 6-7 (quoting Sampson for the proposition that "intent is not placed in issue by a defense that the defendant did not do the charged act at all, and . . . when a defendant unequivocally relies on such a defense, evidence of other acts is not admissible for the purpose of proving intent") (quotation marks and citations omitted).
Id. at 4.
Notwithstanding petitioner's analysis of the identity and intent exceptions to the general rule regarding the inadmissibility of other-crime evidence, the prosecution would have been able to introduce evidence of Brooks' murder in rebuttal. This is not a case governed by the five traditional Molineux points or, by analogy, the exceptions listed in Federal Rule of Evidence 404(b). Rather, as respondent argues, the prosecution surely would have been able to ask petitioner how he obtained Brooks' credit cards on cross-examination. Consequently, if petitioner were to have denied killing Brooks, the prosecution would have been able to introduce evidence on rebuttal establishing that petitioner did, in fact, murder Brooks. In sum, petitioner's proposed testimony in the Roman case would have opened the door to cross-examination about the Brooks homicide, even if such evidence had been excluded from the prosecutor's case-in-chief on the Roman case. Thus, the jury would have heard about both murders, even if the charges had been severed. Accordingly, petitioner did not suffer substantial prejudice with regard to his Fifth and Sixth Amendment rights as a result of the joinder.
Although evidence of other crimes or bad acts is generally inadmissible to establish a defendant's propensity to engage in criminal behavior, exceptions exist when such evidence is relevant to establish motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the defendant. See People v. Molineux, 168 N.Y. 264, 293 (1901).
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." Fed.R.Evid. 404(b).
In any event, petitioner concedes that he would not have testified on the Brooks case, even if it had been tried separately. Thus, "[petitioner's] ability to put on a defense was not substantially affected by the joint trial." Petitioner is therefore not entitled to have his convictions on the Brooks charges set aside on the ground that he was unable to present a defense in that case. Accordingly, petitioner's claim that he was denied a fair trial and due process because the joinder impermissibly interfered with his right to testify and his right to remain silent is without merit.
Sampson, 385 F.3d at 194.
Petitioner also complains about having to defend against two first degree murder charges. This claim is equally without merit. Petitioner is merely claiming that it was difficult for him to defend against two unrelated murder charges. It is not enough for a criminal defendant to claim that he suffered adversely when tried for two crimes, rather than one, as that would defeat joinder of multiple charges in every case. And while it is true that these two murders were unsettling, courts have permitted the joinder of charges equally disturbing as the instant offenses. Thus, the mere fact that petitioner faced two unrelated murder charges is not enough to entitle him to habeas relief.
Id. at 190.
See, e.g., United States v. Amato, 15 F.3d 230, 236-37 (2d Cir. 1994) (joinder proper for a total of seven counts including RICO charges, murder and conspiracy to commit murder charges, loan sharking and illegal possession of a gun).
Finally, petitioner claims that severance was mandated because there was a "high likelihood" that the jury would evaluate the crimes cumulatively. In this vein, petitioner argues that the "state prosecutor made every effort to intertwine the unrelated factual scenarios and exploit the similarities to garner a conviction on both cases." Although petitioner's prejudicial spillover claim presents a close question, it does not entitle him to habeas relief.
Supp. Mem. at 26.
"[B]ecause the evidence with respect to each murder was distinct and easily compartmentalized, the risk of jury confusion at petitioner's trial was significantly limited." Herring, 11 F.3d at 378 (citing United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir. 1988) (defendants were not substantially prejudiced by joint trial where "the evidence with respect to each of the defendants was adequately straightforward that the jury could consider it without any significant spillover effect")).
Courts have recognized that the risk of cumulative evaluation is inherent in all joinder cases but have permitted joint trials where the jury is instructed not to intermingle the proof. Here, the trial court instructed the jury not to intermingle the evidence pertaining to the separate charges but rather assess the evidence pertaining to each charge separately. Juries are presumed to follow a trial court's instructions. Moreover, petitioner offers no reason to believe that the jury did not follow this instruction. Thus, petitioner has not shown that the alleged "spillover" effect caused by the joinder, if any, rose to the level of a constitutional violation which would warrant habeas relief.
See, e.g., United States v. Maciejewski, 70 F. Supp. 2d 129, 136 (N.D.N.Y. 1999); United States v. Henry, 861 F. Supp. 1190, 1200 (S.D.N.Y. 1994).
See 2/9/01 Trial Transcript at 2780-81 ("Further, members of the jury, each count of the indictment charges a separate and distinct criminal offense. Therefore, you are required during your deliberations to segregate and keep in mind the evidence applicable to each separate count of the indictment. You must not intermingle the evidence pertaining exclusively to any one count with that applicable to any other count.").
See United States v. Stewart, 433 F.3d 273, 307 (2d Cir. 2006).
Finally, even assuming the cases should have been severed, any error resulting from their joinder was harmless. The evidence against petitioner of both homicides was overwhelming. In the Roman case, petitioner was observed with Roman shortly before his death. Then, shortly after Roman was killed, petitioner was captured on bank surveillance cameras using Roman's bank cards at ATMs. Petitioner's fingerprints and blood were also found at Roman's apartment. Similarly, in the Brooks case, the evidence established that petitioner used Brooks' credit cards soon after Brooks had been killed. The police also recovered from petitioner's gym bag the crucifix that Brooks had worn. Thus, in all likelihood, petitioner would have been convicted of each homicide, even if the two offenses had been tried separately. Petitioner is therefore not entitled to habeas relief even if the joinder was in error.
See United States v. Lane, 474 U.S. 438, 450 (1986) (applying harmless error analysis to joinder under Rule 8 of the Federal Rules of Criminal Procedure).
For the reasons stated above, the Appellate Division's decision affirming the trial court's refusal to sever the Roman and Brooks cases was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Habeas relief is therefore not available with respect to petitioner's severance claims.
B. Suppression of Petitioner's In-Custody Statements
Petitioner claims that the statements he made to the police should have been suppressed at trial. Petitioner maintains that he invoked his right to remain silent after he was read his Miranda warnings. The law is well-settled that custodial interrogation must be preceded by Miranda warnings. When a criminal defendant indicates, in any manner, that he wishes to remain silent, the interrogation must cease.
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
See id. at 473-74.
Prior to trial, the state court conducted a Huntley hearing at which Detective Humphreys testified. Detective Humphreys testified that he read petitioner his Miranda warnings from a card. Petitioner responded in Portuguese that he understood each right and then wrote, in Portuguese, "sim," which means "yes" in Portuguese, after each question on the card. In particular, petitioner responded in the affirmative when asked: "Now that I have advised you of your rights, are you willing to answer questions?" Petitioner wrote "sim" after that question. At no point did petitioner indicate that he did not understand what was being asked of him.
After petitioner was read his rights, Detective Humphreys asked him to sign the Miranda card. Petitioner did not do so, which Humphreys interpreted to mean that he was not sure whether or not he wished to put his signature on the document. Detective Delgrasso then left the room, returning a few minutes later with the Miranda cards signed by O'Donnell and Tysver. Detective Delgrasso showed these cards to petitioner, who then signed his own card. The police then conducted an interview of petitioner that lasted approximately two hours.
In an oral decision, the trial court denied petitioner's suppression motion. The court credited Detective Humphreys and made findings of fact consistent with his testimony. The court found that the detectives informed petitioner of his Fifth Amendment rights, both orally and in writing, and that he understood and waived them when he spoke to the detectives.
Petitioner, on the other hand, argues that his initial reluctance to sign the Miranda card constituted an invocation of his right to remain silent and that the police failed to honor that right. Petitioner cannot, however, demonstrate that the state court's decision was an unreasonable application of federal law or involved an unreasonable determination of facts. In reviewing and rejecting petitioner's suppression motion, the Appellate Division endorsed the trial court's factual determinations. Petitioner answered "yes" in Portuguese to each question on the Miranda card and unequivocally stated that he was willing to answer questions. The Appellate Division concluded that petitioner's "initial hesitancy in affixing his signature to the card did not constitute an invocation of his right to remain silent, since he had expressly agreed to answer questions." This ruling constituted an appropriate determination of the facts, based on the evidence adduced at the hearing. It also constituted a proper application of federal law as determined by the United States Supreme Court.
People v. Oliveira, 767 N.Y.S.2d at 438.
Petitioner never invoked his right to remain silent. In fact, the opposite is true. Petitioner specifically agreed to answer questions and indicated such in writing, placing the word "yes" next to the question asking whether he was willing to answer questions. Nor did the fact that petitioner hesitate to sign the Miranda card constitute an invocation. As the hearing testimony made clear, the signing of the card was an act separate and independent from petitioner's acknowledgment of the rights themselves. Prior to being asked to sign the card, petitioner was verbally advised of his Miranda rights. Thus, petitioner's initial refusal to sign the card had nothing to do with his decision whether or not to speak with the detectives. Indeed, a criminal defendant's refusal to sign a Miranda card does not, without more, constitute an invocation of his right to remain silent. Here, petitioner did not refuse, but simply hesitated before signing the card.
See, e.g., North Carolina v. Butler, 441 U.S. 369, 376 (1979) ("The Courts of Appeals have unanimously rejected the . . . argument that refusal to sign a written waiver form precludes a finding of waiver."); United States v. Spencer, 995 F.2d 10, 12 (2d Cir. 1993) (notwithstanding defendant's refusal to sign the waiver form, his statement that he was prepared to answer the interrogators' questions to the best of his ability was a sufficient waiver); United States v. Boston, 508 F.2d 1171 (2d Cir. 1974) (fact that the defendant refused to sign a written waiver of his Fifth Amendment rights did not bar admission of his confession where the record revealed that the defendant understood his rights and decided to speak to the police); United States v. Dillard, No. 99 CR 214, 2000 WL 987267, at *1 (S.D.N.Y. July 18, 2000) ("An explicit statement of waiver is not necessary to demonstrate that a defendant is voluntarily and knowingly waiving the right to remain silent.") (citing Butler, 441 U.S. at 375 ("an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent.")).
Assuming, arguendo, that petitioner's statements in which he denied knowing Brooks or using his credit cards should have been suppressed, petitioner still cannot prevail. In order to obtain relief on habeas corpus, a petitioner must demonstrate that the relevant errors "had a substantial and injurious effect or influence in determining the jury's verdict." Petitioner cannot meet that burden. Petitioner had only been questioned in connection with the Brooks' homicide — at the time of his arrest, the police were unaware of his involvement in the Roman murder. Thus, his statements did not bear directly on the People's proof regarding the Roman homicide. Therefore, petitioner cannot establish that his statements had a substantial and injurious effect on the Roman portion of the trial. As to the Brooks homicide, petitioner's statements could hardly be described as a confession. Petitioner denied that he knew Brooks and that he used Brooks' credit cards. He also insisted that he did not pay the check for the meal he had at the restaurant at 18th and 8th with Tysver and O'Donnell. Finally, petitioner denied that he had made any purchases at Macy's or that he had gone to the Bronx Zoo on Monday, September 1, 1997. These statements did not constitute the type of compelling proof that could be expected to significantly affect the jury's verdict. Moreover, the evidence of petitioner's guilt with regard to both murders was so overwhelming that there is no doubt that the jury would have convicted petitioner even without the statements in issue. Thus, any error in admitting the statements was harmless and does not entitle petitioner to habeas relief.
Brecht, 507 U.S. at 637 (quotation marks and citation omitted) (under the harmless error standard, "habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in `actual prejudice'").
In sum, the hearing testimony established unequivocally that petitioner waived his Fifth Amendment rights and never invoked the right to remain silent. The Appellate Division's decision affirming the trial court was therefore a reasonable application of federal law as determined by the Supreme Court. Furthermore, even if the trial court erred in failing to suppress petitioner's statements, such error was harmless given the overwhelming evidence of petitioner's guilt. Thus, petitioner is not entitled to habeas relief on the ground that his statements were not suppressed.
C. Petitioner's Cumulative Effect Claim
Petitioner also maintains that he was denied a fair trial as a result of the cumulative effect of the various errors asserted in his petition. "Cumulative error analysis is an extension of harmless error." "`[A] cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'" To obtain habeas relief on this ground, a petitioner must satisfy the "substantial and injurious" Brecht standard.
Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003).
Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (quoting Darks, 327 F.3d at 1018).
See id. ("Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish `actual prejudice.'").
This claim is meritless. Because all of the rulings about which petitioner complains were proper, petitioner has suffered no harm, let alone cumulative harm. Moreover, none of the state-court rulings in issue could have had an injurious effect on the verdict given that the evidence against petitioner was overwhelming. Furthermore, the Appellate Division rejected petitioner's claim of cumulative error. Petitioner has failed to show that the court's decision constituted an unreasonable application of federal law. Thus, petitioner is not entitled to habeas relief on this ground.
D. Petitioner's Sentence Is Not Constitutionally Excessive
Petitioner was sentenced to a total of two concurrent terms of life imprisonment without the possibility of parole. Petitioner claims that his sentence should be reduced to a term of life imprisonment with the possibility of parole. Petitioner's excessive sentence claim, however, does not allege a constitutional violation. Petitioner did not argue to the state courts, and does not argue in the instant petition, that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. On the contrary, on appeal, petitioner argued that his sentence was excessive and asked the Appellate Division to reduce it in the interest of justice. Thus, petitioner seeks sentencing relief under discretionary state law principles, not under the Eighth Amendment.
A defendant convicted of Murder in the First Degree under New York Penal Law section 125.27 can be sentenced to life without parole or life with a minimum of twenty to twenty-five years imprisonment. See New York Penal Law § 70.00(2)(a) and (3)(a)(i). Accordingly, petitioner's sentence could be reduced, at most, to a maximum of life imprisonment with a minimum of twenty to twenty-five years imprisonment.
Under New York law, "as a matter of discretion in the interest of justice," the Appellate Division is authorized to reduce a sentence that, "though legal," is "unduly harsh or severe." New York Criminal Procedure Law § 470.15(6).
Petitioner would not be entitled to habeas relief even if he argued that his allegedly excessive sentence violated the Constitution. "It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief." Because petitioner cannot claim that his sentence fell outside the range authorized by New York law, his excessive sentence claim is not cognizable on habeas review.
Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . a sentence is within the range prescribed by state law.")).
See Alfini v. Lord, 245 F. Supp. 2d 493, 502 (E.D.N.Y. 2003).
V. CONCLUSION
Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability. The Clerk of the Court is directed to close this case.
SO ORDERED:
Middleton v. Attorneys General of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).