Arena v. Kaplan

• Decision Date: 08 July 2013
• Docket Number: No. 11–cv–2722 (ADS).,11–cv–2722 (ADS).
• Parties: Marie ARENA, Petitioner, v. Sabina KAPLAN, Superintendent of Bedford Hills Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

952 F.Supp.2d 468

Marie ARENA, Petitioner,

v.Sabina KAPLAN, Superintendent of Bedford Hills Correctional Facility, Respondent.

No. 11–cv–2722 (ADS).

United States District Court,

E.D. New York.

July 8, 2013.

Langone & Associates, PLLC by Richard M. Langone, Esq., Of Counsel, Garden City, NY, for the Petitioner.

Nassau County District Attorney's Office by Tammy J. Smiley, Yael V. Levy, Assistant District Attorneys, Mineola, NY, for the Respondent.

AMENDED MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The presently incarcerated Petitioner Marie Arena (“Arena” or the “Petitioner”) brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that she was denied her constitutionalrights through (1) prosecutorial misconduct that occurred during the prosecutor's cross-examination of Arena; (2) rebuttal testimony that violated her right to confront witnesses; (3) the ineffective assistance of counsel for her trial attorney's failure to request a missing witness charge; (4) the denial of her right to present evidence to support her claim that her confession to the police was involuntary; and (5) the Court's refusal to allow her to impeach another person's trial testimony. For the reasons that follow, the Court denies the petition in its entirety.

I. BACKGROUND

A. Factual Background

1. Steven Caramelli's interview

On January 25, 2001, Tom Cannata, the Petitioner's son-in-law, was shot to death. Steven Caramelli later pleaded guilty to attempted manslaughter in the first degree and criminal possession of a weapon in the third degree in New York state court in connection with Tom's killing. On August 13, 2001, Caramelli, who was awaiting sentencing, met with Assistant District Attorney William Dempsey and Detectives Gregg Lesmeister and Anthony Zacarese at the Nassau County District Attorney's Office. There, Caramelli told the Detectives of a conversation he had with the Petitioner, her daughter Marie Cannata, and Marie's husband, Tom, in early April 2000. Caramelli stated that Marie lived with the Petitioner and the Petitioner's boyfriend, Glenn Brockwell, at 30 Forest Avenue in Massapequa in Nassau County. Caramelli said that he was told by the Petitioner, Marie, and Tom that Brockwell abused the Petitioner and that they wanted him out of the house at 30 Forest Avenue. Caramelli stated that, several weeks later, Marie and Tom told him that the Petitioner would pay any amount of money to get somebody to kill her boyfriend, Brockwell. Caramelli then explained that he went away on vacation for approximately ten days.

Upon returning from vacation, Caramelli met up with Marie and Tom. Caramelli was told by Tom that he and Marie took care of the problem they had with Brockwell. According to Caramelli, Marie and Tom explained that, on Friday night April 21, 2000, at 30 Forest Avenue, the Petitioner gave Brockwell some vodka and orange juice with valium to sedate him. Marie and Tom said that they and the Petitioner held Brockwell down on a couch and Joseph Caulfield injected Brockwell with six or seven bags of heroin. Marie and Tom stated that they, along with the Petitioner and Caulfield, carried Brockwell's body into the garage and left him there. Tom and Marie told Caramelli that they, the Petitioner, and Caulfield, later entered the garage and determined that Brockwell was dead. Marie and Tom said they, the Petitioner, and Caulfield, wrapped Brockwell's body in garbage bags, put it in the trunk of a car, drove to the Massapequa Preserve, and buried Brockwell in a shallow grave. Caramelli said Tom later told him that the Petitioner was nervous about the fact that they were only able to bury Brockwell's body in a shallow grave and she wanted to move the body.

A few weeks later, Caramelli said he was riding in Tom's car with Tom and Marie and stopped in the vicinity of the Massapequa Preserve. Caramelli and Tom exited the car, walked into the Massapequa Preserve, and Tom showed Caramelli where Brockwell's body was buried.

On August 13, 2001, Caramelli showed Detective Lesmeister the area in the Massapequa Preserve where Tom had showed him where Brockwell's body was buried. There, Detective Lesmeister observed a large group of broken branches on top of the overturned ground.

On August 22, 2001, at approximately 3:35 P.M. that day, the Petitioner and Caulfield were placed under arrest. The Petitioner was placed in the back seat of a police car with Detective Lesmeister sitting next to her and Detective Aponte driving. Caulfield was placed in a police car with Detectives Mullen and Brzeski.

Later that night, Detective Lesmeister returned to that same area of the Massapequa Preserve with a Suffolk County Police cadaver dog. The cadaver dog went directly to the area of the broken branches that was shown to Detective Lesmeister by Caramelli. Brockwell's remains were then unearthed from the Massapequa Preserve.

2. The Petitioner's Interrogation

While in the car and on the way to Nassau County Police Headquarters, Detective Lesmeister introduced himself to the Petitioner and told her he was investigating the reported disappearance of Brockwell. The Petitioner said she had not seen Brockwell in over a year and she did not know where he was. Detective Lesmeister told the Petitioner that he knew where Brockwell was. The Petitioner asked where and Detective Lesmeister explained that he had just dug him out of the ground. At that point, the Petitioner turned away from Detective Lesmeister and sat quietly for several minutes.

Soon thereafter, Detective Lesmeister asked the Petitioner if her daughter, Marie, was home. The Petitioner replied “yes” and Detective Lesmeister said, “good because I need to talk to her too.” The Petitioner began to cry and asked if there is any way that the detective could leave her daughter out of it. Detective Lesmeister said “no and no matter what you say to me, no matter what happens, I have to talk to your daughter.” The Petitioner began to cry hysterically and begged Detective Lesmeister to leave her daughter out of it. Detective Lesmeister said that “he could make no promises and no matter what you say I have to talk to her.” The Petitioner pleaded, “I will tell you anything you want to know, just leave my daughter out of this.”

Detective Lesmeister read the Petitioner her constitutional rights, and she and Detectives Lesmeister and Aponte signed a “rights card.” The Petitioner then voluntarily waived her right to silence and an attorney and spoke with Detective Lesmeister, who asked her what happened to Brockwell. The Petitioner related that Caulfield gave him a “hot shot.” Detective Lesmeister asked her what she did. The Plaintiff stated that she did not do anything but she was there the night of the killing. The Petitioner stated that she, Marie, Tom, Caulfield, and Tierney O'Rourke were all present.

The detectives and the Petitioner then arrived at Nassau County Police Headquarters. The Petitioner was placed in an interview room inside the Homicide Squad with Detectives Lesmeister and Aponte. At this point, the Petitioner explained to the detectives that for most of the five years she and Brockwell were together, he abused drugs and beat her on a regular basis. The Petitioner stated that, at some point in 1999, she began to date Caulfield and did not tell Brockwell about it. The Petitioner further indicated that she had a few conversations with Marie, Tom, and Caulfield about Caulfield injecting Brockwell with a “hot shot” to kill him. When asked by Detective Lesmeister what a “hot shot” is, the Petitioner responded that she was not sure but believed that it was drugs or poison that would be injected to kill Brockwell.

The Petitioner stated that, on April 21, 2000, while at home, she had an argument with Brockwell, and he began to beat hit her. The Petitioner said she gave Brockwell vodka with orange juice and some pills to relax him, which it did. The Petitioner also stated that she called Caulfield and told him it was a good time to come over. The Petitioner also stated that when Caulfield came to the house, she, Marie, Tom, and Caulfield had a conversation on the second floor that they would go downstairs, hold Brockwell down, and Caulfield would inject him with a “hot shot” to kill him.

The Petitioner stated that Caulfield was concerned that Brockwell, a big guy, would foil their plan to hold him down. She indicated that Caulfield called O'Rourke, who then came to the house. The Petitioner said all of them, including Marie, held Brockwell down on a couch while Caulfield shot him in the right arm with a needle two separate times. She said that Brockwell soon became lethargic, after which Caulfield and Tom moved his body from the couch to the garage and left him there. The Petitioner then stated that, two days later, Caulfield and Tom wrapped Brockwell's body in garbage bags, put the body in the trunk of her car, drove to the Massapequa Preserve, and buried the body.

Detective Lesmeister prepared a written statement reflecting the contents of this confession and read it to the Petitioner, who then read and signed the statement.

Although there is evidence that attorney Justin Lite spoke to the police during the missing person's investigation, those conversations were limited to a discussion of Lite's involvement with the Petitioner in a prior deed transfer and other civil matters. Lite acknowledged that he never told the police not to speak to the Petitioner in his absence. It is undisputed that Lite did not contact the police on the day of the Petitioner's arrest, when she made the written statement.

3. Caulfield's Interrogation

After being placed under arrest, Caulfield asked Detectives Mullen and Brzeski what this was about. Detective Mullen said that he would like to talk to him about Brockwell. Caulfield was placed in a police car and read his constitutional rights. Caulfield said he understood his constitutional rights and then voluntarily...