Cardona v. Goord

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: SPATT
• Citation: Cardona v. Goord, 811 F.Supp.2d 655 (E.D. N.Y. 2011)
• Decision Date: 21 September 2011
• Docket Number: No. 06–cv–3840 (ADS).,06–cv–3840 (ADS).
• Parties: Kenneth CARDONA, Petitioner, v. Glen S. GOORD, Commissioner, Department of Correctional Services for the State of New York, Respondent.

811 F.Supp.2d 655

Kenneth CARDONA, Petitioner,

v.Glen S. GOORD, Commissioner, Department of Correctional Services for the State of New York, Respondent.

No. 06–cv–3840 (ADS).

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

Sept. 21, 2011.

Alan M. Nelson, Esq., Lake Success, NY, for the petitioner.

Thomas J. Spota, District Attorney By Assistant District Attorney Glenn Green, Riverhead, NY, for the respondent.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

The presently incarcerated petitioner Kenneth Cardona brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, on grounds that he was denied his constitutional rights through (1) improper remarks by the prosecutor at his trial during the prosecutor's opening statement, (2) the trial judge's failure to properly instruct the jury concerning accomplice testimony, and (3) a verdict that was unsupported by the evidence at the trial. For the reasons that follow, the Court denies the petition in its entirety.

I. BACKGROUND

A. Factual Background

On December 8, 1999, a man named Donnie Meyer was gruesomely killed by a group of acquaintances in the home of the petitioner Kenneth Cardona, at 112 Willow Avenue, Central Islip, New York. Four men, including Cardona, were ultimately convicted in connection with this killing, and four more men who were present for various parts of the events surrounding Meyer's death provided the state's chief testimony at the trial. The testimony of these four men is not substantially challenged for purposes of this petition, and the Court primarily relies on that testimony for the following discussion of the factual background in this case.

On the morning of December 8, 1999, a man named Arthur Morace, one of the state's central witnesses at the trial, contacted the decedent Donald “Donnie” Meyer to seek his help in obtaining angel dust, an illegal drug. Meyer was acquainted with Morace, and to get the drugs, Meyer turned to another friend, Anthony Torres—also a key state witness—for help. Torres had “connections” to drugs in Manhattan, (Tr. at 2027:21), and agreed with Meyer to meet Morace later in the day to drive to Manhattan.

About 2:30 that afternoon, Meyer and Torres, along with two other friends, drove to meet Morace in a shopping center parking lot located near the Sunrise Highway in western Suffolk County, New York. What Meyer did not know was that Morace's request for angel dust was a ruse orchestrated by one James Argentina, who, like the petitioner, was later convicted of kidnapping Meyer. Argentina had once roomed with Meyer, and believed that Meyer had “snitched” on him to authorities. (Tr. at 1634:7.) On December 8, 1999, Argentina had very recently been released from prison after serving a sentence that he blamed on Meyer, and he sought to confront Meyer about this. Apparently sensing that Meyer would not agree to voluntarily meet him, Argentina asked Morace to make a false request for drugs, and then planned to accompany Morace to meet with Meyer.

Argentina had also coordinated his ruse with three other men who wanted to confront Meyer on a different subject. These three men—the petitioner Cardona, one Najee Player, and one Dowan Myers—believed that Meyer had information about a recent incident in which someone “kicked down the door and started shooting” at Cardona's home at 112 Willow Avenue, Central Islip, New York. (Tr. at 3360:9–10.) Argentina therefore planned that, upon meeting with Meyer, he would bring him to 112 Willow Avenue, where Cardona, Player, and Myers would be waiting for him.

When Meyer and Torres arrived at the shopping center, they found not only Morace, but also Argentina. In the parking lot, “[e]verybody gave hellos and shook hands and [gave] kisses,” (Tr. at 2031:14–15), and although Meyer “look[ed] nervous” (Tr. at 2031:10), he agreed to get into the back seat of Argentina's car. Outside of Meyer's hearing, Argentina now let Torres in on the plan, telling him that they were planning to drive to the home of the petitioner Cardona, who lived nearby. (See Tr. at 2033:18–21.) Morace and Torres then each got into the back seat of Argentina's car, so that Meyer was in the center of the back seat. Argentina sat in the front seat of the car, and a man named Darrin McKiernan—whose involvement in the day's events was limited—drove the car.

The group then left the parking lot. Although Meyer did not yet know that they were headed to Cardona's home, he knew Cardona and was familiar with his address. Thus, as the car approached the street that Cardona lived on, Meyer presumably deduced where the group was headed, and accused Argentina of “set [ting him] up.” (Tr. at 1631:19–20.) Argentina responded that they were “just going to talk.” (Tr. at 1631:20–21.) The party then proceeded to Cardona's home.

Cardona lived in a first floor apartment at 112 Willow Avenue, which was a two-apartment home. Upon arrival at that address, Argentina entered Cardona's apartment, while Torres, Morace, Meyer, and McKiernan remained in the car. After a brief period, Argentina motioned for Torres, Morace, and Meyer to follow him into the house, which they did. McKiernan also exited the car, but did not enter the house.

Inside the apartment waited Meyer's soon-to-be assailants—Argentina, Cardona, Myers, and Player. Also in the apartment was a man named George Rajotte, who lived with Cardona at 112 Willow Avenue. At the trial, Torres, Morace, and Rajotte all described what happened next, and although their accounts diverge on minor details, the general outline is clear.

Almost as soon as Meyer entered the house, Argentina confronted Meyer over having informed on him, and Cardona confronted Meyer over being involved with the alleged shooting. When Meyer denied knowledge of either event, Argentina and Cardona each punched Meyer in the face. Then almost immediately—Rajotte describes it as happening even before anyone attacked Meyer—one or more of Argentina, Cardona, Myers, or Player frisked Meyer for a gun. Finding a pistol in the back of Meyer's pants, they forcibly removed it.

Very shortly after removing the gun from Meyer's person, Najee Player attacked Meyer with a baseball bat. At this point, George Rajotte left the room, retreating to his bedroom. Arthur Morace remained, and testified that he watched Player hit Meyer in the legs with “hard whacks, like he was hitting a baseball,” (Tr. at 1634:16–17), while Dowan Myers held Meyer down. After four or five hits, Morace also left the room and went outside. Of the three witnesses present, only Anthony Torres remained through the whole beating, and he later testified that Player hit Meyer “like three or four times ... like he wanted to hit a home run, hard, from all the way back.” (Tr. at 2041:22–2042:6.) Torres further testified that Cardona also then hit Meyer with the bat multiple times, and that Player and Cardona again hit Meyer with the bat in the kneecaps, while Myers and Argentina held Meyer down. (See Tr. at 2043:9–12.)

Player then retrieved a roll of masking tape, and “taped in a circular formation around [Meyer's] eyes and mouth.” (Tr. at 2044:7–8.) Morace, who at that point came back into the house, described Meyer as having “[h]is hands [ ] taped up and his face [ ] wrapped like a mummy.” (Tr. at 1635:16–18.) Following this restraint, Player then burned Meyer's hair with a cigarette lighter and hit Meyer's left index finger with a hammer. Cardona then instructed Torres to remove Meyer's jewelry and his beeper, because Meyer “would not be needing it anymore.” (Tr. at 2048:16.) Torres complied, and along with taking the beeper and jewelry, he also removed the tape from Meyer. Torres later plead guilty to robbery in connection with taking the jewelry and beeper.

This marked the end of what ultimately was only the first phase of the physical attack on Meyer. Leaving Meyer “bleeding” and “unconscious”, (Tr. at 2049:3–6), all of the other men in the house except for Rajotte—who remained in his room—left the apartment. Outside, there was a discussion of how to keep all involved from revealing what had happened, as well as a discussion of what to do with Meyer. According to Morace, Cardona asked during this conversation whether they should bring Meyer to a hospital, to which Argentina replied, “I don't care, do whatever, get rid of him, bring him to a hospital, I really don't care.” (Tr. at 1637:9–11.)

Ultimately, Cardona resolved the problem of what to do with Meyer. Knowing that Rajotte had been arranging to move into a then-empty apartment in Blue Point, New York, Cardona instructed Myers and Player to get Rajotte, and together to take Meyer to that apartment. Having given this instruction, Cardona, Argentina, Torres, and Morace left the residence in the car driven by McKiernan, who had waited outside during the entire event. Except for Cardona, none of these five returned again that day to 112 Willow Avenue.

Meanwhile, Myers, Player, and Rajotte brought Meyer, who “couldn't walk himself,” (Tr. at 2608:6–7) to a second car, and drove east to Blue Point. Rajotte “had been told to tell [the landlord at the house he was planning to rent] that [Meyer] fell off a motor cycle [sic] and got these injuries and needed a place to recuperate.” (Tr. at 2608:21–24.) However, Rajotte later testified that, upon arriving at the house, he surreptitiously told the landlord that Meyer had been beaten up, and the landlord refused to let the men in the apartment. The four therefore returned to 112 Willow Avenue, where they brought Meyer to a back bedroom in the home.

Once back at 112 Willow Avenue, Rajotte gave Meyer water and Motrin, and then sat down on a couch in the apartment's main room next to Cardona, who had also returned. Cardona then told Rajotte that Meyer “won't be missed by anybody,” and that “[h]e is not going to leave here alive.” (Tr. at 2611:3–4.) Shortly thereafter, a visitor arrived at 112 Willow Avenue, and upon Rajotte's request,...