Castano v. Cowen

• Decision Date: 27 December 2019
• Docket Number: Civil Action No. 18-12488-RGS
• Parties: FRANKLIN CASTANO, Petitioner, v. BRAD COWEN, Respondent.
• Court: U.S. District Court — District of Massachusetts

FRANKLIN CASTANO, Petitioner, v. BRAD COWEN, Respondent.

Civil Action No. 18-12488-RGS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

December 27, 2019

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

Boal, M.J.

On December 3, 2018, pro se petitioner Franklin Castano filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Docket No. 1. For the following reasons, this Court recommends¹ that the District Judge assigned to this case deny the Petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Criminal Case

On September 23, 2015, an Essex Superior Court jury convicted Castano of murder in the first degree on a theory of deliberate premeditation in violation of M.G.L. c. 265, § 1, and unlawful possession of a firearm in violation of M.G.L. c. 269, § 10(h). Supplemental Answer ("SA") 79. The trial judge sentenced Castano to the mandatory term of imprisonment for life without parole on the murder conviction, and two years in a house of correction on the firearmconviction. SA 79-80.

Castano timely appealed. SA 79. On October 6, 2017, the Massachusetts Supreme Judicial Court ("SJC") affirmed Castano's convictions. Commonwealth v. Castano, 478 Mass. 75 (2017).

B. The Facts Underlying Castano's Conviction

The following recitation of the facts by the SJC is presumed to be correct. See 28 U.S.C. § 2254(e)(1); Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir. 2002):

Background. On the morning of February 20, 2014, the defendant, accompanied by two friends, walked into the Lynn police station. One of the friends, Alvaro Garcia, informed police that the defendant's girl friend was dead and that the defendant had killed her. The defendant was placed under arrest, and police responded to the Peabody apartment that the defendant shared with his girl friend. There, they found her dead with a gunshot wound to the head. Two spent casings were found nearby, but no firearm was observed or recovered.

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1. The motion to suppress. The motion judge found the following facts, which are not in dispute. The defendant, who is not fluent in English, was booked at the Lynn police station with the assistance of Officer Francisco Gomez, who is bilingual. Throughout the course of the day, Gomez administered Miranda rights to the defendant, in Spanish, at least four times, including at the Lynn police station and at the Peabody police station. Soon after the first provision of Miranda rights, the defendant invoked his right to counsel.

The questioning did not immediately cease. The defendant was subjected to two sets of questions at the Peabody police station without ever having the opportunity to speak to a lawyer. Both sets of postinvocation questions concerned the disposal of the firearm that police, at that time, believed the defendant had used to kill the victim.

The first set of questions came from Peabody police Officer Mark Saia, who asked the defendant where "the gun" was. The defendant replied that the threw it out of his motor vehicle window near the apartment complex where the killing occurred. Saia told the defendant that it was important to locate the gun because of that area's proximity to places where children might be present. The officer asked the defendant for more detail about where he haddisposed of the gun. The defendant said he had turned to the left out of the apartment complex and threw the weapon out the vehicle window near a dry cleaner. Saia communicated that information to other officers at the scene. They did not find the gun.

The second set of questions came from Peabody police Detective Stephanie Lane. Lane had responded to the apartment complex on the morning of the events in question. She was familiar with the area described by the defendant. She was aware that both a church (with a school and day care facility) and a preschool were located nearby. She also was aware that the apartment complex itself was home to a number of children. Lane further knew that police had not recovered the weapon from the apartment or from their subsequent search of its environs.

When Lane returned to the station, she spoke to the defendant in the holding cell area and essentially repeated the questions asked by Saia. The defendant provided the same information and described the firearm as silver in color. Lane asked if the defendant would be willing to accompany her and other officers to help find the firearm. He agreed to cooperate. Police placed the defendant in the back of a cruiser and drove to the area adjacent to the apartment complex. The defendant pointed out the direction in which he had thrown the firearm. Still, police never recovered the weapon.

The motion judge ruled that the defendant's responses to these two set of inquiries were admissible at trial under the public safety exception to the Miranda exclusionary rule, as first established in New York v. Quarles, 467 U.S. 649, 655-656, 104 S. Ct. 2626, 81 L.Ed.2d 550 (1984). He concluded that (1) the Quarles exception extends to postinvocation questioning and (2) it applied here because officers had an objectively reasonable need to protect the public from danger when they asked the defendant about the location of the gun.

2. The evidence at trial. We summarize the facts at trial as the jury could have found them.

a. Communication with Garcia. Garcia, a friend of the defendant for several years, testified about communication he had had with the defendant on the night of the killing and the morning after. Garcia also knew the victim, having nicknamed her "Explosive" because she was "the kind of person you [could] meet and connect [with] right away" and "[a]lways happy."

On the night of February 19, 2014, Garcia was working at his job for a cleaning company. Around 10:30 P.M., the defendant began posting comments directed at Garcia on a social networking Web site, one of which struck Garcia as unusual. As a result, Garcia telephoned the defendant, who said only that he would call Garcia later. About an hour later, the defendantcalled Garcia and asked him to come by the defendant's apartment because the defendant needed to talk to him. The defendant sounded "weird" and "nervous." Garcia tentatively agreed to come by the apartment, or at least call the defendant, when his shift ended at 2 A.M. on February 20.

The defendant subsequently sent Garcia another message, through the messaging application WhatsApp, asking if he had finished his shift yet. Garcia asked why the defendant wanted him to come by the apartment. The defendant replied that he had "problems" or "a thing on [his] hands." The defendant also sent an emoji² of a face with X's for eyes,³ and the word "Explosive." At that point, Garcia knew that "something was happening," and he told the defendant that he would call the defendant after work.

Garcia sent the defendant a text message when he was leaving work around 2 A.M., and again when he reached his home around 2:30 A.M., but the defendant did not respond to either. Garcia did not hear from the defendant again until around 7 A.M., when the defendant called on the telephone while Garcia was working at his second job. The defendant again told Garcia that he had "problems"—"something serious" or "something big"—and that he wanted Garcia to come by his apartment. At this point, the defendant sounded "desperate."

Garcia left work and went to the defendant's apartment in Peabody. When he arrived, the defendant opened the door to let Garcia in, turned, and said, "I'm fucked." Garcia asked what happened, and the defendant said, "Explosive is dead." The defendant told Garcia that the victim was "in the other room," but he did not explain what happened before Garcia got scared and decided to leave.

Garcia returned to his home in Lynn and spoke with his wife; they agreed to go to the Lynn police station. At that point, the defendant telephoned Garcia and said that he was on his way to Garcia's house. Garcia and hiswife waited in the vehicle for the defendant to arrive, planning to accompany him to the police station.

When the defendant arrived, he leaned in the driver's side window of Garcia's vehicle. Garcia's wife asked the defendant what had happened. The defendant explained that he was counting money at a table, upon which there was a gun. According to the defendant, the victim grabbed the gun and said, "I don't know why you have this in here." The victim then "dropped" the gun back onto the table. It fell off the table, and the defendant "grabbed" it. After grabbing the gun, the defendant said something along the lines of "leave me alone, asshole" and swung his arm backward. The defendant said the motion caused him to shoot the victim, and then he got scared and a second shot fired into the wall. The defendant told Garcia it was an accident and he wanted to "do the right thing" and surrender himself to police.

b. Defendant's statements to police. The testimony at trial regarding the defendant's statements to police was essentially consistent with the testimony at the suppression hearing, discussed above. Officer Gomez and Detective Lane testified that the defendant told them that he "threw [the gun] out of the car" at some point after the incident. Both Officer Saia and Detective Lane described police efforts to locate the gun based on information given to them by the defendant.

c. Physical evidence. Although police never recovered the weapon, the Commonwealth presented other pieces of physical evidence linking the defendant to the crime. When police entered the apartment, it appeared relatively clean and undisturbed, other than a small lamp near the victim's feet that had been knocked over and a suitcase on the floor of the room where the victim was found.

Photographs of the inside of the apartment showed that police discovered the victim lying face-down on a small couch, with a sweatshirt covering her head. Blood had pooled in the corner of the couch next to the victim's head and on the floor nearby. Police found one

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