Fernandez v. Smith, 07 Civ. 6310(DC).

• Decision Date: 05 June 2008
• Docket Number: No. 07 Civ. 6310(DC).,07 Civ. 6310(DC).
• Citation: 558 F.Supp.2d 480
• Parties: Christopher FERNANDEZ, Petitioner, v. Joseph SMITH et ano, Respondents.
• Court: U.S. District Court — Southern District of New York

558 F.Supp.2d 480

Christopher FERNANDEZ, Petitioner, v. Joseph SMITH et ano, Respondents.

No. 07 Civ. 6310(DC).

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

June 5, 2008.

COPYRIGHT MATERIAL OMITTED

Epstein & Weil, by Lloyd Epstein, Esq., New York, NY, for Petitioner.

Robert T. Johnson, Esq., District Attorney, Bronx County, by Christopher Blira-Koessler, Esq., Assistant District Attorney, Bronx, NY, for Respondents.

OPINION

CHIN, District Judge.

In the early hours of June 30, 2001, petitioner Christopher Fernandez's cousin was involved in a confrontation with a group of young men. Fernandez arrived on the scene in a car, and the members of the group ran off. The cousin got into the vehicle, and Fernandez and his cousin saw one of the young men, Anthony Santiago, in the street. They drove after him. The cousin jumped out and started attacking him. Within moments, Fernandez joined the attack, and he hit Santiago in the head four or five times with an object, apparently a flashlight. Santiago died later that morning as a result of the injuries.

Following a jury trial in the Supreme Court of New York, Bronx County, Fernandez was acquitted on September 23, 2003 of intentional murder, but convicted of depraved indifference murder in violation of New York Penal Law § 125.25(2). He was sentenced to a term of imprisonment of nineteen years to life.

On July 5, 2006, while Fernandez's case was on direct appeal and before his conviction became final, the New York Court of Appeals decided People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (2006). In Feingold, the court fundamentally altered the definition of "depraved indifference," explicitly overruling its earlier decision in People v. Register, 60 N.Y.2d 270, 469 N.Y.S.2d 599, 457 N.E.2d 704 (1983), cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544 (1984), which for many years was the leading New York case interpreting the depraved indifference murder statute. Under the Feingold definition, Fernandez could not have committed depraved indifference murder as a matter of law, as he acted intentionally — not indifferently — when he attacked Santiago. Nonetheless, Fernandez's appeal was rejected on September 28, 2006, when the Court of Appeals denied his application for leave to appeal, some three months after it had decided Feingold.

Fernandez petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contests his conviction on the ground that the evidence introduced at trial was legally insufficient to support the depraved indifference murder conviction in light of Feingold. I agree. For the reasons set forth more fully below, Fernandez's conviction for depraved indifference murder cannot stand, and, accordingly, his petition is granted.

BACKGROUND

A. The Facts

On June 30, 2001, Angel Martinez ("Angel"), Fernandez's cousin, got into a "commotion in the street" with Anthony Santiago and several other youths. (Trial Tr. at 32-33, 298-99). They threw "fists" at each other. (Id. at 299).

Fernandez and another cousin, Carlos Fernandez ("Carlos"), pulled up in their car and saw that Angel was in the middle of a fight. (Id. at 32, 299). Carlos testified that:

I saw about three or four youths, at least they looked like they were swinging, at least one of them were swinging at Angel and they were in the middle of the street ... and Angel looked like he had been hit.

(Id. at 32). Carlos testified that Angel's chest was "like red" and that "he looked like he had scratches on him." (Id.). Angel also looked "really scared, really scared." (Id. at 33).

Fernandez, who was driving, yelled at Angel to get in the car; Angel did so, and "the kids ran off." (Id. at 33-34). Angel was "visibly upset." (Id. at 35). Fernandez, Carlos, and Angel then saw Santiago on the street, and Fernandez "drove off after him. (Id. at 35). Santiago threw a plastic soda bottle at the vehicle. (Id. at 35-36). Fernandez slowed the car down, and Angel jumped out. (Id. at 40). Angel caught up to Santiago and hit him, and Santiago "went down pretty fast." (Id.). Fernandez then got out of the car and walked over, initially trying to hold Angel back. (Id. at 42). Then Fernandez started hitting Santiago as well, striking him in the head with an object, apparently a flashlight, four or five times. (Id. at 42-43, 155-56, 160). Fernandez, Angel, and Carlos then got back into the vehicle and drove off, leaving Santiago lying on the ground in the middle of the intersection. (Id. at 45, 156).

A bystander called the police. She walked over to Santiago, who rolled over onto his back, bleeding. (Id. at 156-57). She stood over him, in the intersection, to make sure that no cars hit him, and waited for the police to come. (Id. at 157).

The police arrived on the scene at approximately 3:20 a.m. and found Santiago lying on his back, with an apparent head wound and cuts and abrasions on his face. (Id. at 96). Santiago appeared to be intoxicated, as his eyes were glassy and he had the smell of alcohol on his breath. (Id. at 97). Emergency medical services arrived, treated Santiago, and took him to Lincoln Hospital in the Bronx. (Id. at 99-100). When he arrived, he was alert and oriented (id. at 610-11), but exhibited signs of intoxication (id. at 612). He was intoxicated, as his blood alcohol level exceeded the legal level of intoxication in New York. (Id. at 594, 612). Because the symptoms associated with intoxication are similar to those associated with Santiago's head injuries, he may not have received proper treatment. (Id. at 578, 609-12). His condition deteriorated, and he died as a result of the internal bleeding caused by the blows to his head. (Id. at 574). He was pronounced dead at 5:55 a.m. on June 30, 2001. (Id. at 555).

B. Prior Proceedings

1. The Trial Court

a. The Indictment

Fernandez and Angel were indicted in the Supreme Court of the State of New York, Bronx County, on November 16, 2001 for manslaughter in the first and second degrees. (Blira-Koessler Aff. ¶ 5). On May 13, 2002, they were further indicted for two counts of murder in the second degree, after additional evidence was presented to a second grand jury. (Id.). See N.Y. Penal Law §§ 125.25(1) (intentional murder), 125.25(2) (depraved indifference murder) (McKinney 2008).

b. The Trial

Trial commenced on September 10, 2003, before Justice Joseph Fisch and a jury. (Trial Tr. at 1). In its opening statement, the prosecution declared that "[t]he People will prove to you [that defendants] intended to cause [Santiago's] death and they did cause his death by literally beating the life out of him." (Id. at 12). The prosecution described what it expected the evidence to prove:

[Y]ou will hear that before that car even came to a stop, Angel Martinez was out of that car and struck Anthony Santiago hard enough that that one hit knocked Anthony Santiago to the ground, and you will hear he never got up again at that intersection. And while he was lying on the ground, Angel Martinez proceeded to strike him, to kick him, to stomp him, and then Christopher Fernandez got out of that vehicle and he took it up a notch. This wasn't just a two on one fight. He decided to use some type of instrument. You will hear that he repeatedly struck Anthony Santiago in the head with a billy club, a flashlight, a bat, some type of dark, cylindrical instrument, and he hit him in the head again and again....

(Id. at 15). The prosecution concluded its opening statement by asserting that the jury could reach "only one conclusion based on [the] evidence and that is that [defendants] intended the natural consequences of their actions and their actions took the life of a young man." (Id. at 16). The prosecution made no mention of the depraved indifference charge and made no effort to argue facts to support the alternative theory or to even suggest that there was an alternative basis — depraved indifference — for the jury to consider. (See id. at 12-16).

Immediately after the opening statements, Fernandez's counsel stated that he wanted to make an application. Before he could explain, however, the court cut him off, saying: "Later. Sit down." (Id. at 24). After the first witness was sworn in, the court permitted counsel to approach for an off-the-record sidebar conference. (Id. at 25).

At the lunch break, outside of the presence of the jury, the court permitted Fernandez's counsel to make his application. Counsel moved to dismiss the depraved indifference murder count, contending that the prosecution had failed to address the depraved indifference count in its opening statement. (Id. at 84-85). The court denied the motion. (Id. at 85).

The trial proceeded. The prosecution rested on September 18, 2003. (Id. at 547, 627). The defense noted, without objection from the prosecution and with the court's acquiescence, that it was "deferring motions to a further time." (Id. at 627). The defense rested after a brief defense case. (Id. at 659).

After dismissing the jurors for the day, the court announced: "We'll have our presummation conference inside and then we'll go back on the record." (Id. at 661). The transcript shows that the court then took a recess. (Id.). The transcript indicates that immediately after the recess, the court summarized for the record what had been said off the record in the robing room:

THE COURT: We're in the robing room outside the presence of the jury.

The defense made motions at the conclusion of the People's case for trial order of dismissal, which the Court denied.

Defense made motions at the conclusion of the entire case to dismiss the counts of the indictment, which the Court likewise denied.

(Id. at 661-62). The court made no effort to describe the grounds for the defense motions. (Id.).¹

c. The Charge

Following the lawyers' summations (id. at 678-768), the court charged the jury on September 22, 2003 (id. at 770-807). The jury was presented with four counts: the two counts of murder ...