Fong v. Ryan
| Decision Date | 05 August 2011 |
| Docket Number | No. CV 04-68-TUC-DCB,CV 04-68-TUC-DCB |
| Parties | Martin Soto Fong, Petitioner, v. Charles Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Petitioner Martin Fong's Petition for Writ of Habeas Corpus, which has been amended twice, corrected, and supplemented. (Docs. 1, 43, 92, 94, 229.)1 For the reasons set forth herein, the Court concludes that Petitioner is not entitled to habeas corpus relief.
In 1993, Petitioner was convicted by a jury of three counts of first degree murder, robbery, attempted armed robbery, aggravated robbery, and attempted aggravated robbery arising from a triple homicide at the El Grande Market in Tucson. In a subsequent trial, a separate jury convicted Petitioner's co-defendants, Christopher McCrimmon and Andre Minnitt, of similar charges.
Petitioner and his co-defendants each were sentenced to death for the murders and to prison terms for the other offenses. On appeal, the Arizona Supreme Court affirmed Petitioner's convictions and sentences, State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996), cert. denied, 520 U.S. 1231 (1997), but reversed the convictions of McCrimmon and Minnitt and remanded for new trials on the ground of juror coercion, State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298 (1996).2 Thereafter, Petitioner filed a petition for postconviction relief (PCR) pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Following an evidentiary hearing, the trial court denied relief. The Arizona Supreme Court summarily denied a petition for review.
In 2004, Petitioner initiated the instant federal habeas corpus proceeding, and the Court stayed his execution and appointed counsel. Two months after counsel filed an amended petition, the Supreme Court ruled in Roper v. Simmons, 543 U.S. 551 (2005), that the Eighth Amendment prohibits the execution of juvenile offenders. Because it was undisputed that Petitioner was 17 years old at the time of the offenses, the Court stayed this proceeding to enable him to return to state court to seek relief from his capital sentence based on Roper and to exhaust new claims raised in the amended petition relating to actual innocence and a Vienna Convention violation. (Doc. 55.)
In 2006, the Pima County Superior Court vacated Petitioner's capital sentences, resentenced him to three consecutive terms of 25 years to life for the murder convictions, and denied relief on the remaining postconviction claims. Petitioner appealed his new sentence and sought discretionary review of the denial of his second PCR petition. In May 2007, the Arizona Court of Appeals issued a consolidated ruling denying Petitioner's appellate and PCR claims. Thereafter, the Arizona Supreme Court summarily denied review.
In October 2008, this Court lifted its stay and permitted one of Petitioner's appointed counsel to continue representation. (Doc. 80.) A second amended petition and responsivebriefs followed. In October 2010, following completion of a third state PCR petition, the Court authorized Petitioner to supplement his habeas petition with additional newly exhausted claims. Respondents then filed a supplemental response to the new claims, and Petitioner filed a reply.
At 10:15 p.m. on June 24, 1992, police were dispatched to the El Grande Market in response to a 911 call. There, they found the bodies of Fred Gee, Ray Arriola, and Zewan Huang, all employees of the market.3 Gee had been shot in the head and torso with a .25 caliber handgun. Arriola and Huang had been shot in the head with a .38 caliber weapon and in the torso with a .25 caliber weapon.
Shortly thereafter, police found an abandoned car that was parked out of place several blocks from the market. Tire tracks indicated an abrupt stop, and the engine was still warm. Christopher McCrimmon's fingerprint was found on the driver's side window. The car belonged to David Durbin, who had lent it to his girlfriend, Queen E. Ray. The morning after the shootings Ray initially told Durbin it had been impounded for unpaid parking tickets. She told the lead homicide investigator, Tucson Police Detective Joseph Godoy, that she had driven a friend to some apartments, experienced mechanical problems, and abandoned the car. Months later, on the eve of a preliminary hearing for McCrimmon and Andre Minnitt, Godoy confronted Ray about the truthfulness of her statement and told her she would be charged with perjury if she lied on the witness stand. At the hearing, Ray testified that on the night of the market shooting, she had loaned McCrimmon the car in return for money. She said that McCrimmon, Minnitt, and a third person, whom she knew as Martinez, left McCrimmon's apartment with the car around 10:00 p.m. and that about an hour later thethree returned without the car. McCrimmon gave Ray $30 and the car keys. During trial, Ray, who had seen pictures of Petitioner on television following his arrest, identified Petitioner as "Martinez."
At the time of the murders, the market was in the process of closing. Two registers had been cleared, leaving only one open. The body of the manager, Fred Gee, was found at the open register at the liquor counter. The register had a $1.69 sale rung up on it, and nearby on the counter were produce bags containing a cucumber and three lemons. Petitioner's fingerprints were found on each bag. On the floor near Gee's body were two crumpled $1 food stamps, not yet stamped with the market's name. Petitioner's fingerprints were also found on one of these food stamps. At least $175.52 was missing from the store. Testimony at trial indicated that Gee routinely permitted known customers through the iron security gate after the store's 9:00 closing time.
The investigation took a significant turn on August 31, 1992, when Detective Godoy received a tip from an anonymous caller and obtained information from a confidential informant working with Gang Unit Sergeant Zimmerling. From these sources, Godoy gleaned the name "Martin Soto," along with that of Christopher McCrimmon. A background check revealed that Soto and Fong were the same person. Godoy also learned from the Gee Family that Martin Fong was a former market employee.
Around this same time, Tucson Police Detective Fuller began investigating an August 26, 1992, robbery and non-fatal shooting at Mariano's Pizza. McCrimmon became a potential suspect after forensic evidence linked him to the crime scene. Fuller discovered that Minnitt also may have been involved in the robbery and relayed this information to Godoy on September 1. At that point, McCrimmon was already a suspect for the market murders. With the additional information connecting McCrimmon and Minnitt, Godoy considered Minnitt a possible suspect. Moreover, according to Fuller, McCrimmon and Martin Soto Fong were close friends. On September 2, McCrimmon and Minnitt were arrested for the pizzeria robbery and in the days that followed Godoy tried to locatePetitioner.
Also in late August, Keith Woods, a close friend of McCrimmon's, was released from prison. On August 30, Tucson police arrested him on drug charges. Because Woods was already a three-time felon, and possessing drugs was a parole violation subjecting him to a possible twenty-five year prison sentence, he agreed to become an informant in exchange for release and dismissal of the drug charges. On September 8, following an initial 30 to 45-minute untaped conversation, Godoy created a ruse to move Woods into a wired room. While being surreptitiously recorded, Woods told Godoy that on the day he was released from prison McCrimmon and Minnitt told him they committed the El Grande murders along with a third person, Cha-Chi, a Mexican guy, who had worked at the market and set up the robbery. Woods also said they told him Cha-Chi went into the store by himself "masked down or whatever," someone rebelled, and Cha-Chi shot them with a .25 caliber gun. (Doc. 45, Ex. 43 at 5.) McCrimmon and Minnitt then ran in, and the latter shot two of the victims after they were already down. Woods initially denied ever meeting or knowing Cha-Chi but in a later statement to Godoy on November 20 Woods said Cha-Chi was a guy named Martin, who was Betty Christopher's boyfriend. There was no dispute at trial that Petitioner was Betty Christopher's boyfriend.
Using an outstanding juvenile runaway complaint filed by Petitioner's mother, police finally found, arrested, and fingerprinted Petitioner on September 9, the day after Woods made his initial statement. In response to questioning, Petitioner denied any involvement in the crime, claiming that he had last been in the store about two weeks before the murders to buy beer. The next day, Godoy learned of Petitioner's fingerprint match to items found at the crime scene, and Petitioner was re-arrested.
Petitioner's trial took place before that of his co-defendants. The prosecution theorized that Fong was recognized by market employees, permitted to enter the store during closing, filled plastic bags with lemons and a cucumber, and paid Gee at the liquor counter register with two $1 food stamps before the shooting began. The defense theory was one ofmistaken identity: Petitioner claimed Cha-Chi was Martin Garza, another acquaintance of McCrimmon's. The defense also maintained that investigators improperly handled the forensic evidence, making the fingerprints inherently unreliable. Further, the defense called Keith Woods as a witness to support the theory that Detective Godoy improperly coerced both Woods and Ray to implicate Fong.
After their convictions were reversed due to juror coercion, the trial court severed the retrials of McCrimmon and Minnitt. Minnitt's initial retrial resulted in a hung jury. See State v. Minnitt, 203 Ariz. 431, 433, 55 P.3d 774, 777 (2002). He was tried again in 1999, found guilty of all charges, and resentenced to death for...
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