Fox v. Martuscello
| Decision Date | 30 September 2019 |
| Docket Number | 16-CV-5416 (CBA) |
| Parties | JOHN FOX Petitioner, v. DANIEL MARTUSCELLO, JR., Superintendent, Coxsackie Correctional Facility Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
John Fox petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to vacate his New York state conviction, following a jury trial, for manslaughter in the second degree as a hate crime, attempted robbery in the first degree as a hate crime, and attempted robbery in the second degree as a hate crime, on the following eight grounds: (1) denial of his constitutional right to be present; (2) denial of his constitutional right to atrial by jury; (3) denial of his constitutional right to present evidence; (4) denial of his constitutional right to the effective assistance of counsel; (5) his statements to the police were the product of a custodial interrogation in the absence of probable cause; (6) the prosecution did not establish beyond a reasonable doubt the voluntariness of his statements; (7) the evidence did not establish beyond a reasonable doubt that he committed a "hate crime" as defined by New York law; and (8) the cumulative effect of constitutional error denied him a fair trial. (See D.E. # 1 ("Pet.") at 6-15.) For the reasons set forth below, Fox's petition is denied.
The events leading up to the commission of Fox's crimes are, for the most part, not in dispute. In the early evening of October 8, 2006, Fox and his friends Anthony Fortunato and Gary Timmins were in the living room of Fortunato's home discussing how they could obtain marijuana. (D.E. # 8 ( )1 ¶ 46; D.E. # 10 ("Pet'r Reply") at 2.) Fortunato proposed that they attempt to meet a gay man. (Id.) He explained that in the past, he had used a scheme by which he would arrange to meet a gay man in a hotel room and, while the man was in the bathroom, he would take his clothes and money. (Id.) At Fortunato's request, Fox entered his screen name on Fortunato's computer, and Fortunato went to a gay chat room. (Resp. Aff. ¶ 47; Pet'r Reply at 2.) There, Fortunato—using Fox's screen name—began communicating with a man named Michael Sandy. (Resp. Aff. ¶ 47.) Sandy and Fortunato (posing as Fox) discussed having sexual relations and pooling their money to buy marijuana, and they arranged to meet. (Id.) While Fortunato communicated with Sandy using Fox's screen name, Fox drank beer on the couch. (Id.) Fox, Fortunato, and Timmins then left Fortunato's home and walked to Coyle Street in Brooklyn. (Id. ¶ 48.) Ilya Shurov—an acquaintance of Timmins—joined them. (Id.) Sandy was in his car on Coyle Street, and Fox and Fortunato went over to speak to him, but Sandy became nervous and left. (Id.)
Fortunato, Fox, Timmins, and Shurov then returned to Fortunato's home. (Id. ¶¶ 48-49; Pet'r Reply at 2.) Fortunato—again using Fox's screen name and posing as Fox—had another instant message conversation with Sandy during which Sandy agreed to meet with Fox. (Resp. Aff. ¶¶ 49-50; Pet'r Reply at 2.) Fortunato, Fox, Timmins, and Shurov discussed how to proceed. (Resp. Aff. ¶ 51; Pet'r Reply at 2-3.) They planned that Fox would meet Sandy and drive with him to Plumb Beach in Brooklyn. (Resp. Aff. ¶¶ 50-51; Pet'r Reply at 2-3.) They planned to take marijuana or money from Sandy, but they agreed that there would be no violence. (Id. at ¶52; Pet'r Reply at 2-3.) While they were at Fortunato's home, Fox drank more beers, "[m]aybe two or three." (Resp. Aff. ¶ 51.)
Pursuant to the plan, Fox went to meet Sandy at Coyle Street. (Resp. Aff. ¶ 54; Pet'r Reply at 2-3.) Fortunato, Shurov, and Timmins waited at the beach until Fox and Sandy arrived. (Resp. Aff. ¶¶ 55-56; Pet'r Reply at 2-3.) At that point, Shurov ran over to Sandy and punched him, which had not been part of the plan. (Resp. Aff. ¶ 56 & n.16; Pet'r Reply at 2-3.) Sandy ran away, toward the Belt Parkway, with Shurov and Fox in pursuit. (Resp. Aff. ¶ 56; Pet'r Reply at 3.) There is conflicting evidence about what Fox did once he was at the Belt Parkway, but it is undisputed that he was there and that Sandy was struck by a car on the Parkway. (Resp. Aff. ¶¶ 56, 58-59; Pet'r Reply at 3.) Sandy later died in the hospital. (Resp. Aff. ¶ 81; Pet'r Reply at 3.)
On October 10, 2006, at about 2:00 a.m., four detectives—Detectives Byrne, Cennamo, Habert, and Hopkins—arrived at SUNY Maritime, where Fox was a student, to speak to him. (Resp. Aff. ¶¶ 8-10.) At least six officers from the Hate Crimes Task Force, including Detective D'Angelo, were already on campus when the detectives arrived. (Resp. Aff. ¶ 10.) Pursuant to a plan arranged with police, a security guard at SUNY Maritime knocked on the door of Fox's room and claimed, falsely, that there was a report of a smoke alarm going off. (Id.)
The parties dispute much of what happened thereafter. As relevant for purposes of this Memorandum and Order, according to Respondent, the security officer entered Fox's room and asked him what his name was, to which Fox answered truthfully. (Id. ¶ 10.) Detective Byrne introduced himself, stating that he worked for "Brooklyn South Homicide," and asked if he could "come in and speak to" Fox. (Id. ¶ 11.) Fox agreed, and Detectives Byrne and Cennamo then entered the room. (Id.) Detective Byrne asked Fox if he would mind accompanying them to the 61st Precinct in Sheepshead Bay to speak with them further, and Fox agreed. (Id.) Fox left hisdormitory room with the detectives and proceeded to the parking lot, where there were several officers from the Hate Crimes Task Force present. (Id. ¶ 12.) Fox got into a car with Detectives Byrne, Cennamo, D'Angelo, and Hopkins—two sat in the backseat with him—and was driven to the precinct. (Id.) No one questioned Fox about the incident during the drive. (Id.) Fox was then brought to an interview room, where he was momentarily left by himself, with the door to the room open. (Id. ¶ 13.) Detectives Byrne, Cennamo, and D'Angelo entered the room, sat on the opposite side of a table as Fox, and began interviewing him. (Id. ¶ 13.) He was not initially advised of his Miranda rights. (Id.) After an initial period of questioning, Fox made a statement about the events surrounding Sandy's death, which Detective Byrne pointed out contradicted an earlier statement he had made, and Fox became "extremely nervous." (Id. ¶¶ 13-15.) At that point, Detective Byrne stopped the interview and advised Fox of his Miranda rights. (Id. ¶ 15.) After being advised of his rights, Fox agreed to continue speaking to detectives. (Id.) He made multiple statements to the detectives and to Assistant District Attorney Anna-Sigga Nicolazzi about his involvement in the events surrounding Sandy's death, including one videotaped statement. (Id. ¶¶ 18-23.) According to Fox's version of events, he was not read Miranda warnings and the detectives were "intimidating and yelling at him for a long period of time" before he made any incriminating statements. (Pet. at 14.)
Fox was thereafter indicted in Kings County, New York, for, among other crimes, one count each of second-degree murder as a hate crime (N.Y. Penal Law §§ 125.25(3), 485.05(1)(a)), second-degree murder (N.Y. Penal Law § 125.25(3)), second-degree manslaughter as a hate crime (N.Y. Penal Law §§ 125.15(1), 485.05(1)(a)), second-degree manslaughter (N.Y. Penal Law § 125.15(1)), attempted robbery in the first and second degrees as hate crimes (N.Y. Penal Law §§110.00/160.15(1), 110.00/160.10(1), 485.05(1)(a)), and attempted robbery in the first and second degrees (N.Y. Penal Law §§ 110.00/160.15(1), 110.00/160.10(1)). (Id. at ¶ 5.)
Before trial, Fox and his co-defendants Shurov and Fortunato moved to dismiss the counts in the indictment alleging a hate crime, in part on the ground that there was no grand jury evidence of hatred, bias, or prejudice against the victim.2 (D.E. # 13 ( ) at ¶ 2.)3 On August 2, 2007, the Supreme Court of the State of New York denied the motion in a written opinion. People v. Fox, 844 N.Y.S.2d 627 (Sup. Ct. 2007).
Fox also moved to suppress his statements to law enforcement; the hearing court denied his motion. (D.E. # 8-2 at 271, 300.)4 Fox's statement to law enforcement implicated co-defendant Fortunato and, if placed in evidence before the jury trying Fortunato, would violate his Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968). Fortunato moved to sever his case from Fox's, (Resp. Aff. ¶ 84), but rather than sever the cases to address the Bruton problem, the court instead directed that two juries be selected—one for Fortunato and one for Fox—and Fortunato's jury could be removed from the courtroom when evidence of Fox's statements to law enforcement was presented by the prosecutor. (Resp. Aff. ¶¶ 84-87.)
At the criminal trial, two juries were selected, one for Fortunato and one for Fox. (See, e.g., Tr. 59-60 ().)5 As had been previously decided, Fortunato's jury was not present when Fox's statements to law enforcement were presented by the prosecutor, so as to protect Fortunato's Sixth Amendment confrontation rights as articulated in Bruton. (See id. at 845-931.)
In addition to using the dual-jury structure to deal with the Bruton problem with respect to Fox's statements, the trial court organized the trial such that other evidence that was relevant or admissible against one defendant but not the other was presented only in front of the defendant's jury against whom it was admissible, to avoid resort to limiting instructions. (See, e.g., id. at 60 (...
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