Haywood v. Portuando, 02 Civ. 890 JSR GWG.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation288 F.Supp.2d 446
Docket NumberNo. 02 Civ. 890 JSR GWG.,02 Civ. 890 JSR GWG.
PartiesWayne HAYWOOD, Petitioner, v. Leonard PORTUANDO, Superintendent, Shawangunk Correctional Facility, Respondent.
Decision Date19 September 2003

Joseph M. Nursey, Office of the Appellate Defender, New York City, for petitioner.

Christopher John Blira-Koessler, Office of the District Attorney, Bronx County, Bronx, NY, for respondent.


RAKOFF, District Judge.

On March 21, 2003, the Honorable Gabriel W. Gorenstein, United States Magistrate Judge, issued a Report and Recommendation in the above-captioned matter recommending that petitioner's motion under 28 U.S.C. § 2254 for a writ of habeas corpus be denied and that his petition be dismissed. Both petitioner and the State of New York timely filed objections to the Report and Recommendation.

Having reviewed the record and the issues de novo, and having considered the objections, the Court hereby adopts the Report and Recommendation, but with the following clarification: On page 18 of the Report and Recommendation, Judge Gorenstein states that "[t]he record does not reflect that any of the other unstruck venirepersons up to that point had been the victim of a violent crime or had a close relative who had been the victim of a violent crime." In fact, however, it appears that the sidebars during voir dire questioning of prospective jurors were not recorded. See Letter dated March 28, 2003 from Assistant District Attorney Christopher John Blira-Koessler, at 2. Accordingly, while it may be true that, as a technical matter, the record does not reflect the identified facts, that is because there is no such record.

In all other respects, the Court agrees with the Magistrate Judge's Report and Recommendation and, for the reasons stated therein, dismisses the petition. Clerk to enter judgment.



GORENSTEIN, United States Magistrate Judge.

Wayne Haywood, currently in the custody of Shawangunk Correctional Facility, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Haywood was convicted in New York State Supreme Court, Bronx County, of Murder in the Second Degree and Conspiracy in the Second Degree (New York Penal Law §§ 125.25(1) and 105.15, respectively). For the following reasons, the petition should be denied.


On January 6, 1994, Haywood was arrested in connection with the December 14, 1993 murder of Lillian DeJesus in the Bronx. (O'Toole: H. 59, 67-68; Marrero: H. 327, 335).1

A. Pre-Trial Suppression Hearing

The trial court conducted a Huntley hearing, see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), that began on October 20, 1995 and continued through October 30, 1995. At the hearing, the court received testimony from Sergeant William O'Toole, Detective James Finnegan, Detective Joseph Miraglia, Detective James Smith, Detective Joseph Marrero, Detective David Negron and Detective Benny Tirado. Except where otherwise noted, the following facts—as testified to at the hearing by these investigating officers—are taken from the trial court's ruling on Haywood's motion to suppress the statements he made to the law enforcement officers.

Lillian DeJesus was shot and killed on December 14, 1993, at around 5:30 in the evening. See Decision and Order of Justice Ira. R. Globerman, dated November 13, 1996 ("Decision") (annexed to Affidavit in Opposition to Petition for Writ of Habeas Corpus, dated June 11, 2002 ("Aff. in Opposition"), Ex. 7), at 1. The subsequent investigation led to Jesus Ortiz, a young teenager who was picked up for questioning early in the morning of January 6, 1994. Id. at 2. During questioning by the police, Ortiz implicated himself, Jeffrey Rivera, Carlos Ocasio and Haywood in the murder. Id. Haywood was arrested at approximately 10:30 a.m. that morning and taken to the 48th Precinct. Id. Detective Smith advised Haywood of his Miranda rights, after which Haywood agreed to answer questions but denied any involvement in the shooting and, in fact, denied being present at the scene of the murder. Id. at 2-3. The interrogation ceased shortly thereafter. Id. at 3. Haywood, however, was kept at the precinct.

In the early afternoon of the same day, Rivera was arrested and identified Haywood as the person who shot DeJesus. Id. at 3. As a consequence of this identification, Sergeant O'Toole questioned Haywood around 2:30 p.m. but did not readminister the Miranda warnings. Id. Haywood no longer denied being present at the scene of the crime and said, "I'll talk to you, but, I didn't kill anybody. I know I didn't pull the trigger." Id. at 4; see also O'Toole: H. 31-32. Later, around 9:45 in the evening of January 6, two lineups were held — one with Haywood and one with Rivera. Decision at 4. The eyewitness to the shooting, Maritza Osario, identified Rivera but not Haywood. Id.; see also Smith: H. 242; Memorandum of Law in Support of Petition for Writ of Habeas Corpus, filed February 5, 2002 ("Pet. Mem."), at 37. After the lineups, Haywood was returned to his cell as the detectives continued the investigation. Decision at 4.

Sergeant O'Toole and Detective Smith resumed questioning Haywood in the early morning of January 7, at which time Detective Smith re-administered the Miranda warnings. Id. at 4-5. Haywood again denied killing DeJesus. Id. at 5. Sergeant O'Toole then told him that "we have people who say you did," to which Haywood replied, "I'd like to talk to you, but I can't." Id. Sergeant O'Toole then asked him if he was afraid of Borys Diaz, another suspect the police had arrested. Id. Because Haywood "appeared surprised" at the mention of Diaz's name, the investigating officers told Haywood that Diaz was under arrest and showed Haywood that Diaz was in custody. Id.; see also Smith: H. 224. Haywood thereafter wrote out and signed two statements in which he admitted to being at the scene of the murder but again denied participation. Decision at 5-6. The second of the two statements was given at approximately 3:15 in the morning on January 7. (See Tr. 745). He also agreed to make a videotaped statement and in fact did so once the district attorney assigned to the case arrived at the precinct at 6:00 a.m. that morning. Decision at 6. Prior to making the videotaped statement Haywood was read the Miranda rights for a third time. Id. After Haywood made the final statement, he signed a "speedy arraignment" waiver and was kept at the precinct for an additional twelve hours — but apparently was not questioned further — before being taken to the Criminal Court building for arraignment. See id. at 7-8, 11 n. 2; see also Smith: H. 173-75, 261-62, 267-68; Stipulation: H. 363. The challenged written and videotaped statements were ultimately used by the prosecution at trial to show that Haywood was present at the murder scene and that he went there with Diaz and Rivera. Tr. 738-39, 744-45, 747; see also Pet. Mem. at 38.

Following the hearing, the trial court found that the "videotaped statement demonstrate[d] that it was not procured through the use of any physical or emotional coercion." Decision at 6. Based on the "credible testimony" of the investigating officers, id. at 1, the court found the delay in arraignment to have been justified because the detectives "believed that other individuals involved in the crime might still be at large" and, given the "considerable publicity" surrounding the case, "the detectives feared that news of the arrests might prompt any unapprehended participants to flee." Id. at 7. The trial court also found that the delay was not "prolonged to prevent the entry of counsel into the case" but rather was necessary to conduct the "complex, rapidly unfolding" investigation, find "fillers" for the lineups, and locate the eyewitness and bring her to the precinct where the lineups were held. Id. at 8-11. Further, the investigation was complicated by the arrest of Diaz, who had been "at large" for twelve hours subsequent to Haywood's arrest. Id. at 10. As the officers believed there were other unknown people involved in the murder, the investigation was "continued and broadened." Id. And lastly, the three hour delay between the written and video-taped statements was deemed justified by the fact that the district attorney who was to conduct the interrogation did not arrive at the precinct until 6:00 a.m. on January 7. Id. at 10-11. In any event, the court found this delay did not postpone the appointment of counsel as arraignments are not held in Bronx County between 1:00 a.m. and 9:00 a.m. Id. The court noted that, during the twenty-hour period he had been interrogated, Haywood had been fed twice, allowed the opportunity to sleep, and permitted to use the telephone. Id. at 5. The court concluded that

the 20 hour period between the time of the defendant's arrest and his final statement was not calculated to exhaust the defendant, overbear his will or circumvent his right to counsel. This time was taken to conduct an active, ongoing investigation into a highly publicized contract murder that involved many witnesses and suspects.

Id. at 11 (citation omitted).

The court was also satisfied that Haywood's waiver of his Miranda rights was knowing, intelligent and voluntary. Id. It was noted that Haywood had been arrested on three prior occasions and thus was not "unfamiliar" with the criminal investigation process. Id. As there was "absolutely no evidence to suggest that [Haywood's] will was overborne," the court found that the challenged statements were freely and voluntarily made after a knowing and intelligent waiver of Miranda rights. Id. at 12-13.

B. Evidence at Trial

Haywood's trial began on September 26, 1996 before a jury in Bronx County. The evidence showed that on December 14, 1993, Lillian DeJesus was shot and killed as she and two others, Dilenia Abreu and Christopher Demma,...

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