Johnson v. Russell
| Docket Number | 21-CV-06710-FPG |
| Decision Date | 24 May 2023 |
| Parties | NATALIE A. JOHNSON, Petitioner, v. EILEEN RUSSELL, Respondent. |
| Court | U.S. District Court — Western District of New York |
DECISION AND ORDER
Pursuant to 28 U.S.C. § 2254, petitioner, Natalie A. Johnson brings this pro se habeas petition to challenge her state-court convictions for (1) Murder in the Second Degree in violation of New York Penal Law § 20.00 and § 125.25(1) (“intentional murder”) and (2) Felony Murder in the Second Degree, in violation of New York Penal Law § 125.25(3) (“felony murder”). ECF No 1. The charges arose out of Petitioner's participation in the robbery and murder of Edline Chun in February 2013. Id. Respondent Eileen Russell opposes the petition. ECF Nos. 21-2, 28. For the reasons that follow, Ms Johnson's request for habeas relief is DENIED.
Ms Johnson's co-defendant, Jerrell Henry, was released from prison in December of 2012 and moved in with his parents at 220 Hazelwood Terrace. Tr. 421.[1]The victim, Edline Chun, lived alone directly next door and on the same side of the street at 226 Hazelwood Terrace. Id. At some point, Mr. Henry overheard Ms. Chun tell his mother that her home had been burglarized, but the burglars did not find her cash. Tr. 617-18. In late December 2012, Mr. Henry met and began a relationship with Ms. Johnson and they quickly moved in together at Ms. Johnson's apartment located at 698 Frost Avenue in Rochester, after Mr. Henry's parole officer approved Ms. Johnson's residence as an appropriate home because she did not have a felony record and did not have any weapons or alcohol at home. Tr. 409, 421-22, 432. Mr. Henry told Ms. Johnson about Ms. Chun's stash of cash, and together they decided to rob Ms. Chun, expecting to find the cash stash. Tr. 61718.
In preparation for the robbery, Ms. Johnson and Mr. Henry visited a Wal-Mart store to purchase a large blue storage tote on January 31, 2013.[2] On the day of the robbery, February 3, 2013, Ms. Johnson, Mr. Henry, and Mr. Henry's “cousin named E” drove to Ms. Chun's house. Tr. 618. Cousin “E” remained in the car as Ms. Johnson and Mr. Henry went to the house and tricked Ms. Chun into letting them in by telling her that they brought her some food. Tr. 619-20. Upon entry, Mr. Henry “mushed” Ms. Chun “down to the ground,” and forced Ms. Chun to take them upstairs where they bound her and forced her to “call a bank or a card or something like that and try to make her sign some checks.”[3]Tr. 620, 679.
After completing the robbery, Mr. Henry was seen carrying a television and other items out of the house in a “box.” Tr. 1073. Ms. Johnson, cousin “E” and Mr. Henry drove away and Mr. Henry directed a fourth person, Jachelle Gaines, who was outside during most of the time of the robbery,[4] to drive Ms. Chun's car, a silver Pontiac Vibe, away as well. Id. The next day, Ms. Johnson and Mr. Henry struggled to find someone who would cash the check that Ms. Chun wrote, eventually leading to Ms. Johnson calling Citizens Bank pretending to be Ms. Chun and requesting that she be reminded of the PIN to Ms. Chun's debit card. Tr. 835-45, 898-900.
A few days later, Ms. Johnson called her ex-boyfriend, Gary Brown, “crying and shaken up,” to tell him about the robbery. Tr. 615. She told him about how Mr. Henry overheard Ms. Chun talking about her cash. She described that during the course of the robbery, while Mr. Henry collected valuable items to carry out of the house, Ms. Johnson was “consoling” Ms. Chun by stroking her hair and telling her “it was going to be okay.” Tr. 620-21. She further explained that she also covered Ms. Chun's mouth with duct tape when someone came to the door and continued to try to soothe her. Tr. 681. Ms. Johnson told Mr. Brown that, at some point, however, Mr. Henry decided to kill. Ms. Johnson recounted to Mr. Brown that Mr. Henry asked Ms. Chun where her gun was, and Ms. Chun told him. Tr. 622-23. Mr. Henry retrieved Ms. Chun's gun, a Mossberg .22 caliber rifle, the bullets, and shot Ms. Chun in the head twice. Tr. 622-23, 778-82. After Mr. Henry murdered Ms. Chun, Ms. Johnson helped Mr. Henry clean up the house. Tr. 623-24. Other than this retelling of what happened, there was no other eyewitness testimony regarding the murder.
The day after the robbery, Ms. Johnson, Mr. Henry, and cousin “E” returned to Ms. Chun's house to continue cleaning and to dispose of Ms. Chun's body. Tr. 625. They used a “bin” to carry her body out of the house and dropped her body in Tryon Park. Id. Two days later, a county worker went to Tryon Park to perform a weekly inspection. After finding a tote on the hillside and a body in the creek, he notified the police. Tr. 448-51, 453-55, 457-58, 686. The body was identified as belonging to Ms. Chun. Her wrists and ankles had been bound with duct tape and she had sustained two fatal gunshot wounds to the head. The medical examiner provided police with bullet fragments that had lodged in Ms. Chun's skull. Tr. 460-67, 470, 472-82, 532, 535-38, 545-46, 548-49, 551, 1182.
The Rochester Police Department identified Mr. Henry as a suspect in the murder the next day and set out to find him. Mr. Henry was found in the parking lot of a market on West Avenue in Ms. Chun's silver Pontiac Vibe with a woman named Elise Harris. Tr. 685-88. On Mr. Henry's person, the police recovered two mobile phones, Ms. Chun's car keys on a key chain bearing her identification, and over $10,000 in cash. Tr. 721-30. In the silver Pontiac Vibe, the police found Ms. Chun's Mossberg .22 caliber rifle wrapped in a Hello Kitty blanket. Tr. 749. The gun was loaded with a single unspent round. Tr. 751. Subsequent ballistics analysis established that the gun was operable and contained a live round. Ballistics examination also revealed that the gun could have fired the bullets whose fragments were recovered from Chun's skull. Tr. 769-72, 774-77.
Police also executed a search warrant at Ms. Johnson's house where they seized the lid for the tote that was recovered from Tryon Park. Tr. 1021. Police also found paperwork from Citizens Bank, a clear latex glove with jewelry in the finger, loose latex gloves in the bedroom, and a box of latex gloves in the bathroom. Tr. 1025-26.
Ms. Johnson fled to Queens County where she was arrested on February 28, 2013. In March 2013, she was indicted on charges of (1) Intentional Murder in the Second Degree, in violation of New York Penal Law § 20.00 and § 125.25(1) and (2) Felony Murder in the Second Degree, in violation of New York Penal Law § 125.25(3). S.R. at 71-72.[5]
Jury selection took place on October 15 and 16, 2013. After the parties questioned the first panel of prospective jurors, and Ms. Johnson consulted with her counsel, the attorneys and trial judge met at a sidebar. During the sidebar conference, the court dismissed a prospective juror who could not serve due to a scheduling conflict, and the parties selected three jurors, who were then sworn in. Tr. 93-97. Ms. Johnson was not present for this sidebar. The court adjourned the proceedings until the next day. Tr. 98.
The next morning, in the presence of Ms. Johnson, her attorney, and the prosecutor, the court explained that even though the court did not believe that Ms. Johnson had been required to be present for the previous day's sidebar conference, and even though Ms. Johnson had the opportunity to consult with her lawyer in order to inform his actions during the sidebar when the jurors were selected and had not objected to seating those jurors, the court would agree to dismiss any or all of the selected jurors if Ms. Johnson wished. Tr. 100-07.
Ms. Johnson's attorney acknowledged that he had not objected to the seating of the three jurors. Tr. 106. However, counsel stated that he did not “know if there was a legal error committed or not” and would not “waive any legal error.” Tr. 107. After some back and forth among the parties, defense counsel stated that if Ms. Johnson's absence from the sidebar was “legal error,” the three sworn jurors “should be dismissed.” Tr. 111.
The prosecutor stated that because the parties had been unable to “get to the bottom of the issue,” the three sworn jurors should be dismissed, and jury selection should “start over.” Tr. 112. The court responded that notwithstanding its belief that no error had transpired, it would discharge the sworn jurors. Tr. 112. Defense counsel stated that the jurors should not be dismissed “in the absence of a statement by the court or the prosecution [that] legal error was, in fact, committed in not allowing [Ms. Johnson] to be present at the sidebar.” Tr. 114-15.
The court dismissed the sworn jurors and began jury selection “anew,” thus restoring all previously used peremptory challenges to both sides. Tr. 115-16.
Once the final jury was selected and sworn, it heard the case against Ms. Johnson between October 17 and October 28, 2013, in New York State Supreme Court, Monroe County (Affronti, J.). The jury found Ms. Johnson guilty of intentional murder and felony murder. Tr. 1371-75. On December 18, 2013, the court sentenced Ms. Johnson to a prison term of 25 years to life. S.R. 23.
Ms Johnson, through counsel and in a pro se supplemental brief, appealed her conviction on the grounds that, inter alia: (1) the proof of guilt on both counts was legally insufficient; (2) she was deprived of a fair trial where, in her absence, a prospective juror was discharged and three jurors were chosen; (3) she was deprived of a fair trial where the court dismissed all jurors (because they had been chosen in her absence) and restarted jury selection; and (4) defense counsel was ineffective because he failed to: (a) object when three sworn jurors...
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