Kotler v. Woods
| Decision Date | 15 April 2009 |
| Docket Number | No. 07-CV-4442 (JFB).,07-CV-4442 (JFB). |
| Citation | 620 F.Supp.2d 366 |
| Parties | Kerry KOTLER, Petitioner, v. Robert WOODS, Superintendent of Upstate Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Kerry Kotler, pro se.
Thomas C. Costello, Assistant District Attorney, Office of the District Attorney of Suffolk County, Riverhead, NY, for respondent.
Petitioner Kerry Kotler (hereinafter, "Kotler" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted in a judgment rendered on October 23, 1997, following a jury trial, in the County Court of the State of New York, Suffolk County. Petitioner was convicted of Rape in the First Degree and sentenced to a period of incarceration of seven to twenty-one years.
Petitioner challenges his conviction on the following grounds: (1) that he was denied judicial oversight, his right to be present, and access to counsel at trial; (2) that the trial court admitted hearsay testimony and out-of-court statements in violation of petitioner's due process and confrontation rights; (3) that the destruction of highly material evidence by the State violated petitioner's due process rights; and (4) that the jury was not a fair, random cross-section of the community.
For the reasons set forth below, petitioner's request for a writ of habeas corpus is denied in its entirety. First, petitioner has failed to demonstrate that his constitutional right to be present was violated in connection with an exhibit list or a jury deadlock note. Second, petitioner has failed to demonstrate that a "911" tape was given to the jury during deliberations or, even if it was, that he was denied his constitutional right to a fair trial. Third, petitioner has failed to demonstrate that his right to counsel was hindered in any way by the trial court's admonitions to petitioner about talking while the trial court was speaking. Fourth, the admission of certain inadmissible hearsay does not amount to constitutional error warranting habeas relief where the evidence of petitioner's guilt in the underlying crime of rape was overwhelming—including (1) DNA evidence establishing the presence of petitioner's semen on the victim's skirt and on vaginal swabs taken from the victim; (2) the matching of the victim's description of the vehicle in which she was taken and a partial license plate to the vehicle registered to petitioner's girlfriend and driven by petitioner; and (3) petitioner's activities in the early morning hours of August 12, 1995 placed him in the path of the area where the victim was abducted and the location where she was dropped off. The defendant's theory that the defendant's semen was found on the victim's skirt because detectives planted the evidence by taking semen from a condom found in the defendant's garage at his house was fully explored by defense counsel during the trial and rejected by the jury in light of the overwhelming evidence of petitioner's guilt. Thus, the admission of certain inadmissible hearsay was harmless. Fifth, petitioner's claims of Rosario violations do not provide a basis for habeas relief because any such violations did not violate his constitutional rights, including his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, and, in any event, were properly addressed by the trial court. Finally, petitioner's claim regarding jury selection based upon the over-representation of nurses on the jury panel is procedurally barred and, in any event, is without merit, because, among other things, nurses are not a distinct class, over-representation of a group (without under-representation of another group) does not itself raise constitutional implications, and petitioner has not established a basis for an equal protection violation. In short, as discussed in detail below, the Court has reviewed all of petitioner's claims and finds them to be without merit.
The following facts are adduced from the underlying record.
During the summer of 1995, Kathleen O'Shea ("O'Shea") worked as a waitress at the Beach Bar in Hampton Bays ("Beach Bar"). (Trial Transcript ("Tr.") 1961.) O'Shea was a college student from upstate New York who was living with her friend Missy Renck ("Renck") for the summer. (Tr. 1961.) On Friday, August 11, 1995, O'Shea returned from work to Renck's home in Mastic, New York, where they prepared to go out that evening (Tr. 1962.) O'Shea borrowed a black skirt, a denim vest, and shoes from Renck. (Tr. 1962-63.) O'Shea and Renck arrived at the Beach Bar at approximately 12:30 a.m. on August 12, 1995. (Tr. 1963.) Renck left the Beach Bar with a friend of hers, and O'Shea left the bar alone between 3:00 and 3:30 a.m. (Tr. 1965.)
After leaving the bar, O'Shea drove towards Sunrise Highway to travel west back to Mastic. (Tr. 1967.) As O'Shea was exiting the highway, she noticed head-lights flashing in her rearview mirror from a car behind her. (Tr. 1967.) The car then pulled alongside her car, and the man inside displayed a badge and motioned to her to pull over to the side of the road. (Tr. 1968.) O'Shea drove her car a short distance, and the other car pulled behind her. (Tr. 1969.) The man got out of his car and approached O'Shea's vehicle on the driver side. After displaying his badge, the man advised O'Shea that she was "all over the road" and wanted to give her a "drunk test." (Tr. 1969.) When the man said he was going to call for backup, O'Shea got out of her car and pleaded for him not to call backup. At this point, the man said they needed to move their cars because they were in the way of traffic. (Tr. 1970.) He pulled his car over, and O'Shea pulled in behind him. O'Shea stepped out of her car and asked to see the man's badge again, and he walked back to his car. She noticed that the man had a ponytail. (Tr. 1972.)
When the man came back to O'Shea's car, he grabbed her around the neck and put a serrated knife in her side. (Tr. 1972, 1978.) The assailant pulled O'Shea from the doorway of her car and shut the door with his foot. (Tr. 1972.) O'Shea started to scream, but her assailant covered her mouth and forcibly put her into his car. (Tr. 1973.) He told her to keep her "head down at all times." (Tr. 1973.) O'Shea kept her head down, and her hair was covering her face. She noted from the emblem on the dashboard that the car was a Grand Am, and that the inside of the car was a light blue or light gray color. (Tr. 1975.) O'Shea attempted to lift her head, but her assailant smacked her "right upside the head." (Tr. 1975.)
The assailant eventually stopped the car, pulled O'Shea out, and told her to keep her hair in front of her face. (Tr. 1978.) O'Shea was led into a wooded area and told to undress. (Tr. 1979.) She was told to get on her hands and knees, and she felt her assailant put his penis inside her vagina. (Tr. 1980.) O'Shea's assailant ejaculated inside her, and he then rolled her onto her back and started to squirt a liquid inside her vagina using a squeeze bottle. (Tr. 1980.) O'Shea expressed concern that the liquid smelled like gasoline and that her assailant was going to burn her, so she asked him to squirt some of the liquid into her hand so she could smell it. (Tr. 1980-81.) O'Shea's assailant stated that he was squirting the liquid so that if he was ever caught, there would be no evidence. (Tr. 1981.)
After putting on her vest and shoes, and carrying the rest of her clothes, O'Shea was led back to the car and told to keep her head down. As she approached the car, she was able to observe part of the New York license plate—G55 1D, and perhaps a 9. (Tr. 1982.) She also saw that it was a New York license plate and that the car was white. (Tr. 1983.) O'Shea was driven to a residential area, and her assailant told her to run to an area with weeds, count to sixty, and that if she did not count to sixty, he would come back and kill her. (Tr. 1984.) She ran to a nearby Amoco gas station, where she made a series of other calls to friends and also called 911. (Tr. 1988.)
An officer arrived at the gas station, and O'Shea told him what happened. She gave the officer the partial license plate number that she saw on her assailant's car, and told the officer that it was a white two-door Grand Am. (Tr. 1990-91.) O'Shea described her assailant as a white male, with a ponytail, five feet nine and one-half inches tall. She thought at the time that his hair was strawberry blond. (Tr. 1991.)
O'Shea met Detective Robert Titolo ("Titolo"), who also came to the gas station, and they went to the area where O'Shea was dropped off. (Tr. 2003.) They then attempted to locate the area where the attack occurred, but were unsuccessful. (Tr. 2003.) O'Shea was then taken to Stony Brook University Hospital, where she was examined with a rape kit. (Tr. 2005.) While she was at the hospital, Titolo questioned O'Shea about the incident. (Tr. 2004.)
The next day, O'Shea met with Titolo, who came to her house. Detective Titolo showed car books to O'Shea, and she identified the Grand Am as having been produced in either 1988 or 1989. (Tr. 2008.) O'Shea then went to Yaphank to assist the police in creating a composite sketch of her assailant, but she was unable to do so. (Tr. 2008-09.)
On September 25, 1995, O'Shea was taken by the police to the Property Bureau of the Suffolk County Police Department and "walked right up to a car" because it was "the exact, shape, style, color and everything of the car" in which she was taken. (Tr. 2011.) O'Shea also noticed that the license plate started with "G55 1." (Tr. 2011.) O'Shea sat in the car in the impound lot, with her...
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