Merritt v. Chappius

• Decision Date: 29 September 2015
• Docket Number: 9:14-CV-1481 (LEK)
• Parties: CEDRIC K. MERRITT, Petitioner, v. P. CHAPPIUS, JR., Respondent.
• Court: U.S. District Court — Northern District of New York

CEDRIC K. MERRITT, Petitioner, v. P. CHAPPIUS, JR., Respondent.

9:14-CV-1481 (LEK)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 29, 2015

DECISION and ORDER

I. INTRODUCTION

Petitioner Cedric Merritt ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 2011 judgment of conviction, in the Supreme Court, Albany County, of burglary in the second degree (N.Y. Penal Law ("Penal Law") § 140.25(2)) and petit larceny (Penal Law § 155.15). Dkt. Nos. 1 ("Petition"); 7 ("Petitioner's Memorandum"). Respondent filed a Response to the Petition along with pertinent records from the state court proceedings. Dkt. Nos. 10 ("Respondent's Memorandum"); 12 ("State Court Records"). Petitioner filed a Reply. Dkt. No. 15 ("Reply"). Also pending before the Court is Petitioner's combined Motion for discovery, an evidentiary hearing, and appointment of counsel, with accompanying exhibits. Dkt. Nos. 14 ("Discovery Motion"); 14-4 ("Discovery Memorandum"); 14-5 ("Exhibits"). For the following reasons, Petitioner's Motion is denied with prejudice and the Petition is denied and dismissed.¹

II. BACKGROUND

A. Indictment and Pretrial Proceedings

Petitioner was charged by indictment with one count each of second-degree burglary, fourth-degree grand larceny (Penal Law § 155.30), and second-degree criminal impersonation (Penal Law § 190.25(1)) in relation to a theft from a residence. Dkt. No. 12-1 at SR 28-30.² As described in greater detail below, the complainants returned to their residence on February 21, 2010, discovered some of their property was missing, and filed a report with the Watervilet Police Department. Id. at SR 7-8. The following day, the same officer who took complainants' report executed a traffic stop of a vehicle in which Petitioner was a passenger. Id. at SR 8. The officer observed the items reported missing from complainants' apartment in the passenger compartment of the vehicle, and Petitioner was arrested in relation to that incident as well as an outstanding warrant. Id.

As is relevant to his claims in this proceeding, through counsel, Petitioner filed an omnibus motion and, in a decision and order on May 17, 2010, the trial court concluded that the evidence presented to the grand jury as to the criminal impersonation charge was legally insufficient and dismissed that count. Id. at SR 31-34. The court also directed the prosecution to furnish any existing Brady material and granted Petitioner's requests for Huntley and Mapp hearings. Id. at SR 33.

A combined Huntley/Mapp hearing was held on July 14, 2010. Dkt. No. 12-6 ("Huntley/Mapp Hearing Transcript") at 1.³ On February 21, 2010, Anthony Harbour, a patrol officer with the City of Watervilet Police Department, responded to 609 23rd Street to investigate a burglary. Id. at 7. The complainants, who resided in the second-floor apartment of the building,reported that they had left home in the afternoon and, upon returning, discovered that a coin bank—unusual in design and made from an old post office box—as well as some jewelry were missing. Id. at 8-9. The items were taken from the bedroom of the apartment. Id. at 8.

The following evening, Harbour observed a vehicle with a missing headlight and executed a traffic stop a few blocks from complainants' apartment. Id. at 9-10. The driver, Erin Deyo, provided her license and registration. Id. at 10. Harbour asked Petitioner, who was in the passenger seat, for his name, and Petitioner initially ignored Harbour and then stated that his name was "Frederick Graham." Id. at 10-11. Harbour returned to his patrol car and, finding no record for the name Petitioner provided, asked him again to identify himself. Id. at 11. Eventually, at Harbour's request, Petitioner exited the vehicle and provided an identification card with his real name. Id. at 12-13. Harbour learned that a warrant was outstanding for Petitioner's arrest. Id. at 18, 35. After he secured Petitioner and returned to Deyo's vehicle, Harbour observed the coin bank that complainants reported missing the day before. Id. at 13-15. Deyo and Petitioner denied knowing anything about the bank. Id. at 15-16. Both were placed in custody, an inventory search was conducted, and another officer located a plastic bag of jewelry in the glove compartment of the vehicle. Id. at 16, 18, 34. One of the complainants identified the jewelry at the station as that taken from the apartment. Id. at 17. Deyo was ultimately released. Id. at 32.⁴

Sergeant John Morrow interviewed Petitioner at the Watervilet police station. Id. at 41-43. Petitioner told Morrow that he went to visit his friend named Mark at a residence on 23rd Street. Id. Mark did not answer his door, and Petitioner noticed "a bag with some property in it sitting on thefloor" outside of Mark's door. Id. at 44. Petitioner took the property and left. Id. Morrow testified that he provided Petitioner Miranda warnings only after Petitioner's statement; however, the court suspended the hearing, and the prosecution conceded that the statement was custodial and not admissible on its case-in-chief. Id. at 44-48. Petitioner's counsel agreed with that conclusion. Id. at 48. Counsel argued that Harbour also "exceeded his authority" during the traffic stop, but the court concluded that Harbour's investigative steps were "appropriate to the information that was clearly before him." Id. at 47, 49-50. The court denied Petitioner's motion to suppress physical evidence. Id. at 51.

B. Jury Trial

A jury trial was held on November 3-4, 2010.⁵ Richard Collins testified that he owned the building at 609-611 23rd Street, and that the bedroom from which his coin box was taken was located in the back of the residence. Dkt. No. 12-6 ("Trial Transcript") at 134-35, 137-38. He and his wife, who also lived there, identified their property at the police station the following day. Id. at 141-42.⁶ None of the tenants that lived in the other apartments of the building were named Mark, and he had not leased to anyone named Mark in the previous five years. Id. at 143-44. Collins had never met Petitioner. Id. at 146. He noted that the police did not dust for fingerprints, and that he occasionally left both the door to the apartment and the exterior door unlocked for access by his family. Id. at 147-49. An American flag was displayed from the building, and was "most likely" there on February 21, 2010. Id. at 151-52.

Harbour recounted that he took the burglary report and pulled over Deyo's vehicle, in which Petitioner was a passenger, the following day. Id. at 154-55, 158-60. Harbour saw the coin bank on the floor behind the driver's seat of Deyo's vehicle, and another officer thereafter located jewelry in the glove compartment. Id. at 161-63. He noted that there was no sign of forced entry at the apartment, and complainants reported to Harbour that they left the apartment and building doors unlocked when they left home on the date of the theft. Id. at 166.

Petitioner testified at the grand jury presentation, and his testimony was admitted and read into the record at trial without objection. Id. at 179-80. The transcript reflected that, prior to testifying, Petitioner reviewed and executed a written wavier of immunity, and stated that he understood that his statements could be used against him in other proceedings. Id. at 180-82. According to Petitioner, he and another friend went to visit "Mark" in Watervilet. Id. at 183. Petitioner went to the second-floor apartment where he thought Mark resided and knocked on the door, but received no answer. Id. at 183-84. Petitioner saw "a bag in a box on the floor" and, assuming it belonged to Mark, he picked it up, returned to the vehicle waiting for him around the corner, and placed the items in the car. Id. at 184-85. The bag contained jewelry and "a safe-like box" holding change. Id. at 192. He intended to hold the items for Mark and return them the following day. Id. at 197-98. He noted that a flag, but not an American flag, was in front of the building. Id. at 199.

Petitioner returned the next day with the items still in the vehicle. Id. at 185. Once again, Mark was not there, and, this time, there were "Spanish people in the second-floor apartment." Id. Petitioner asked "the Spanish guy" where Mark was, and the male replied that the previous tenants moved out the week before. Id. When the police subsequently stopped Deyo's car for an equipmentviolation, Petitioner provided a false name because he knew that there was an outstanding warrant for his arrest from the City of Troy. Id. at 186.

The prosecution rested, and Petitioner called several witnesses. Jennifer Ashline testified that she lived at 514 23rd Street in Watervilet and displayed a flag outside the building, but never an American flag. Id. at 212-13. Ashline had no knowledge of the incident involving the complainants, who lived a block to the west, but she noted that a person named Mark previously lived in the upstairs apartment of the building next door, 516 23rd Street. Id. at 215. She could not recall when he moved out. Id. at 215.

Todd Senecal, who owned the building located at 516 23rd Street, had a tenant named Mark who lived on the second floor. Id. at 217-18. Senecal commenced eviction proceedings against Mark for nonpayment, and estimated that Mark moved out around February 10, 2010. Id. at 219-20. Senecal had no prior familiarity with Petitioner. Id. at 222. The first-floor tenant of that building, Michael Ramirez, was of Hispanic descent. Id. at 221. Ramirez testified that he knew Mark Perry, his upstairs neighbor, as well as Mark's girlfriend, who also resided in the apartment and made jewelry. Id. at 225-27. William Bradley, a private investigator retained by counsel, located Ramirez and Ashline, contacted Senecal, and spoke with Perry by phone. Id. at 231-35. Perry was "very evasive" and did not provide an address. Id. at 235.

After the close of evidence, the court held a charge conference and...