Michel v. Kirkpatrick
| Decision Date | 29 September 2020 |
| Docket Number | 18-CV-2469 (PKC) |
| Parties | DONALD MICHEL, Petitioner, v. MICHAEL KIRKPATRICK, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Donald Michel, appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for Murder in the Second Degree under N.Y. Penal Law § 125.25(3), and Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), and his sentence entered on December 5, 2011 in the Supreme Court of the State of New York, Kings County. Petitioner challenges his conviction on the following grounds: (1) the verdict sheet and the trial court's supplemental instructions on the felony murder charge were erroneous; and (2) his defense counsel was ineffective in (a) failing to object to the erroneous instructions and verdict sheet, (b) failing to call his sister to testify at the pre-trial suppression hearing, and (c) failing to challenge the police's allegedly illegal search and seizure with respect to his cell phone records. (See generally Dkt. 1.) For the reasons set forth below, the petition is denied in its entirety.
On the afternoon of December 29, 2008, Sason Shokrany was working in his store in Brooklyn. (Tr.2 1, Dkt. 8-3, at ECF 682: 3-14.) At approximately 3:30 or 4:00 p.m., Petitioner entered the store and asked Shokrany about a charger for Petitioner's cell phone. (Id. at ECF 682: 6-8; ECF 683:9-13.) After a brief conversation, Petitioner pulled out a gun and pointed it at Shokrany. (Id. at ECF 688:16-20.) At the same time, Widley Viau entered the store with a shopping bag, which he and Petitioner began filling with cell phones from the display case. (Id. at ECF 691:18-20.) Shortly thereafter, Shokrany looked toward the front door of the store, which was glass, and saw Zalmai Anwari, who worked as a driver for the cab company next door, outside the door. (Id. at ECF 696:1-4.) Shokrany watched as Viau ran out of the store, followed by Petitioner, leaving the blue shopping bag in the store in their haste. (See id. at ECF 696:6-24.) Shokrany saw two shots fired, hitting Anwari in the head. (Id. at ECF 699:6-11.) Anwari died the next day from the gunshot wound. (Tr. 2, Dkt. 8-4, at ECF 814:8-15.)
Petitioner was arrested in his home in Queens and taken to the 61st Precinct on the same day that Anwari died. (Id. at ECF 924-37.) Shokrany identified Petitioner in a lineup. (Tr. 1,Dkt. 8-3, at ECF 704-06.) While in custody, Petitioner also made statements to police admitting that he had participated in the attempted robbery of the store and that he had brandished a gun while Viau loaded merchandise into a bag. However, with respect to the killing of Anwari, Petitioner told the police that, as Petitioner and Viau fled from the store, Viau had shot a man. (Tr. 2, Dkt. 8-4, at ECF 1065:91-1066:9.) Petitioner was charged, by Kings County Indictment Number 25/2009, with Murder in the First Degree and Murder in the Second Degree, both with robbery as the underlying felony; Manslaughter in the First Degree; and Criminal Possession of a Weapon in the Second Degree. (Dkt. 8-1, at ECF 78, 174.)
The trial court held a suppression hearing on September 12 and 15, 2011, at which Petitioner raised a number of issues, including the manner in which he was arrested, and the subsequent lineup and content of his written statements. (Supp. Tr., Dkt. 8-2, at ECF 370:14-25; ECF 372:1-10.) Two New York City Police Department ("NYPD") detectives, Detective Lou Yero and Detective James McCafferty, and Kings County Assistant District Attorney ("ADA") John Gianotti testified at the hearing. (Id. at ECF 179:21-22; ECF 265:2-4; ECF 294:8-10.) The Court found the detectives' testimony credible and the arrest of Petitioner lawful. (Id. at ECF 371:11-12.) The trial court specifically held both that there was consent for the police to enter Petitioner's home to arrest him and that, in any event, an outstanding warrant for his arrest, unrelated to the homicide charges, justified the officers' entry. (Id. at ECF 371:13-20.)
Between September 28, 2011 and October 13, 2011, a jury trial was held before Justice Joel M. Goldberg in Kings County Supreme Court. (See generally Trs. 1-3, Dkts. 8-3, 8-4, 8-5.) In addition to Shokrany's testimony about the attempted robbery by Petitioner and Viau, and Petitioner's shooting of Anwari (Tr. 1, Dkt. 8-3, at ECF 683-700), a number of law enforcementand forensic expert witnesses testified. Detective Matthew Steiner of the NYPD's Crime Scene Unit testified that the blue shopping bag, which was left at Shokrany's store, and all of its contents were forwarded to the police lab for chemical development of latent fingerprints and DNA analysis. (Id. at ECF 579:15-22.) He also testified that he recovered thirty-four latent fingerprints from the crime scene. (Id. at ECF 604:6-9.) Alynka Jean of the NYPD Latent Print Development Unit testified that she found four fingerprints on a roll of duct tape, thirteen prints on the cell phones and chargers, and twenty-five fingerprints from the shopping bag itself. (Id. at ECF 638:7-20; ECF 651:21-24; ECF 657:3-23.) Detective Cynthia Ramirez, also of the Latent Print Unit, testified that she identified one of the fingerprints from the side of a case containing watches inside Shokrany's store, and two fingerprints from a duct tape roll, as belonging to Petitioner. (Tr. 2, Dkt. 8-4, at ECF 856:2-9, 866:11-20.) Anthony Joseph Tosi, a criminalist with the New York City Office of the Chief Medical Examiner (the "ME's Office"), stated that the DNA samples taken from the blue shopping bag likely belonged to Viau. (Id. at ECF 909:2-15.)
Dr. Melissa Pasquale-Styles, also with the ME's Office, testified that Anwari's death was caused by a gunshot wound to the head. (Tr. 2, Dkt. 8-4, at ECF 814:8-15.) Detective Wilfredo Torres of the NYPD's Firearms Analysis Section testified that he could not determine whether the bullet that killed Anwari was fired from a revolver or a semi-automatic pistol. (Id. at ECF 828:21-24.)
NYPD Detective James McCafferty testified that, on December 31, 2008, upon learning that Petitioner's fingerprints had been found inside the cell phone store, he went to Petitioner's house and asked if Petitioner would speak to the police, and that Petitioner agreed and accompanied McCafferty to the 61st Precinct. (Id. at ECF 925-32.) ADA Gianotti testified that he conducted a videotaped interview of Petitioner at the 61st Precinct that day. (Id. at ECF 1024:3-7.) Detective Yero testified that on December 30, 2008, he conducted lineups for Shokrany to identify the people who attempted to rob the cell phone store. (Id. at ECF 1042:13-16.) Detective Yero further stated that he read Petitioner his Miranda3 warnings on December 31, 2008, after which Petitioner admitted his role in the robbery, but claimed that Viau had taken the gun from him and run out of the cell phone store. (Id. at ECF 1053-59.) Petitioner's written statement was provided to the jury. (Id. at ECF 1064-66.)
In addition to these law enforcement witnesses, Joseph Sierra, a compliance officer at T-Mobile, testified that T-Mobile had Viau's name and address in its records. (Tr. 3, Dkt. 8-5, at ECF 1110:15-21, 1113:9-21.) Lastly, Henry Enright, a contractor for AT&T, testified that several calls were made to and from Petitioner's cell phone around the date and time of the attempted robbery, indicating that he was in the vicinity of Shokrany's cell phone store around the date and time at issue. (Id. at ECF 1154-58.)
Following the presentation of evidence and summations, the trial court charged the jury. (Id. at ECF 1259-99.) Before the jury began its deliberations, the court told the jury that it would be receiving an annotated verdict sheet. (Id. at ECF 1293:19-25.) In introducing the annotation for the first charge, Murder in the First-Degree, the court stated:
And just a reminder under there, I've written, intentionally and personally causes the death while committing a robbery. That's not the entire definition but it's just to differentiate it from the other charges. So murder in the first degree requires that the defendant personally caused someone's death, that he did it during the commission of a robbery, and that he was at least eighteen years old at the time. I summarized some of those elements here for you.
(Id. at ECF 1294:2-12.) When explaining the annotation for the Murder in the Second-Degree charge, the court said, "[a]nd count three is murder in the second degree with a reminder under it,causes death either personally or acting in concert while committing a robbery." (Id. at ECF 1294:22-24.) Defense counsel did not object to the court's oral explanation of the annotated verdict sheet. (See generally Tr. 3, Dkt. 8-5.)
During deliberations, the jury sent the court several notes. (See, e.g., id. at ECF 1316:4-5.) One of the notes, marked Court Exhibit 8, asked for "[specific] instructions on how to fill out the verdict sheet." (Id. at ECF 1316:14-19.) Another note, marked Court Exhibit 9, read, "[c]an the jury get explained the four charges that is [sic] on the verdict sheet." (Id. at ECF 1316:24-25, ECF 1317:1-2.) The court stated to the jury:
Now, I will give you an overall explanation of the charges. I'm not going to give you a detailed explanation of the charges. If you want a detailed explanation of the charges I will. If you understand this overall view you will understand why the verdict sheet instructions are the way they are.
(Id. at ECF 1319:4-10.) When describing count three, the felony-murder charge (or second-degree murder charge) on which Petitioner was ultimately convicted, the court stated:
[C]ount three is the deceased was killed during the course of and in furtherance of the commission of a robbery or an immediate flight therefrom of a...
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