Moreno-Gratini v. Sticht

Decision Date18 April 2022
Docket Number19-CV-05964 (GHW)(SN)
PartiesMERLIN MORENO-GRATINI, Petitioner, v. THOMAS STICHT, Respondent.
CourtU.S. District Court — Southern District of New York

REPORT AND RECOMMENDATION

SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE GREGORY H. WOODS:

Pro se petitioner Merlin Moreno-Gratini seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his September 6, 2017 convictions of attempted murder in the second degree and assault in the first degree. Moreno-Gratini's petition should be denied. All of his claims are procedurally barred. Even if they were not, habeas relief is unavailable on the merits.

BACKGROUND
I Moreno-Gratini's Arrest and Indictment

On May 18, 2016, Officers Gertrude Escobar and Marilyn Estrada responded to a 911 report of an assault at a building on West 139th Street. ECF No. 32-3 (“T.”) at 188-89, 223. When they and other police officers arrived at the scene they observed a woman, later identified as Moreno-Gratini's sister, Ingrid Moreno, lying in the street in front of the building. She was bleeding from a chest wound and several wounds to her hands. She and another woman with her, later identified as Moreno's and Moreno-Gratini's grandmother, Dolores Mauricio, both spoke Spanish, which Officers Escobar and Estrada spoke fluently.

According to the officers' testimony at trial, both Moreno and Mauricio told the police that Moreno's brother had stabbed Moreno and then directed the officers in the direction he had fled. Mauricio gave an officer an identification card with Moreno-Gratini's photograph and told Officer Escobar that he and Moreno had had an argument the prior night that continued into the morning when the stabbing occurred. Officer Escobar then accompanied Mauricio to her apartment in the building, where there was blood on the kitchen floor. Mauricio again said that Moreno and Moreno-Gratini had been arguing (over money) and that he had stabbed Moreno in the chest with a knife.

Another officer took Moreno-Gratini into custody shortly afterwards. On May 23, 2016, a grand jury indicted Moreno-Gratini for attempted murder in the second degree and assault in the first degree under N.Y. Penal Law §§ 125.25(1) and 120.10(1). ECF No. 32-2 (“R.”) at 2-3.

II. Relevant Trial Court Proceedings

Before the jury was selected, the court held a hearing on whether to admit out-of-court statements made by Moreno and Mauricio to Officer Gertrude Escobar, one of the prosecution's witnesses. The prosecution sought to introduce the statements because Moreno did not testify for the prosecution, only for the defense, and Mauricio did not testify at all due to her health. T. 2-3. Officer Escobar testified that when she arrived at the scene, she saw Moreno on the ground, crying and yelling not to let her die. T. 10-12. According to Officer Escobar, when she approached Moreno, Moreno said that her brother did it. T. 12-14. Officer Escobar also testified that, a couple of minutes later, she spoke to Mauricio, who was distraught and crying. T. 15. According to Officer Escobar, Mauricio said that Moreno was her granddaughter and that she was present when Moreno was stabbed. T. 16-17. Mauricio then took Officer Escobar to her apartment, where Mauricio told her that there had been a dispute the night before over money, and then in the morning, her grandson Moreno-Gratini came out of the room, took a knife, and stabbed Moreno in the chest. T. 17, 23.

The court admitted as excited utterances Moreno's statements to Officer Escobar, rejecting the defense's argument that there was time for reflection between when the incident occurred and when Moreno spoke to Officer Escobar. T. 32-33. The defense attorney asked the court to note his objection. T. 34.

The court also admitted as excited utterances Mauricio's statements to Officer Escobar, again rejecting the defense's arguments that there was time for Mauricio to reflect between when the incident occurred and when she spoke with Officer Escobar in the street and in the apartment. T. 36-39. The defense attorney again asked the court to note his objection. T. 39.

At voir dire, the presiding judge asked the panel of prospective jurors a series of questions to facilitate jury selection, including: whether the jurors or anyone close to them had ever been the victim of a crime or involved in the criminal justice system; whether any of the jurors were or had family members who were lawyers; whether the jurors accepted Moreno-Gratini's presumption of innocence and the government's duty to prove his guilt beyond a reasonable doubt; whether the jurors accepted that their task was to determine Moreno-Gratini's guilt but not his punishment; whether Moreno's refusal to testify for the prosecution would affect the jurors' ability to be fair; whether Moreno and Moreno-Gratini's familial relationship would lead the jurors to take the crime less seriously; whether any of the jurors' sibling relationships would affect their ability to be fair; whether the jurors would assess the police officer witnesses' credibility as though they were any other witness; and whether any of the jurors lived in the area where the crime took place. See T. 50-102. The court also asked the prospective jurors about their jobs, education, living situation, and hobbies, and whether anything troubled them about the case. See T. 102-125.

Given the scope of the court's questioning, the court instructed the attorneys not to be repetitious in their questioning of the jury. T. 125-26. The prosecuting attorney attempted to ask the jury whether they understood that the state, not the victim, had brought the case; the court stopped the attorney and said, “That's the rule. Move on. They know that.” T. 127. The prosecuting attorney then attempted to ask whether the jury felt that any particular evidence was required; the court again stopped the attorney and said that the jury did not “have to answer questions like that.” Id. The prosecuting attorney asked no further questions. T. 127-28. The defense attorney attempted to ask whether any members of the jury would not hold the prosecution to the burden of “beyond a reasonable doubt”; the court stopped the attorney and said, Counsel, I promised them that you would not be repetitious. I went through that.” T. 128. The defense attorney said, “The judge is killing me, ” and asked no further questions. T. 128-29.

At trial, Officer Escobar testified for the prosecution that, on May 18, 2016, she and Officer Estrada responded to a 911 call for an assault in progress at 602 139th Street. T. 188-89. When Officer Escobar arrived at the scene, she saw Moreno on the ground, crying and yelling not to let her die. T. 189. Officer Escobar testified that when she approached Moreno, Moreno said that her brother did it. T. 190-91. Defense counsel did not object to the statement's admission.

After Moreno was taken away in an ambulance, Officer Escobar spoke to Mauricio, who had been holding Moreno's head. T. 193. Mauricio was crying, shaken, and distraught. Id. Officer Escobar testified that Mauricio said that Moreno was her granddaughter, and that Mauricio was present when Moreno was stabbed, and that there had been an argument the night before that spilled over into the morning. T. 193. Mauricio took Officer Escobar to her apartment, where Officer Escobar saw blood on the kitchen floor. T. 193-94. According to Officer Escobar, when she was inside the apartment with Mauricio, Mauricio told her that there had been a dispute the night before over money, and in the morning, her grandson came out of the room, took a knife, and stabbed Moreno in the chest. T. 194. Officer Escobar recovered the knife and returned to the precinct. T. 195. Defense counsel did not object to the statements' admission.

Officer Petra Anderson testified for the prosecution that she arrested Moreno-Gratini on May 18, 2016. T. 204. On that day, she received a call for an assault in progress with a knife. T. 205. When Officer Anderson arrived at the scene, she saw Officer Escobar in the street with Moreno. T. 205-06. As Officer Anderson walked in Officer Escobar's direction, an older woman, who Officer Anderson later learned was Mauricio, approached. T. 27-28. Mauricio appeared distraught and crying, and she was holding an identification card with Moreno-Gratini's photo on it, which she gave to Officer Anderson. T. 206-07. According to Officer Anderson, Mauricio said “hermano, ” or brother in Spanish, and pointed down 139th Street towards Riverside Drive. T. 207. Defense counsel did not object.

The court then held a hearing outside the jury's presence to determine whether Officer Estrada could also testify to identifying statements made by Moreno and Mauricio. At the hearing, she testified that when she arrived at the scene and approached Moreno, Moreno said that her brother did it and pointed with her finger going west on 139th Street. T 217-18. Officer Estrada also spoke to the victim's grandmother, Mauricio, who said that Moreno's brother was responsible and, when asked which way the perpetrator went, pointed down 139th Street and the West Side Highway. T. 218. Finally, Officer Estrada testified that she asked Mauricio about the reason for the stabbing, and she said it was a fight over money. Id. When prompted by the court to make his argument as to the statement's admissibility, the defense attorney said, “Judge, we went over that before.” T. 219. The prosecuting attorney then asked, “The Crawford issue, your Honor, the statements are nontestimonial in nature?” T. 220. The defense attorney said nothing. The court admitted both Moreno's and Mauricio's out-of-court statements as to the identity of the perpetrator as non-testimonial excited utterances but did not allow Officer...

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