Palmer v. Bell
| Decision Date | 19 October 2021 |
| Docket Number | 9:18-CV-1133 (GTS/TWD) |
| Parties | RUSSELL PALMER, Petitioner, v. BELL, Respondent. |
| Court | U.S. District Court — Northern District of New York |
RUSSELL PALMER, Petitioner,
v.
BELL, Respondent.
No. 9:18-CV-1133 (GTS/TWD)
United States District Court, N.D. New York
October 19, 2021
RUSSELL PALMER OF COUNSEL Petitioner, pro se
HON. LETITIA JAMES PRISCILLA STEWARD, ESQ. OF COUNSEL: Attorney for Respondent.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge.
This matter has been referred for a Report-Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Honorable Glenn T. Suddaby, Chief United States District Judge. Russell Palmer ("Palmer" or "Petitioner") filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction, in the County Court of the State of New York, Albany County (the "Trial Court"). (Dkt. No. 1.) On May 15, 2015, a jury found Petitioner guilty of the following crimes: (1) murder in the second degree; (2)
conspiracy in the second degree; (3) two counts of criminal possession of a weapon in the second degree; and (4) criminal possession of a controlled substance in the second degree. (T. 1126-1128.)[1] Petitioner was sentenced to an aggregate prison term of 39 years to life, followed by five years of post release supervision. (Dkt. No. 1 at 1.)
Petitioner challenges his conviction on the following grounds: (1) his pretrial counsel provided ineffective assistance; (2) the Trial Court lacked jurisdiction due to a defective indictment; (3) judicial misconduct; (4) the Trial Court erred when it permitted the admission of Petitioner's videotaped statement; (5) the Trial Court erred when it permitted the admission of DNA evidence; (6) the Trial Court erred when it admitted evidence discovered pursuant to a defective search warrant; (7) the Trial Court erred when it admitted Petitioner's cell phone records; (8) the evidence did not support the conspiracy conviction; and (9) the jury instructions on the murder charge were contradictory and confusing. (Dkt. No. 1.) Bell, through the State of New York, (the "State" or "Respondent") opposes Palmer's petition. (Dkt. Nos. 19, 20.) For the reasons set forth below, this Court recommends denying Petitioner's request for a writ of habeas corpus in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Arrest
On December 23, 2013, at approximately 11:00 a.m., Petitioner was arrested at the Desmond Americana Hotel in Albany, New York after a traffic stop. (SR. at 253, 1224.)
Petitioner was transported to the City of Albany Police Department and, at 3:47 p.m., Detective Quinlivan ("Det. Quinlivan") administered Miranda warnings. (Id. at 343, 1224; H. at 171-172.) Petitioner indicated he understood his rights and agreed to answer questions. (H. at 171-172.) At that time, detectives took a DNA swab from Petitioner and confiscated two cell phones. (T. at 90; SR. at 1051.)
On December 24, 2013, Trooper Patrick Hogan ("Trooper Hogan") filed three felony complaints accusing Petitioner of criminal possession of a controlled substance and criminal possession of a weapon on December 23, 2013, at approximately 11:05 a.m. (SR. at 40-42.)
B. Pretrial Proceedings
1. Preliminary Hearing[2]
On December 26, 2013, a preliminary hearing was held. (SR. at 81-116.) Petitioner was represented at the preliminary hearing by Molly Rhodes, Esq., a court appointed public defender. Id. at 59, 81. At the hearing, the prosecution called Detective Scott Gottesman ("Det. Gottesman"). Id. at 81-110. Attorney Rhodes cross examined the witness and posed questions related to his search of Petitioner's vehicle. Id. at 98-104. The defense did not call any witnesses. Id. at 110. At the conclusion of the hearing, the court found reasonable cause to believe Petitioner had committed a felony, and ordered Petitioner held for action by the Grand Jury. (SR. at 116.)
2. Grand Jury and Superseding Indictment
In February 2014, Petitioner testified before the Grand Jury. (SR. at 875-888.) Petitioner was represented at the proceedings by Attorney Schupp, a court appointed public defender. Id. at 888.
On May 13, 2014, the District Attorney notified Petitioner's counsel that the case would be presented to the Grand Jury on May 20, 2014. (SR. at 67.)
In June 2014, the State obtained a six-count superseding indictment charging Petitioner with second degree murder in connection with the shooting of Sylvester Scott ("Scott") on December 23, 2013, at approximately 8:49 a.m. in the area of 81 Grand Street in Albany, New York.[3] (SR. at 296.) The superseding indictment also charged Petitioner with second degree conspiracy, two counts of second degree criminal possession of a weapon, second degree criminal possession of a controlled substance, and third degree criminal possession of a controlled substance. Id. at 297-302.
3. Suppression Hearing
On August 12, 2014, Petitioner filed a counseled omnibus motion. (SR. at 303-310.) Of relevance herein, Petitioner sought a Huntley and Dunaway-Mapp[4] hearing related to tangible
property recovered from a search of his vehicle and his oral statements. Id. The Trial Court scheduled a Huntley and Dunaway-Mapp hearing (hereinafter "suppression hearing") to resolve the motions to suppress statements and tangible property. Id. at 315-318.
The suppression hearing was held in Albany County Court on January 12, 2015, and January 15, 2015. (H. at 1, 115.) Petitioner was represented at the suppression hearing by Attorney Blanchfield. Id. at 2. During the hearing, the prosecution called six various witnesses. Id. at 9-248.
Trooper Hogan testified he was part of a team conducting surveillance of vehicles parked at the Desmond Americana Hotel on December 23, 2013. (H. at 11, 19-20.) While in transit, Trooper Hogan received a radio call that a target vehicle was "on the move." Id. at 20-23, 38. Trooper Hogan was advised that the "subjects of interest" were in a grey Hyundai and that a traffic stop was necessary to identify the subjects. Id. at 13-14, 23, 25. Trooper Hogan called for assistance from a "uniformed trooper," to effectuate a traffic stop. Id. at 15, 25. As a result of the traffic stop, the vehicle pulled into the parking lot of the Desmond Americana Hotel. (SR. at 15.)
Trooper Hogan arrived at the Desmond Americana at approximately 11:00 a.m. and found the Hyundai stopped on the west side of the hotel. (H. at 39.) Trooper Hogan also observed a 2003 Yukon "a short distance away in the parking lot in a parking space." Id. Trooper Hogan testified he did not enter or search the 2003 Yukon. Id. at 30-31, 47-48. Trooper Hogan drafted and signed a felony complaint and indicated Petitioner was in possession of "certain items at 11 in the morning." (H. at 17, 33.)
According to testimony by Detective Vogel, he interviewed Petitioner after Det. Quinlivan advised Petitioner of his Miranda rights. (H. at 171.) At that time, Petitioner had not been charged with any crime. Id. at 185-186.
Detective Haggerty ("Det. Haggerty ") testified he prepared a search warrant application for a 2003 GMC Yukon on December 23, 2013. (H. at 118-120.) Det. Haggerty stated that Judge Thomas Keefe executed the warrant on December 23, 2013, at 9:20 p.m. Id. at 123-124. The vehicle was searched at approximately 10:30 p.m. on December 23, 2013. Id. at 128. Detective Gottesman testified officers seized one Ruger 9-millimeter, one Glock 45-millimeter, ammunition, cocaine, and crack-cocaine from the vehicle. Id. at 141.
Petitioner did not call any witnesses and did not testify at the suppression hearing. (H. at 192.)
The Trial Court rendered a written decision denying Petitioner's motion to suppress. (SR. at 339-349.) Of relevance herein, the Trial Court held the prosecution did not establish probable cause for Petitioner's arrest. Id. at 345. However, applying the principles of attenuation, the Trial Court denied Petitioner's motion to suppress evidence seized from the Yukon. Id. at 345-347. The Trial Court held that the "pronounced break" between Petitioner's arrest and the search of the vehicle "dissipated" any "taint" and, further, the officers at the police department had sufficient evidence to establish probable cause for Petitioner's arrest. Id. at 346.
The Trial Court also denied Petitioner's motion to suppress his recorded statement noting, "the intervening act of transporting [Petitioner] from the scene of the Desmond to the police station, along with the Miranda warnings given to him by officers not involved in his arrest, "
were "intervening circumstances such that defendant could no longer be said to be under the influence of the illegal arrest." (SR. at 347.)
C. The Trial[5]
Jury trial began on May 6, 2015, in Albany County Court. (T. at 1.) The prosecution called approximately fifty witnesses including officers involved with telephone and physical surveillance, officers who responded and processed evidence from the scene of Scott's murder, and ballistics and DNA experts. (T. at 29-841.)
Investigator Robert Missenis ("Inv. Missenis") testified he was involved in an "eavesdropping" investigation related to Roberto Leandry ("Leandry") and Kareem Murray ("Murray") in the fall of 2013. (T. at 326-327, 441-442.) As part of that investigation, Inv. Missenis applied for an eavesdropping warrant with respect to Leandry's cellular telephone number (518) 629-6852 and Murray's cellular telephone number (347) 340-8947. Id. at 442-443.
Detective James Olsen ("Det. Olsen") testified he was investigating a burglary and sexual assault on December 20, 2013. (T. at 73-74.) During the course of his investigation, he spoke with the victim's boyfriend, Murray, at Albany Medical Center. Id. at 75. Det. Olsen offered Murray his name and telephone number and Murray responded, "no disrespect, I don't want it. I'm going to take care of it myself." Id.
Leandry testified he received a telephone call on December 20, 2013, from Murray. (T. at 461.)...
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