Parker v. Graham

• Court: U.S. District Court — Western District of New York
• Writing for the Court: DAVID G. LARIMER United States District Judge
• Decision Date: 05 February 2021
• Docket Number: 18-CV-6106L
• Citation: Parker v. Graham, 18-CV-6106L (W.D. N.Y. Feb 05, 2021)
• Parties: MARQUIS PARKER, Petitioner, v. SUPERINTENDENT HAROLD D. GRAHAM, Respondent.

MARQUIS PARKER, Petitioner, v. SUPERINTENDENT HAROLD D. GRAHAM, Respondent.

18-CV-6106L

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

February 5, 2021

DECISION AND ORDER

Petitioner, Marquis Parker ("Petitioner"), has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner was convicted after trial of shooting and injuring two police officers who responded to a home invasion robbery in Rochester, New York. Parker is currently serving an aggregate 50 year sentence, with five years of post-release supervision, following his conviction of two counts of assault in the first degree, assault in the second degree, attempted robbery in the first degree, burglary in the first degree, and criminal possession of a weapon in the second degree.

The petition for writ of habeas corpus is in all respects denied.

BACKGROUND

I. Factual Background

On December 1, 2009, Jaqueline Anderson ("Anderson") received a call from Nixon Elian ("Elian"), a man she knew, who advised her that he was coming to her apartment to repay a loan. (Trial Tr. at 457-58). At approximately 11:14 p.m., Elian arrived at Anderson's apartment. (Id. at 459-60). As Elian entered, Anderson attempted to close the door, but "a foot stopped the door," and a second man forced his way into her apartment. (Id. at 460-61). She testified that this second man was wearing a dark hoodie, closed around his face, with a "little bit" of hair "sticking out of the hood," and that he was wearing gloves. (Id. at 462-63, 470).

According to Anderson, upon entry, Elian pointed a handgun at her face and announced a robbery. (Id. at 462, 464). At first, Anderson told the men that she had no money. (Id. at 466). Then, in an effort to get at least one of the men to leave, she told the men that she had money in her car, parked on the street just below her apartment window. (Id. at 467). Anderson testified that Petitioner then took her car keys and left the apartment. (Id. at 468-69). It was approximately 11:22 p.m. (Id. at 320).

After Petitioner left the apartment, Anderson testified that Elian pinned her on the floor, choked her, and asked what would happen if he let her live. (Id. at 469). She pretended to be unconscious, but Elian slapped her to wake her up, and asked how Petitioner was to reenter the building. (Id. at 470-71). When Petitioner returned, Anderson testified that Petitioner "pistol whipped" her—sharing the same gun with Elian—and threw her on the couch. (Id. at 471-72).

Meanwhile, the building superintendent, Paul Berger ("Berger"), had seen two men enter the building on the video surveillance system—one man in a light hooded sweatshirt and one man in a dark hooded sweatshirt. (Id. at 311). He testified that something about the men "just didn't seem right"—the men appeared to look away from the camera and their hoodies were closed around their faces. (Id. at 315-16). Berger then walked up to Anderson's apartment and heard what seemed to be screaming. (Id. at 316-17). He returned to his apartment and called the police. (Id. at 318).

While waiting for the police, Berger observed one of the men, who was in a dark hoodie, exit the apartment, walk downstairs, exit the front door, and walk to the left. (Id. at 321, 322).The man ran around the building and entered Anderson's car. (Id. at 323). He then tried to re-enter the apartment building with a key. (Id. at 324). Berger, who was outside at the time, told the man that the keys would not open the building. Rather, as Berger testified, an individual would need an access code or to ring a buzzer in order to gain access to the building. (Id. at 324-25). The man walked away but returned and was buzzed back into the building. (Id. at 325).

At 11:32 p.m., Rochester Police Officers Daniel Brochu and Luca Martini arrived at the apartment building where they were met by Berger. (Id. at 326). Berger explained what he had observed and took the Officers to Anderson's apartment. (Id.). When Officer Martini knocked on the apartment door, Officers Martini and Brochu could faintly hear a conversation inside the apartment. (Id. at 410). Officer Brochu stood to the left of the doorway and Officer Martini to the right. (Id. at 409).

Inside the apartment, Elian asked Anderson if she was expecting anyone. Elian then instructed her to ask who was at the door and she complied. (Id. at 473-74). Office Martini announced it was the police. According to Anderson, Elian then put the gun to her head and "escorted" her to the door, telling her to "act calm and get rid of [the police]." (Id. at 474). Anderson testified that during this time, the other man was "close" to her. (Id.).

Anderson opened the door a crack, but then quickly threw the door open, ran past the Officers and yelled: "'Get 'em.'" (Id. at 412-13). Immediately, Officer Martini was "confronted with a revolver in [his] face." (Id. at 439). He testified that he swatted the gun away with his left hand, heard a gunshot, and immediately felt pain in his left hand. (Id. at 440). He spun around and ran for cover. (Id.). As he turned, he felt pain in his right arm. (Id. at 441). Officer Martini then went into a vacant apartment behind him. (Id.). Likewise, Officer Brochu testified that as Anderson ran out of the apartment, he heard a gunshot and saw Officer Martini swat his left hand.(Id. at 413-14). He drew his gun and ran to take cover. (Id. at 414-15). As he ran, he heard two more shots, then he heard a fourth shot and felt severe pain in his right leg. (Id. at 416). Both officers would later testify at trial that they both had received gunshot wounds during the encounter.

Soon thereafter, the surveillance video showed the intruder (identified as Elian, the man in the light hoodie) come out of the apartment, run down the stairs, out the front entrance, and across the street. (Id. at 328). The officers did not see anyone else come out of the apartment.

Inside Anderson's apartment, one of the windows leading to the fire escape was broken from the inside out and there was glass on the fire escape. (Id. at 255). The surveillance video shows that by 11:36 p.m., the fire-escape stairs were down, an individual had gone down the stairs and headed south. (Id. at 333-34). Police also found a black hooded sweatshirt inside the apartment, which Anderson identified as the sweatshirt Petitioner was wearing. (See id. at 251-52).

II. Trial

During trial, Anderson formally identified Petitioner as the second man who entered her apartment the night of December 1, 2009. (Id. at 477). During cross-examination, she testified that she learned the Petitioner's name through the "media" and from seeing photos at the District Attorney's Office. (Id. at 497). After eliciting this testimony, Petitioner's counsel objected that an identification procedure had not been included in the prosecution's CPL § 710.30 notice. (Id.). The court directed counsel to continue with the cross-examination. (Id. at 498).

Through further cross-examination it was discovered that Anderson had been shown Petitioner's photograph by then-Assistant District Attorney Sandra Doorley. (Id. at 498). She also testified that she had seen a photograph of Petitioner on television "at least ten" times and that she assumed it was Petitioner's "mug shot." (Id. at 499).

The trial court excused the jury and Petitioner's counsel moved for a mistrial on the basis that Anderson's in-court identification of Petitioner had been tainted and that the People had violated the notice provision of CPL § 710.30. (See id. at 500). After a hearing on the issue, the court denied the mistrial motion finding that there was no "identification" procedure involving Anderson under CPL § 710.30. As such, no notice was required. (See id. at 560-61).

When cross-examination of Anderson resumed, she acknowledged that immediately following the robbery she could not identify the second intruder. (Id. at 589-90). She testified that she later saw his photograph "laying around the desk" during one of her meetings with the prosecutors. (Id. at 590-91). However, she also testified that "what really made [her] know that [the second intruder] was [Petitioner] was the still shot" from the surveillance video that was shown to her just before she began testifying at trial. (Id. at 590).

The prosecution also presented DNA evidence at trial linking Petitioner to the crime scene. Specifically, DNA from a saliva stain found on the dark hooded sweatshirt recovered from the apartment was compared to a DNA sample Petitioner provided to the police. The results showed that Petitioner's DNA was the "major contributor" to the stain. (Id. at 871-72). Testimony also showed that, "[t]he probability of randomly selecting an unrelated individual having the same DNA profile as the major component of [the sweatshirt] and [Petitioner] is less than one and 4.73 sextillion." (Id. at 874).

Finally, the prosecution provided evidence of the shots fired at the crime scene. A officer arriving at the scene shortly after the shooting, chased Elian and saw him toss a firearm in a yard between two nearby houses. The testimony of the wounded officers showed that the first three shots hit Officer Martini—the first bullet passed through his hand, the second and third were to hisupper right arm and his chest where they were recovered during surgery. (See Trial Tr. at 440-48). The fourth and final bullet hit Officer Brochu's right leg as he ran for cover. (See 416-17).

At the conclusion of trial, the jury convicted Petitioner of two counts of assault in the first degree, attempted robbery in the first degree, burglary in the first degree, criminal possession of a weapon in the second degree, and assault in the second degree. The jury acquitted Petitioner of criminal possession of stolen property in the fourth degree and attempted rape in the first degree. On March 3, 2011, the trial court sentenced Petitioner to 20 years imprisonment for each of the first degree assault convictions...