Pham v. Kirkpatrick

• Decision Date: 21 September 2016
• Docket Number: 9:15-CV-1370 (DNH)
• Citation: 209 F.Supp.3d 497
• Parties: Marc PHAM, Petitioner, v. M. KIRKPATRICK, Superintendent, Clinton Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of New York

209 F.Supp.3d 497

Marc PHAM, Petitioner,

v.M. KIRKPATRICK, Superintendent, Clinton Correctional Facility, Respondent.

9:15-CV-1370 (DNH)

United States District Court, N.D. New York.

Signed September 21, 2016

MARC PHAM, Petitioner, Pro Se, 12-A-4342, Clinton Correctional Facility, P.O. Box 2001, Dannemora, New York 12929

OF COUNSEL:

HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Attorneys for Respondent, The Capitol, 120 Broadway, New York, New York 10271, OF COUNSEL: DENNIS A. RAMBAUD, ESQ., Assistant Attorney General

DECISION AND ORDER

David N. Hurd, United States District Judge

I. INTRODUCTION

On September 18, 2015, petitioner Marc Pham ("Pham" or "petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (" Pet."); Dkt. No. 1–1, Affidavit in Support of Habeas Corpus Petition ("Pet. Aff."); Dkt. No. 1–2, Appendix A ("Appx. A"); Dkt. No. 1–3, Joint Appendix ("Joint Appx."); Dkt. No. 1–4, Memorandum of Law ("Pet. Mem.").¹ Petitioner challenges his 2012 judgment of conviction, following a jury trial in Albany County Court, of Rape in the First Degree, Criminal Sexual Act in the First Degree, Criminal Contempt in the First Degree, Criminal Contempt in the Second Degree, and Tampering with a Witness in the Fourth Degree. Pet. at 1. Petitioner raises six grounds for habeas relief:

(1) petitioner's right to confront witnesses was violated when the trial court received into evidence the "complainant's statements to the sexual assault forensic examiner accusing petitioner of raping and sexually assaulting her";

(2) petitioner's right to due process was violated when the trial court admitted the victim's statements to a witness as excited utterances;

(3) the trial court improperly admitted hearsay testimony relating to the victim's statements contained in a lost voice mail recording;

(4) the evidence was insufficient to support his convictions for first degree criminal sexual act and first degree contempt;

(5) counsel was ineffective for failing to object to hearsay evidence of "prior bad acts and uncharged crimes"; and

(6) counsel was ineffective because he failed to object to the witness's testimony relating to the "lost voice mail recording."

Respondent opposes the petition. Dkt. No. 12, Response; Dkt. No. 12–1, Respondent's Memorandum of Law ("Resp. Mem."); Dkt. No. 12–2, State Court Records ("SR"); Dkt. No. 13 and 13–1, Transcripts ("T").² For the reasons that follow, Pham's petition is denied and dismissed.

II. RELEVANT BACKGROUND

On November 4, 2011, an Albany County grand jury issued a Second Superseding Indictment charging Pham with one count each of Rape in the First Degree (Penal Law § 130.35(1) ), Criminal Sexual Act in the First Degree (Penal Law § 130.50(1) ), Criminal Contempt in the First Degree (Penal Law § 215.51(b)(iv) ), Tampering with a Witness in the Fourth Degree (Penal Law § 215.10(a) ), and two counts of Criminal Contempt in the Second Degree (Penal Law § 215.50(3) ). Dkt. No. 12–2, at SR 67-72. The charges stem from petitioner's actions on the evening of September 18, 2011, when he forcibly engaged in sexual intercourse with the mother of his two children, from whom he was estranged and prohibited from contacting. Id.

Three months prior to trial, the twenty-six year old victim passed away due to an unrelated heart attack. Dkt. No. 13–1, at T 3. Accordingly, she was unavailable to testify at trial, but her sister and brother-in-law testified on behalf of the prosecution. According to the victim's sister, Christine, the victim began dating Pham when she was fifteen years old. The relationship was "on and off" again for approximately nine years. During that time, the victim and petitioner had two children. Dkt. No. 13–1, at T 4-5, 30-31.

Christine and her husband, Maurice, testified that the couple's relationship was "violent at times with fights and constant arguments," and that they often had to pick the victim up in the middle of the night after she called to say that she and Pham had been fighting. Dkt. No. 13–1, at T 6-7, 32-33. This turbulent relationship resulted in an order of protection, dated September 27, 2010, which prohibited petitioner from having any contact with the victim or his children until September 28, 2011. Dkt. No. 13, at T 323-323. A second order of protection was served on petitioner on September 19, 2011, barring petitioner from having contact with the victim through March 20, 2012. Id. at T 331-333. According to Christine, her sister and petitioner had no relationship for a "significant period of time" before petitioner sexually assaulted the victim on September 18, 2011. Dkt. No. 13–1, at T 376.

On September 18, 2011, Maurice received a phone call from the victim. Maurice testified that she was crying and very upset on the phone. She told Maurice that Pham "had just raped her and he wouldn't leave the house." Dkt. No. 13–1, at T 8-10. Maurice immediately left and drove to pick up the victim. Id. at T 10. After arriving at the victim's house, Maurice observed petitioner putting his shirt back on as he entered through the back door. Id. at T 11. The victim was crying and pacing around the house saying "I can't believe you did this to me and why would you do this." She was calling petitioner a "bastard," a "scumbag," and a "psycho." Id. at 11-12. Maurice ultimately grabbed petitioner and slammed him to the ground, where he choked him "for like 30 seconds." Id. at T 13. At some point, the victim called the police and Maurice sat with petitioner on the couch, waiting for the authorities to arrive. Id. at T 13-14.

During this time, Christine noticed that her sister had called and left a voice mail. Id. at T 33-34. Christine testified that when she listened to the voice mail, she could hear her sister crying and screaming at Pham. According to Christine, her sister did not speak into the phone directly, but she could hear her saying "How can you do that to me? Why did you do that to me? You bastard." Id. at T 34-35, 43-44. After listening to the message, Christine called her sister but there was no answer. Id. She then drove to her sister's house where she saw the police talking to her. The victim told Christine that "she got raped." Id. at T 35, 44.

Officer Craig Whitney testified that he was the first officer at the scene. Dkt. No. 13, at T 337-338. The victim told him what happened and she agreed to go to the hospital for treatment and to have a sexual assault kit taken. Id. at T 342-343. After the victim left for the hospital, Officer Whitney arrested Pham. Id. at T 345.

Dr. Lindsay Stokes, a resident physician at the hospital, testified that she performed a sexual assault examination of the victim. Id. at T 353, 370. First, she took a complete history, which included a recounting of the events that evening. According to Dr. Stokes, the history is crucial to help diagnose and treat the patient, because it allows the examiner to determine where the patient was physically injured and to assess any psychiatric issues the person may have after being assaulted. Id. at T 358-360, 375,

Dr. Stokes went on to read her medical reports to the jury, which included the statements the victim made to her during the sexual assault examination. Id. at T 372-374. The victim told Dr. Stokes that Pham had come over that evening to pick up some of his belongings. While he was there, he grabbed her and started kissing and licking her face. She shouted at him to stop, but he "forced her to the floor and pulled off her pants and underwear." Id. at T 380. She then told Dr. Stokes that petitioner proceeded to forcibly engage in sexual intercourse with her. Id.

Dr. Stokes also testified to performing a physical examination of the victim. Id. at T 381. She observed abrasions on the victim's right shoulder blade, as well as small dots similar to bruises on her wrists, indicating that the area may have been subjected to force. Id. While Dr. Stokes did not observe any tearing or bleeding to the victim's genital area, she stated this was not inconsistent with the victim's account since "the majority of sexual assaults" do not result in such injuries because the vaginal area is made of "tissue that's meant to stretch." Id. at T 388-389. The victim was later released to her home with her sister Christine. Id. at T 388.

Between September 19 and September 23, 2011, Pham called the victim over two dozen times from jail. Dkt. No. 13–1, at T 42-43; Dkt. No. 14, Audio CDs.³ The victim refused to take all but two of the calls. Id. During the two phone calls, petitioner urged the victim not to press charges and to tell the police she overreacted because they got into an argument. Id. The victim said she would not say that, but ultimately told petitioner she did not plan to talk to anybody. Id. She then told petitioner to stop calling her.

Finally, after the victim passed away in April 2012, Christine testified to visiting Pham in jail to tell him that his kids were safe and that she and Maurice were going to take custody of them. Dkt. No. 13–1, at T 36-37. According to Christine, petitioner seemed primarily concerned with the rape case, and asked if she had spoken to the District Attorney. Id.

Pham did not testify at his trial. His only witness was a friend who testified that the victim came to his house to pick petitioner up three or four times during the month of September 2011. The friend claimed their interactions were always "cordial." Id. at T 71-72.

On July 12, 2012, Pham was convicted of all charges against him.⁴ Id. at T 167-170. He was sentenced on September 20, 2012 to an aggregate determinate prison term of twenty-two years, followed by fifteen years post-release supervision. Id. at 186-187.

Pham appealed his conviction to the Appellate Division, Third Department.

Dkt. No. 12–2, at SR 1-63. On June 12, 2014, the Appellate Division affirmed his conviction, and the New York Court of Appeals denied leave to appeal. People v. Pham , 118 A.D.3d 1159, 987...