Quartararo v. Fogg

Decision Date09 February 1988
Docket NumberNo. 86 CV 2337 (ERK).,86 CV 2337 (ERK).
Citation679 F. Supp. 212
PartiesMichael QUARTARARO, Petitioner, v. Walter FOGG, Superintendent, Coxsackie Correctional Facility, et al., Respondents.
CourtU.S. District Court — Eastern District of New York

Barry Bassis, Phylis Skloot Bamberger, The Legal Aid Soc., Criminal Appeals Bureau, Federal Defender Services Unit, New York City, for petitioner.

Mark Cohen, Asst. Dist. Atty., Patrick Henry, Dist. Atty. of Suffolk County, Riverhead, N.Y., for respondents.

OPINION AND ORDER

KORMAN, District Judge.

I. INTRODUCTION

On April 20, 1979, John Pius, Jr. ("Pius"), a thirteen-year-old resident of Smithtown, New York, was murdered. Approximately seven months later, petitioner Michael Quartararo and his brother, Peter, were indicted and charged with Pius' murder.1 Petitioner and his brother were jointly tried, and following a six-week jury trial in the Suffolk County Court, both defendants were convicted of two counts of murder in the second degree, intentional murder in violation of Penal Law § 125.251 and murder resulting from a depraved indifference to human life in violation of Penal Law § 125.252. Petitioner, who was fourteen years old when the offense was committed, was sentenced to two concurrent terms of incarceration of nine years to life. The Appellate Division of the Supreme Court unanimously affirmed petitioner's conviction. People v. Quartararo, 113 A.D.2d 845, 493 N.Y.S.2d 511 (2d Dep't 1985). Chief Judge Wachtler denied leave to appeal to the New York Court of Appeals on December 18, 1985. People v. Quartararo, 66 N.Y.2d 1042, 499 N.Y.S.2d 1040, 489 N.E.2d 1312 (1985).

Petitioner then filed this petition for a writ of habeas corpus. Petitioner asserts five grounds for relief: (1) ineffective assistance of counsel; (2) denial of his motion for severance; (3) the insufficiency of the evidence; (4) prejudicial pretrial publicity; and (5) prosecutorial misconduct.2 Because the record plainly demonstrates that petitioner was deprived of the effective assistance of counsel and the petition must be granted for this reason, it is unnecessary to address the other issues raised by petitioner.3

The determination whether petitioner has been deprived of the effective assistance of counsel is not made in the abstract, but "in light of all the circumstances" and "on the facts of the particular case, viewed as of the time of the challenged conduct." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Similarly, the determination whether petitioner has made the requisite showing of prejudice is based on "the totality of the evidence before the judge or jury" because "some errors will have had a pervasive effect ... and some will have had an isolated, trivial effect" and because the resulting prejudice, if any, necessarily depends on the strength of the prosecution's case. Id. at 695-96, 104 S.Ct. at 2068-69. Accordingly, in order to assess whether petitioner was denied his Sixth Amendment right to counsel, a comprehensive review of the entire trial as it unfolded is necessary.

II. THE TRIAL
A. The Opening Statements
1. The Prosecution

The prosecution's opening statement was delivered by Assistant District Attorney Thomas Spota ("Spota"), without objection from either petitioner's or co-defendant's counsel. Spota outlined the case in the following manner (T. 23-26)4:

Ladies and gentlemen of the jury, the testimony that you will hear, is almost unmatched in the annals for the viciousness and senselessness of this particular crime.
It involves the brutal death of a thirteen year old boy, who fought desperately for his life, but was overpowered by four teenagers who beat him, stomped him, and shoved rocks down his throat into his mouth, forcing them down his throat into his airway, until his airway was completely blocked and he was unable to breathe any longer.
You may be asking yourselves why anyone would kill a young boy in such a horrible manner. The explanation given by one of the killers, Peter Quartararo, was that it was over a five dollar piece of junk, a motorless minibike.
The explanation given by one of the other defendants, in this particular case, Michael Quartararo, was that the defendants were high and they were on drugs and were drunk.
Ladies and gentlemen of the jury, John Pius was a thirteen year old boy, the only child of Barbara and John Pius. He was an athlete, who particularly loved lacrosse and who particularly loved football.
The Pius family was a close family. They resided over on Franklin Drive, in Smithtown. John, at the time of his death, attended the Nesaquake School.
On Friday, April 20, 1979, John Pius was off from school, at their inter-term recess. He went on a bike trip with some friends to Stony Brook Harbor. They made plans to go fishing the following morning.
In the afternoon, they played basketball. On his way home from the basketball game, his bike developed a flat tire.
John and his father worked on the bike in the garage, and in doing so, were taking the rear tire off. The gear and rear derailer became misaligned. At about eight-fifteen or so that night, John told his father that he thought he had fixed everything, that he was taking the bike for a test ride over to the Dogwood Elementary School.
John told his father that he thought that one of his best friends, Eddy Pembroke, might be at the school, since they were building a tree fort in the woods, adjacent to the school.
The testimony will show you, members of the jury, on his way to the school, young John Pius met four people; two of them are the defendants in this case; the other two are parties by the name of Thomas Ryan and Robert Brensic. Ryan and Brensic, and these two defendants, had just left the Dogwood Elementary School, after stealing a minibike from the Point of Woods development, and they were in the process of putting the minibike in Ryan's car.
Words passed between John Pius and one of the defendants, and Pius continued to the school. The defendants, Ryan and Brensic, took the minibike over to the Quartararo house, put it in the garage, and decided they would go back to find John Pius to tell him to keep his mouth shut about what he had witnessed.
You will hear that they did find Johnny, alone at the side of the school, and after telling John Pius to shut his mouth, a fight ensued on the side of the school. The four managed to beat Johnny to the ground, and with Peter Quartararo holding John's mouth open, they rammed stones down his throat, suffocating him.
The testimony will show that they then dragged him, carried him, and alternately dragged him again, across a piece of asphalt pavement, to a ballfield and, finally, to the back woods of the Dogwood Elementary School.
They hid John's body by covering it with leaves, and two logs. You will hear, while all of this was going on, his parents, John and Barbara Pius, were waiting at home for John to return.

Spota then told the jury that Peter Quartararo had confessed and had implicated himself and petitioner (T. 32, 33). Spota also told the jury that petitioner's father did not believe petitioner's denial of the crime or his brother's recantation of his earlier confession (T. 34). Spota, continuing without objection, told the jury that lie detector tests were administered to both defendants at their father's request and that the results were then given to their father, who then asked Peter to "restate what he considered to be the truth in this case, so that there would be cooperation by these defendants" (T. 34). Spota also informed the jury that Peter told the police that "he would go back to his original version of what had occurred" if petitioner first told the police what happened (T. 35).

The only allusion to admissible evidence against petitioner was contained in the following few sentences of Spota's opening statement (T. 35):

You will hear testimony ... from friends and acquaintances of Peter and Michael Quartararo ... one or two of whom are very close friends of the Quartararos ... how Michael Quartararo, in particular, and Peter Quartararo, detailed to them how, in fact, yes, they had killed John Pius, and the manner in which it was done.
2. The Defense

Spota's opening statement emphasized emotion rather than the evidence, and with good reason. There was no physical evidence linking petitioner to the murder and the testimony of the "friends and acquaintances" to which Spota alluded was vague, inconsistent and "presented credibility problems." People v. Brensic, 70 N.Y.2d 9, 22, 517 N.Y.S.2d 120, 509 N.E.2d 1226 (1987). The jury did not, however, learn this from petitioner's appointed counsel, William O'Leary ("O'Leary"), who waived his right to give an opening statement (T. 37). O'Leary would later explain that he does not give opening statements because the prosecution bears the burden of proof and the jury was so apprised during the process of jury selection (Evidentiary Hearing of September 2, 1987, at 92-93).

Nicholas Castellano ("Castellano"), who represented Peter Quartararo, did not adhere to this philosophy. Castellano began his opening by emphasizing the presumption of innocence (T. 38) and the prosecution's burden of proving the defendants' guilt beyond a reasonable doubt (T. 38-39). He raised the issue of whether Peter's confession was voluntary (T. 40) and gave an account of how the Quartararos and Ryan were questioned over a period of hours (T. 44-56), informing the jury that Peter had recanted his confession after his mother arrived (T. 59). Castellano also alluded to statements made by petitioner at a railroad station a few months after the murder, suggesting that petitioner was drunk at the time the statements were made (T. 62-63). Castellano told the jury that neither Ryan nor Brensic had confessed to any involvement in Pius' murder (T. 56) and alluded to the fact that Ryan had not been indicted (T. 43).

Castellano also accused the police of failing to apprehend the...

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