Rodriguez v. Heath

• Decision Date: 13 October 2015
• Docket Number: No. 12–CV–824 (ERK).,12–CV–824 (ERK).
• Parties: Ronald RODRIGUEZ, Petitioner, v. Superintendent Phillip HEATH, Respondent.
• Court: U.S. District Court — Eastern District of New York

138 F.Supp.3d 237

Ronald RODRIGUEZ, Petitioner,

v.Superintendent Phillip HEATH, Respondent.

No. 12–CV–824 (ERK).

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

Signed Oct. 13, 2015.

Ronald Rodriguez, pro se.

Andrea M. Digregorio, Nassau County District Attorney's Office, Mineola, NY, for Respondent.

MEMORANDUM & ORDER

KORMAN

, District Judge.

On October 3, 2006, allegedly in self-defense, petitioner Ronald Rodriguez shot and killed Bilah McGraw during a struggle in a dark alleyway. Petitioner was charged with second-degree murder, first-degree manslaughter, second-degree manslaughter, and third-degree criminal possession of a weapon. The jury acquitted him of the first two offenses—the only ones on which the jury was instructed on the defense of justification. Rodriguez was convicted of second-degree manslaughter and third-degree criminal possession of a weapon.

Consistent with his position on direct appeal, petitioner principally argues that the trial judge erred by refusing to charge justification as to the manslaughter offense of which he was ultimately convicted, and that this error—which eliminated the prosecution's burden to "prove [the] absence [of justification] to the same degree as any element of the crime charged," People v. McManus, 67 N.Y.2d 541, 547, 505 N.Y.S.2d 43, 496 N.E.2d 202 (1986)

—violated his right to have the jury determine whether the prosecution had established every element of the offense beyond a reasonable doubt, see Brief for Defendant–Appellant at 21–22, People v. Rodriguez, 911 N.Y.S.2d 79 (2010) (No. 2008–11075) [hereinafter Pet'r's App. Br.]. I proceed to discuss the details that led to McGraw's death and the legal questions arising from the trial judge's failure to instruct the jury on justification, as well as other, secondary issues raised in this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

On the night in question, petitioner was with a group of friends outside of 103 Terrace Avenue in Hempstead, New York. Trial Tr. 1047–48; Pet'r's Video Statement 2:09, 3:34, Sept. 5, 2007 [hereinafter Video]. Terrace Avenue, nicknamed "Terror Avenue," is known as a "rough area" with gang activity. Trial. Tr. 976, 1072. Petitioner is five feet, two inches tall—the source of his nickname, "Shorty"—and, at that time, weighed approximately 125 pounds. Id. at 1444.

At some point in the evening, petitioner tossed two empty glass bottles into the street, causing them to shatter. Id. at 1048. Seeing this, McGraw, who weighed 249 pounds and was five feet, seven inches tall, id. at 1643, approached the group with whom petitioner was standing "in a violent manner," id. at 1049. He yelled at petitioner for "five or ten minutes," claiming that petitioner was "making the block hot"—i.e., attracting unwanted police attention—and accusing petitioner of not being from the neighborhood. Id. at 1049–51. McGraw also said that he was a member of a gang known as "T.A.P." (or "Terrace Avenue Posse"). Video 4:59. In his written confession, which was offered by the prosecution, petitioner told police that "[w]hen Bilow [the victim] came over, I could tell he was dusted. Being dusted means you are high on PCP." Trial Tr. 1354. The medical examiner confirmed at trial that McGraw had phencyclidine (PCP) in his bloodstream that night, id. at 1643, and that PCP is a dissociative narcotic which is known to cause agitation, confusion, desensitization, paranoia, and aggression, see id. at 1734–37. After McGraw yelled at petitioner for throwing the bottles, petitioner "was pretty much submissive, like he didn't want to argue with [McGraw]. He was basically like trying to say, like, okay, you're right, you're right. I apologize, I didn't mean to." Id. at 1051. McGraw eventually left. Id.

A few hours later, petitioner and his friends observed McGraw walking back in their direction with a man named Travis, peering into buildings as he passed, as though looking for someone. Id. at 1055–56, 1059. McGraw had one hand in his pants pocket and one hand in his coat. Id. at 1055. Petitioner did not see if the two men were carrying weapons, but believed from their body language that they were. Video 11:00. Petitioner explained to police that he was scared of McGraw. Id. at 6:40; Trial Tr. 1449. Another witness, called by the prosecution, testified that she also believed the two men were concealing weapons, and was frightened of them. Trial Tr. 1084–87. Upon seeing McGraw and Travis, petitioner ran in the opposite direction, turning left down an alleyway that allowed access to Bedell Street, which runs perpendicular to Terrace Avenue. Video 6:40; Trial Tr. 1056. The lighting in the alley was broken, and it was dark. Trial Tr. 976–77.

Petitioner stated that when he turned the corner of the alley, he found that his egress was blocked by another one of McGraw's friends, "Booboo," who was holding a twelve-gauge shotgun. Video 6:49. No witnesses had a view down the alley, and Booboo's involvement was neither confirmed nor contradicted at trial. The lead detective on the case stated at a pretrial hearing that an individual who goes by the nickname "Booboo" lives at 100 Terrace Avenue. Hr'g Tr. 133. She "may have" run a background check on him, id., but never talked to him, Trial Tr. 1452. She also neither asked Travis about Booboo, Trial Tr. 1452, nor asked him whether he and McGraw had "intended to rob or otherwise beat up" petitioner, id. at 1408.

The trial testimony was also unclear as to whether petitioner's exit from the alley was entirely blocked, or if there may have been a small gap in a back fence through which he could have exited. See, e.g., Trial Tr. 967–971, 979–81, 1395–96. Nevertheless, believing himself unable to pass safely, Video 6:49, 9:27, petitioner turned back toward the Terrace Avenue entrance to the alley and, on the way, picked up a shotgun that, according to his video and written confessions, he knew either one of his friends or he and a group of his friends had stored in the alley (along with a stash of drugs), Video 7:39; Trial Tr. 1355–56. Petitioner then confronted McGraw and Travis where the alley met the street. Trial Tr. 1156–57. He allegedly told Travis, "holla at your man," by which he meant that Travis should speak to McGraw on petitioner's behalf. See Video 8:50, 10:14. Petitioner explained to police that he was trying to defuse the situation by telling Travis, with whom petitioner had a distant familial relationship, to calm McGraw down. Id. at 8:52, 10:10. He was also trying to communicate to Travis: "[W]e supposed to be family. Like, why are you trying to get me?" Id. at 9:20. A witness said she saw McGraw turn towards the alley and raise his hands in a "fist motion." Trial Tr. 1060. Petitioner allegedly was holding the gun "on the side" of his body at this point, Video 8:55, although another witness believed that she saw a shotgun barrel sticking out from the alley, Trial Tr. 1060. McGraw turned into the alley and grabbed for the gun, Trial Tr. 1061, 1089, while Travis fled, id. at 1157; Video 10:32.¹

No witnesses saw the subsequent struggle in the alleyway. According to petitioner, McGraw shoved him against a wall and wrestled for control of the gun while also trying to strike him in the head with the butt of the weapon. Video 10:32, 11:46. At some point during the fight, the shotgun "went off," hitting McGraw in the chest and killing him. Id. at 11:37.² The medical examiner testified that, because of the absence of stippling and the presence of satellite perforations and scalloping, the shot that killed McGraw was likely not fired from very close range, and that the trajectory of the shot was downward and to the right, entering from the left side of McGraw's chest. Trial Tr. 1649–51, 1673.

McGraw's body was found ten feet into the alley. Id. at 959, 993, 1283. Because the medical examiner testified that McGraw would not have been able to walk more than three feet after being shot, id. at 1724, the location of his body provided some support for petitioner's claim that McGraw had forced him backward into the alley during the fight. Video 10:36. Petitioner claimed to remember McGraw continuing to attack him for several minutes after being shot, id. at 12:19, although the medical examiner testified that the gunshot wound

would have killed McGraw almost instantly, Trial Tr. 1679.

At the conclusion of a two-and-a-half week jury trial, defense counsel asked the judge to add the defense of justification to all four charges against his client. Trial Tr. 1778–85. The judge gave the justification instruction as to second-degree murder and first-degree manslaughter, but denied the charge, without explanation, as to second-degree manslaughter and third-degree criminal possession of a weapon. Id. at 1792–93. The jury acquitted petitioner of the first two offenses but convicted him of second-degree manslaughter and third-degree criminal possession of a weapon. Id. at 1986–87. The trial judge sentenced him to the maximum term of imprisonment allowable under law: seven-and-a-half to 15 years for manslaughter, and a concurrent sentence of three-and-a-half to seven years for criminal possession. St'g Tr. 15.

On appeal, the Appellate Division rejected petitioner's argument that the refusal to charge justification as to manslaughter in the second degree "so infected the proceedings as to deprive appellant of due process and a fair trial." Pet'r's App. Br. 21. In explaining its reasoning, the panel stated only that "no reasonable view of the evidence in this case supported [a justification] charge with regard to manslaughter in the second degree." Moreover, it held that the justification defense did not apply to third-degree criminal possession of a weapon. People v. Rodriguez, 77 A.D.3d 975, 911 N.Y.S.2d 79, 79 (2010)

, perm. app. denied, 16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188 (2011).

DISCUSSION

The various degrees of homicide as defined in the New York Penal Law do not include lack of...