Silva v. Keyser

• Decision Date: 25 September 2017
• Docket Number: 16–CV–7609 (JGK)
• Citation: 271 F.Supp.3d 527
• Parties: Santo Carrero SILVA, Petitioner, v. William KEYSER, Respondent.
• Court: U.S. District Court — Southern District of New York

271 F.Supp.3d 527

Santo Carrero SILVA, Petitioner,

v.William KEYSER, Respondent.

16–CV–7609 (JGK)

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

Filed September 26, 2017

Signed September 25, 2017

Santo Carrero Silva, Napanoch, NY, pro se.

Nancy Darragh Killian, Bronx District Attorney, Bronx, NY, for Respondent.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The petitioner, Santo Carrero Silva, brings this pro se petition ("Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in the New York State Supreme Court, Bronx County, the petitioner was convicted of murder in the second degree in violation of N.Y. Penal Law § 125.25(1) and criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(1)(b). The petitioner argues that (1) the verdict was against the weight of the evidence because the prosecution failed to disprove the petitioner's justification defense beyond a reasonable doubt; (2) the trial court improperly admitted photographs of the victim's autopsy; (3) the prosecution presented improper argument during summation; (4) the petitioner's sentence of an aggregate term of twenty years to life is excessive; and (5) he received ineffective assistance of counsel at trial. For the reasons explained below, the petition for a writ of habeas corpus is denied.

I.

A.

The record reflects the following relevant facts.

In March 2010, the petitioner and David Morales ("Morales") lived in separate units on the second floor of an apartment building located at 1488 Vyse Avenue in the Bronx, New York ("1488 Vyse"). See Transcript of Garcia Testimony ("Garcia Tr.") 121–24, 129.¹ Gloria Contreras ("Contreras"), who lived on the building's first floor, testified that in the early morning hours of March 21, 2010, she heard Morales tell the petitioner to turn off the music playing in the petitioner's apartment. See Contreras Tr. at 150, 153–55. Contreras allegedly heard the petitioner and Morales engage in a fistfight, and then heard the petitioner say "I'll be back," exit the building, and return ten minutes later. Id. at 154–55. Contreras testified at trial that after hearing a knock on Morales's door, she heard the petitioner demand that Morales exit his apartment. See id. at 155–57. She testified that she heard Morales exit and soon after heard a gunshot. See id.

Louie Garcia ("Garcia"), Morales's nephew, testified that he received two phone calls from Morales in the early morning hours of March 21, 2010. Garcia Tr. 125–26, 136–38. Garcia stated at trial that during the first phone call Morales told him about an altercation between him and the petitioner. See id. Garcia testified that when he received the second phone call from Morales he could only hear Morales's breath. See id. at 125–26. According to Garcia's testimony, Garcia then called Morales, but received no answer. See id. at 126. When Garcia called Morales a second time, an unidentified person allegedly answered the phone and explained to Garcia "what happened." Id. Garcia also testified that Morales's children "were hiding under the sheet in [Morales's] bed" when Garcia arrived at 1488 Vyse. Id. at 127.

Morales died soon after the confrontation. Smiddy Tr. 207–210; Brady Tr. 25. Dr. Monica Smiddy ("Dr. Smiddy") of the Office of the Chief Medical Examiner testified that Morales died from a gunshot wound

, which gunshot entered the front of his chest and exited out of his back. Smiddy Tr. 204–08, 215.

The police arrived at 1488 Vyse on the morning of the altercation. Cabrera Tr. 21–22. The police found Morales's body in the second floor hallway next to a discharged bullet and an eighteen-inch-long baseball bat. Pantoja Tr. 52, 63–66. They also found six live bullets in the petitioner's apartment. See id. at 63–65. The petitioner was arrested that morning and taken to the hospital for injuries sustained during the altercation. See Cabrera Tr. 18, 22–23.

That same day, in a statement discussed below, see infra I.B, the petitioner informed the police that he had placed a firearm in a sewer behind 1481 Vyse Avenue. See Brady Tr. 26–28. The police later recovered a partially loaded firearm from that location. See id. Detective Matthew Parlo of the Firearms Analysis Section testified that the discharged bullet found next to Morales's body was fired by that gun. See Parlo Tr. 235.

B.

While hospitalized, the petitioner provided four statements—three to the police and one to an assistant district attorney.

On the evening of March 21, 2010, Detective Enrique Garcia provided the petitioner with two separate statements. See O'Neil Tr. 104–06, 111–13. Detective Garcia wrote these statements in English and read the statements to the petitioner in Spanish. See id. at 112. The petitioner signed the first statement at 7:15 p.m. (the "First Statement") and signed the second statement at 8:00 p.m. (the "Second Statement").

See O'Neil Tr. 111–113. The statements alleged that in the days preceding the shooting the petitioner told Morales that Morales had to "stop selling drugs or [the petitioner would] tell the landlord." See id. at 112. The petitioner also alleged that he was assaulted and thrown down the stairs by Morales in their apartment building in the early morning hours of March 21, and soon after retreated outside to retrieve a weapon from "a little box in the back" of 1488 Vyse. Id. at 111–12. The petitioner asserted that when he returned to the building's second floor, he was attacked in the hallway by Morales with a "white object that looked like a knife." Id. at 112. The petitioner then "pulled the gun out and fired one shot" before leaving the building and hiding the gun "in the subway grating." Id. at 112–13.²

The petitioner provided a third statement orally to Detective Eddie Cabrera on the morning of March 23, 2010 (the "Third Statement"). See Cabrera Tr. 17–20. In this statement, the petitioner reiterated that Morales had been angry with the petitioner in the days preceding the altercation because the petitioner had told Morales to stop selling drugs at 1488 Vyse. See id. at 19. The petitioner also reasserted that Morales had attacked the petitioner with a knife on the morning of March 21. See id. In the Third Statement, the petitioner claimed that he retrieved the gun from his "room," rather than from the back of 1488 Vyse, and that he then shot Morales. Id.

The petitioner provided his final and most detailed statement later that same day to Assistant District Attorney Leah Takantzas (the "Fourth Statement"). See Takantzas Tr. 94–99.³ In the statement, which was video-taped and played for the jury, the petitioner asserted that Morales had attacked him and threw him down a set of stairs at 1488 Vyse because the petitioner had threatened to tell their landlord that Morales was selling drugs in the building. See Pet't'r Br. in Supp. at 2; Resp't's Opp'n Mem. at 7. According to the statement, the petitioner then left the building to retrieve from a "small wood house" in the back of 1488 Vyse a firearm he had found years earlier. Pet't'r Br. in Supp. at 10; see also id. at 6. The petitioner claimed that he had not intended to use the firearm against Mr. Morales. See id. at 10. The petitioner then alleged that he returned to the building and tried to enter his apartment so that he could call an ambulance and "take care of [his] wounds

." Id. at 2–3, 10. At this moment, the petitioner claimed, Morales "attacked [the petitioner] from the back" with a weapon. Id. at 3. The petitioner asserted that there "was no chance to talk" and that he "fired a single bullet in self-defense." Id. The petitioner stated that he had aimed at Morales's leg. See

id. at 12.

C.

On April 9, 2010, a Bronx County grand jury returned an indictment charging the petitioner with one count each of murder in the second degree, manslaughter in the first degree, and possession of ammunition; and two counts of criminal possession of a weapon in the second degree. See Resp't's App. Div. Opp'n Br. at 2–3.

At trial, in addition to the statements set out above, see supra I.A, the prosecution introduced into evidence two photographs showing the entry and exit wounds

in Morales's heart. See Smiddy Tr. 209–10. The photographs were offered in conjunction with testimony from Dr. Smiddy that the entry and exit wounds were of similar height within the heart, which cast into doubt the petitioner's assertion that he had aimed the firearm downward at Morales's leg. See

id. at 196–210. The trial court admitted the photographs on the theory that they corroborated Dr. Smiddy's testimony. Id. at 198–99. The prosecution also offered into evidence all four statements that the petitioner made following his arrest. See O'Neil Tr. 109–113 (First and Second Statements); Cabrera Tr. 17–20 (Third Statement); Takantzas Tr. 94–97 (video recording of the Fourth Statement).

The petitioner did not present any evidence. Tr. 246–47, 252. Instead, the defense sought to impeach Gloria Contreras on cross-examination. See Pet'r's App. Div. Br. at 20–23; Contreras Tr. 174–184. Defense counsel elicited from Contreras an admission that her direct examination was the first time that she had asserted that the initial altercation between the petitioner and Morales was because of music. See id. at 177–79.

In its summation, the prosecution argued that the petitioner killed Morales in part because the petitioner was frustrated with his living conditions. See Summation Tr. 32, 43. The State argued that the petitioner was motivated to kill Morales because the petitioner lived in a "hovel," and, to that end, the State had introduced photographic evidence during the trial of the petitioner's living arrangements. See id. at 32; see generally Pantoja Tr. 56–67 (introduction of various photographs taken of the scene).

On June 18, 2013, the jury found the petitioner guilty of one count of second degree murder and one count of second degree criminal possession of a weapon, and not guilty of one count of criminal...