Strzelecki v. Cunningham

• Decision Date: 15 November 2019
• Docket Number: Case No. 15-cv-0133 (SFJ)
• Parties: MICHAEL STRZELECKI, Petitioner, v. ROBERT CUNNINGHAM, Respondent.
• Court: U.S. District Court — Eastern District of New York

MICHAEL STRZELECKI, Petitioner,
v.
ROBERT CUNNINGHAM, Respondent.

Case No. 15-cv-0133 (SFJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 15, 2019

Memorandum and Order

FEUERSTEIN, S., Senior District Judge:

I. Introduction

Presently before the Court is the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254,¹ of Petitioner Michael Strzelecki ("Petitioner" or "Strzelecki"), seeking the reversal of his state court conviction. (See ECF No. 4; hereafter, the "Petition".) Respondent Robert Cunningham ("Respondent") opposed the Petition asserting Petitioner's "claims do not merit relief." (Answer (ECF No. 9), ¶2.) For the reasons that follow, the Petition is DENIED.

II. Background

The following facts are adduced from the instant Petition and the underlying record,² the parties' familiarity with which the Court assumes.

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A. Facts Giving Rise to Petitioner's Conviction

Petitioner had been married to Joann Springer (hereafter, "Springer"), with whom he had two daughters, "L" and "S". In 2008, L was seven years old; sometimes she would sleep in her parents' bedroom. One night in January 2008, L was sleeping in her parents' bed when she was awakened by her father, Petition, who was touching her vagina with something fluffy on his finger, which item he put inside L's vagina. Her underpants had been pulled down. When L asked Petitioner what he was doing, he replied, "Nothing."³ Petitioner also instructed L not to tell anyone about the incident.

In 2010 Petitioner and Springer were experiencing marital strife and sleeping in separate bedrooms. Springer wanted Petitioner to move out of the marital home, but he refused. Venting her frustration about the situation, Springer sent an email to her sister, Wendy Ellers (hereafter, "Ellers") in late October 2010 stating, among other things, that she needed to do something drastic so Petitioner would believe Springer wanted him to move out.

In the beginning of November 2010, a former tenant in Petitioner's home reported that Petitioner abused his daughters. Thereafter, on November 2, 2010, an investigation ensued with two detectives, Ness and Desmond, and a CPS worker, Freely, going to the Strzelecki residence to investigate the complaint. Petitioner and Springer permitted Ness to speak with L, who was then 9 years old, and S, who was then 13 years old.

L initially denied that she had been touched inappropriately. Thereafter, the detectives and Freely spoke with Springer, who recounted that on L's eight birthday, L had told Springer that she thought she had something pink stuck in her vagina. This prompted Springer to look at L's vagina, which, she told Ness, looked different from her other daughter's vagina. Explaining

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to Springer what the CPS report indicated, Ness requested that Springer bring her daughters to the police precinct the following evening to allow the detective to speak to L and S again. Springer complied.

On November 3, 2010, when Ness spoke with L the next evening at the precinct, L told the detectives about telling her mother of the pink, fuzzy item on Petitioner's finger that Petitioner placed in her vagina. She acknowledged that her father, Petitioner, had given her a bad touch. L told Ness that she (L) did had not disclose earlier what had occurred because she was afraid that she would get in trouble. L also described a time when she was awakened by Petitioner touching her vagina, which Ness understood to be a separate incident. Following this second interview, Ness had Springer contact Petitioner to request he come to the precinct, which he did.

Petitioner was brought to a room where Ness read Petitioner his rights, which he indicated he understood and waived. After Ness explained what had been reported, Petitioner initially denied any inappropriate touching of L, but then explained that any such touching could have been accidental, claiming he was a restless sleeper. He told Ness that, if he could afford it, he would be willing to take a lie detector test. Ness offered to have the police department polygraph section administer such a test upon Petitioner, which Petitioner accepted.

The test was administered on the evening of November 4, 2010 by Detective Shea ("Shea"). Shea advised Petitioner: about the process of the test; the need to complete paperwork, including a release form stating Petitioner's consent to the test, a medical form, and a background form; of his constitutional rights and his rights regarding the examination; and, that he was not under arrest. Strzelecki waived his rights and voluntarily submitted to the polygraph test. After the examination was completed and Shea had reviewed the results, he spoke with

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Petitioner, who then stated he had accidentally touched L's vagina three years earlier. Thereafter, Ness retrieved Petitioner from the examination room, brining him to a conference room where he was interviewed by the detectives.

During that subsequent interview, Petitioner discussed three different incidents where he touched L's vagina. Thereafter, a written statement was taken; after being advised of his rights and waiving them, Petitioner reviewed and signed the statement. (See Trial Court Files (ECF No. 9-6) at 12-13.) Petitioner was then arrested. In lieu of speaking with his wife and daughters after his arrest, Petitioner wrote them a letter, stating: "I am sorry for this mess and I hope to see you soon." (See id. at 11.)

B. State Court Procedural Background

A jury trial commenced on October 7, 2011, in the County Court of Suffolk County (hereafter, the "County Court" or "trial court"). (See id. at 104-09.) Defense counsel claimed that because of the situation in the Strzelecki household, L had reason to fabricate allegations of sexual abuse against her father, Petitioner. (See Oct. 7, 2011 Trial Tr., 28, 32-33.) The People's witnesses included, inter alia, Detectives Shea and Ness, and L. (See id. at 108-10.) As part of its case-in-chief, the People introduced into evidence, inter alia, Petitioner's signed statement and his letter to his family. (See id. at 108 (People's Ex. 3); at 109 (People's Ex. 5); see also id. at 113.)

In his defense, Strzelecki initially sought to call Ellers, but the trial court first demanded an offer of proof. (Oct. 13, 2011 Trial Tr. at 10.) Defense counsel stated:

She's . . . Springer's sister. She's familiar with the family. She's been with them. She communicates with . . . Springer and the family. She has a daughter that goes over to the house all the time. She's been to the household. She knows the scene of the household before the events occurred here. And after the events

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occur[ed]. She can tell us about family dynamics during that time period.
There also was an incident, that I will be bringing up with her, that she herself was a victim of a sex abuse by someone in that household who is not . . . Strzelecki. And that is basically most of my offer of proof.

(Id. at 10:16-11:5.) The trial court precluded Petitioner from calling Ellers, ruling: "I don't think it is relevant, probative, material, and it is complete hearsay. Complete." (Id. at 11:7-9.)

Strzelecki proceeded to call Springer, whom he was originally precluded from calling. The trial court reconsidered its earlier denial of Strzelecki's in limine motion regarding the calling of Stringer as a defense witness, stating:

The defense, in its opening statement, suggested that, based on the circumstances of the defendant's marriage, there was a motive to fabricate the reporting of the alleged crimes. The defense was directed . . . to make an offer of proof in limine. The court then determined that the defense had not met its burden showing that . . . Springer had any testimony to offer that would be probative, material and relevant to this case. At not time, either on the offer of proof regarding. . . Stringer, or on the cross-examination of the alleged victim or the police officers, has the defense ever asked any questions concerning . . . Springer's interaction with her daughter, [L], the police, CPS and the CPS complainant, as to whether or not [L] was told to fabricate her story.
The court has considered the recent decisions in 2011, from the Second Department, which are slip opinions, People vs. Spencer, Slip Op[.] at 06390, and People vs. Klem, Slip Op[.] at 00533. In those cases, our appellate division determined the court has discretion.
After considering those cases, the court in its discretion, has allowed defense counsel to call . . . Springer as a witness on the defendant's behalf. However, . . . counsel is bound by her answers. If . . . Springer testifies concerning her daughter's reporting of the case and denies any knowledge of fabrication, the defense is bound by that answer and may not call in another witness to impeach . . . Springer.

(Id. at 2:11-3:21.) In noting its objection to the ruling, the People stated that while Spencer stood for the proposition that extrinsic proof tending to establish a motive to fabricate is never

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collateral, when such evidence is too remote, the court has the discretion to exclude such evidence. (See id. at 4:8-15.) The prosecution asserted this was such a case:

The evidence of a motive to fabricate requires extensive speculation. And it also is very remote. B[y] all of the evidence in this case, the district attorney has established that neither the mother nor the child are in fact the reporter to the police, or CPS, of the crimes that have occurred. So for her to have a motive to fabricate the reporting of the crimes, either her or her daughter[, t]he daughter would have to be the reporter.
This entire matter was brought before law enforcement authorities and CPS by a report of a separate individual, an ex-tenant - it already has been established through cross-examination of the child, the child never had any conversation with this ex-tenant. So I do believe that the court's ruling, which established that in fact that the motive to

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