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PEREZ v. METZ

July 5, 1977

Juan PEREZ and Edward Pagan, Petitioners,
v.
Paul METZ, Warden, State Correctional Facility, Comstock, New York, Respondent



The opinion of the court was delivered by: CONNER

MEMORANDUM AND ORDER

Juan Perez and Edward Pagan have filed a joint petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. Petitioners were brought to trial in late January 1976 in New York State Supreme Court, Bronx County, and were convicted, upon a jury verdict, of the murder of Angel Ortiz. On April 9, 1976, both men were sentenced to terms of imprisonment of twenty years to life and are currently incarcerated in a New York State Correctional Facility in Comstock, New York. Their convictions were affirmed without opinion by the Appellate Division, First Department (390 N.Y.S.2d 769), and leave to appeal to the Court of Appeals was denied by Judge Wachtler.

Perez and Pagan were represented by the same lawyer at trial, and that fact underlies their principal constitutional claim that the common representation of their conflicting interests deprived them of their Sixth Amendment right to the effective assistance of counsel and to their due process right to a fair trial. Both petitioners also allege a violation of their constitutional rights in the State's failure to provide corroboration of the testimony of its principal witness, Letitia Gonzalez; in the court's sealing of the courtroom during the testimony of two of the prosecution witnesses; in certain of its instructions to the jury; and in remarks made by the prosecutor during his opening statement. Finally, on his own behalf, Pagan contends that the proof of his guilt was constitutionally insufficient. Reference to petitioners' appellate submissions discloses that the state courts have had a fair opportunity to pass upon the contentions advanced by petitioners herein. This Court is thus satisfied that petitioners have exhausted their state remedies in accordance with 28 U.S.C. § 2254(b) and (c). Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).

 I.

 A. The State's Case

 According to the evidence at petitioners' trial, the victim, Angel Ortiz, was found murdered in an apartment at 75 West 175th Street in the Bronx on July 28, 1973. The police discovered his bullet-riddled body in a sitting position on the living-room couch, with a .38-caliber Armenius revolver, containing four spent and two live rounds, in or near his hand. Five additional rounds of ammunition were found in the dead man's pockets. The police recovered twelve pieces of ballistics evidence from the living-room floor and were able to determine that three of these came from a .44-caliber semi-automatic rifle; that one was consistent with having been fired from the .38-caliber Armenius revolver recovered at the scene; and that two had also been fired from a .38-caliber revolver, but not from the Armenius. The evidence, in the opinion of the State's ballistics expert, thus indicated the use of at least three firearms.

 The medical examiner who performed the autopsy on the deceased certified the cause of death as "multiple bullet wounds of the head, the abdomen, the extremities, the lung, the aorta, spleen and stomach, internal hemorrhage." These injuries consisted of seven bullet wounds, four of them affecting vital organs, and at least one the result of a .38-caliber slug, from a revolver other than the Armenius.

 No one was apprehended in connection with the killing until August 6, 1973. Then, on information provided by Letitia Gonzalez, the tenant of the apartment where the shooting had occurred, the police arrested the defendants and a third man, Alberto Gordils. Gonzalez proved to be the State's sole eyewitness and gave critical testimony at trial.

 Gonzalez became acquainted with the defendants more than a year before the shooting, when they were all neighbors on Grand Avenue in the Bronx. In the summer of 1973, Pagan introduced her to Alberto ("Al") Gordils. Then, slightly more than a week before the July 28, incident, Pagan and Gordils visited her apartment looking for Juan ("Johnny") Perez. She did not know where he was. The two men then asked her if she "wanted to do a job for them," which they assured her would pay well. In need of funds, she agreed, was given ten dollars, and was told to get friendly with a "guy" (Angel Ortiz) whom they subsequently pointed out to her in the neighborhood. She made Ortiz's acquaintance and socialized with him on three separate occasions in a bar, drinking liquor and smoking marijuana. Two of those times, Pagan and Gordils drove her to within two blocks of the meeting-place, and for four days in succession Gordils, in Pagan's presence, supplied her with spending money.

 On July 28, 1973, Pagan and Gordils took her to a candy store and had her telephone Ortiz. Gordils took the receiver to verify Ortiz's identity and nodded affirmatively to Pagan. Gonzalez then made a date with Ortiz for approximately 8:30 P. M. and was instructed by Gordils to invite him to her home. On inquiring as to the purpose of what they were doing, Gordils said "Just do (your) job." The witness noted that, during all of her conversations with Gordils, Pagan was present.

 That evening, she and Ortiz met, and then returned to her apartment at approximately 9:00 P. M. While they were seated on the sofa in the living-room, the kitchen light went out. Gonzalez arose and saw Johnny Perez enter the living-room, carrying a .38-caliber pistol. Following him was Gordils with a rifle or shotgun. Pagan, the last to enter, remained at the threshold of the kitchen and living-room, approximately fifteen feet from Ortiz. Gonzalez said that she was unable to remember whether Pagan was armed, that it was too dark to see. Perez, who was the closest to Ortiz, less than fifteen feet away, said to him, "don't move, you are going with us." Perez was the only one who spoke. Ortiz then placed his hand in his jacket and fired his gun a single time, according to Gonzalez's recollection. Perez then "went crazy shooting." He fired more than five times. After he had finished, Gordils commenced firing, and, at that point, Gonzalez ran out of the apartment. Pagan was the only one of the three who did not shoot.

 Gonzalez stood in the street crying, until Perez and Millie Rodriguez *fn1" found her and took her for a walk. When she asked them "why they (had done) that," Perez said "they had to do it," and he told her to "go back, just make up a story, nothing will happen to you." She returned to the scene and lied to the police when they initially questioned her, but approximately a week and a half later led them to the defendants, after being told by a detective that the police "knew * * * what (had) happened."

 The day following the shooting, Gordils gave her and Rodriguez five hundred dollars, which she used to help her mother and to buy clothes for herself and her children.

 Her contact with Pagan continued in the period following the incident. She first saw him with Perez and Gordils the day after the shooting, but there was no conversation between them. Then, in December of 1974, she met Pagan on Grand Avenue. He asked whether she "wanted to go to Puerto Rico in August until all this is over." At first she did not want to go, but then, she testified, "I didn't have any choice. So I went down there." Accompanying her were Millie Rodriguez and Pagan and his wife. Pagan paid for her and Millie's flight to Puerto Rico and for their house and expenses for a period of six months. He stayed with them for a week on the initial trip down, and then, during the ensuing six months, visited on two occasions, each time for a period of three days. When asked if Pagan talked about the case at all, she said he did not. After six months had passed, Pagan terminated his support, and the women were forced to earn their airfare home. They returned to New York on July 31, 1975. Toward the end of the summer, she encountered Pagan on the street. She tried to run away from him, but he stopped her and told her the trial was not over yet. Gonzalez told him she did not care what happened because she had lost everything and "they (weren't) going to replace anything * * * (she) had lost." On that or a subsequent occasion, Pagan told her that the trial would be over on October 7, 1975. *fn2" It was only later that she learned that she was being sought as a witness in the case.

 Besides Gonzalez, one other prosecution witness, Mercedes Aponte, purported to place the defendants at the scene of the shooting. Aponte testified that she was sitting on the stoop at 75 West 175th Street on the night in question, and saw the two defendants, together with a third may ...


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