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October 1, 1990


The opinion of the court was delivered by: Robert J. Ward, District Judge.


Rolando Coronado petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated April 16, 1987, the petition was referred to the Honorable Joel J. Tyler, United States Magistrate, to hear and report pursuant to 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules for Proceedings Before Magistrates. On September 7, 1989, Magistrate Tyler filed a Report and Recommendation (the "Report") in which he recommended that the writ be denied and the petition dismissed. Petitioner filed timely objections to the Report on May 17, 1990.*fn1 Having reviewed the Report and considered de novo those portions to which petitioner has objected, the Court hereby adopts the magistrate's recommendations, denies petitioner's writ of habeas corpus, and dismisses the petition.


Petitioner was convicted, on January 18, 1985, after a two-week bench trial in the Supreme Court of the State of New York, Bronx County, of Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law, §§ 125.25(1) and 265.01) in connection with the death of Sonia Gutierrez ("Gutierrez"), a 13-year old student at Junior High School 52 ("JHS 52") in Manhattan. Gutierrez was found murdered on April 16, 1983, on Boone Avenue in the Bronx. Wrapped around her body was a metallic gold-colored belt.

The evidence implicating petitioner in the murder of Gutierrez originated in part from an assault on Roberto Perez ("Perez") on May 21, 1983. According to Perez, a 17-year old student attending JHS 52, on that night petitioner approached him from behind, put a knife to his back and demanded his wallet. Although Perez offered his wallet to petitioner, Perez testified that petitioner refused to take it. Petitioner instead placed a blindfold on Perez's face, and forced him to walk for "hours" through the streets of the Upper West Side of Manhattan. Before leading Perez into Riverside Park ("the park"), petitioner kicked and hit Perez in an alley, and told him that it was "just a shame that its got to happen again."

Later, while in the park, petitioner asked Perez what school he attended. Perez stated that he went to JHS 52. Petitioner, who had graduated from JHS 52 in 1979, asked Perez if he knew a boy named Danny. Perez told him that he did. Petitioner and Perez then had a conversation regarding Danny, whereupon petitioner inquired whether "anything interesting had happened in the school recently?" Perez responded that a girl had been killed. According to Perez, petitioner then stated: "I want you to know I killed her and if you don't shut up, I'm going to have to kill you too."

Sometime after this conversation, Perez tried to escape. Petitioner grabbed him, stabbed him in the back several times, and left him for dead in the park, discarding the knife in nearby bushes. Perez regained consciousness at Mt. Sinai Hospital ("Mt. Sinai") the following day. There he was examined by a psychiatrist who concluded that Perez was suffering from visual and auditory hallucinations and recommended that he be subjected to further psychiatric evaluation.*fn2

Also on May 22, the day after the stabbing, petitioner went to the 20th Precinct to confess to the murder of Perez, believing that he had killed him the night before in the park. The police attempted to confirm the story. However, since no murder had been reported in the park, petitioner was released.

After Perez spoke with the police and confirmed an attack in the park, petitioner was arrested by Detectives Robert Subach ("Subach") and Carlos Rivera ("Rivera") and taken into custody.

At the police station, Subach and Rivera brought petitioner to an interrogation room. Petitioner was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), whereupon he told Subach and Rivera that he understood his rights and that he wished to speak to them. Subach and Rivera told petitioner that he was being arrested for the stabbing of Perez and that he was under investigation for the murder of Gutierrez. The interrogation lasted approximately nine hours, from 3:00 or 3:30 P.M. on May 31, 1983, to 1:00 or 1:30 A.M. on June 1, 1983, and ended with a videotaped statement by petitioner in the presence of Assistant District Attorneys from both New York and Bronx Counties.

During the interrogation, petitioner made several statements. He confessed to the Perez stabbing, and also to two murders, which police could not confirm. He repeatedly told the detectives that he liked to watch people suffer and enjoyed terrifying others. He stated that he used drugs on a daily basis.*fn3 Although petitioner continually denied any involvement in, or knowledge of, the murder of Gutierrez, he asked the detectives "how he could drive and hold her [Gutierrez] at the same time," even though the detectives did not tell petitioner that Gutierrez's body had been transported by car to the Bronx. Additionally, when petitioner saw a picture of the deceased he stated, "good-bye Sonia, I guess its all over."*fn4 Petitioner also suggested that he did not mind telling the police about Perez since they already knew about him, but that they would have to "figure out" what happened to Gutierrez, since they knew nothing about her.

Petitioner pled guilty to charges relating to the assault on Perez, and was sentenced to a term of 8 to 16 years. He was later indicted by a Bronx grand jury for Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Fourth Degree (one count was later dropped), in relation to the Gutierrez murder.

Prior to trial for the Gutierrez murder, a suppression hearing was held before the trial judge, the Honorable Elbert Hinkson. The prosecution sought the admission of all of petitioner's statements to the detectives, a videotape of the crime scene showing the body of Gutierrez, and the identification of petitioner by Perez and all of petitioner's statements to Perez. Petitioner moved for suppression of the statements he made to the detectives on the ground that they were not made voluntarily; of Perez's testimony and identification on the grounds that Perez was mentally unstable*fn5 and the identification procedure unduly suggestive; and the videotape of the crime scene due to its highly prejudicial nature and low probative value.

The detectives testified at the hearing that petitioner was always responsive to their questions during the interrogation session, and that he was generally calm. However, they also stated that petitioner seemed to have "severe psychiatric problems," that he seemed to be "missing a few parts" and that he was "crazy as a bedbug." They stated that there were breaks during the interrogation while petitioner ate dinner, used the bathroom, and watched some television.

Judge Hinkson's ruling on these issues included findings of fact and conclusions of law. He suppressed much of the evidence that was proffered by the prosecution during the course of the hearing,*fn6 primarily on the ground that its probative value was outweighed by the extreme prejudice that it would cause to the defendant. With respect to the statements made by petitioner to the detectives, the judge found that "the record clearly established that the defendant was fully aware of the statements he was making [to the detectives];" that "he responded to questions in a clear and rational manner," and that "there is no definitive indication of mental disease attributable to the defendant." Judge Hinkson determined that although petitioner was interrogated for nine hours, he was not questioned continuously, for he was fed, went to the bathroom, and watched television for a period of time.

Regarding Perez, the Judge found that he had been hospitalized for physical, and not mental reasons, and that although Perez had hallucinations and his recitation of events were "bizarre," this was "clearly understandable considering the traumatic ordeal he had just experienced." The judge concluded that Perez's "recounting of the ordeal . . . [was] at a minimum substantially factual."

After Judge Hinkson announced his decision, petitioner asked that his attorney be relieved since he was urging petitioner to plead guilty on all counts. The Court reserved decision, but later denied the application. Petitioner then requested a non-jury trial, over the vociferous objections of his counsel. The Court again reserved decision, and told petitioner to "discuss the matter very thoroughly with [his] attorney and give it a great deal of thought overnight." The following day, Judge Hinkson warned petitioner of the risks of a non-jury trial. He explained to petitioner the possible prejudice that could occur against him. However, petitioner insisted on waiving his right to a jury trial.

Petitioner's attorney then requested that a competency hearing be held to determine petitioner's mental state.*fn7 The hearing was held before Judge Hinkson on January 3 and 4, 1985. At the hearing, the prosecution called as witnesses two psychiatrists who had examined petitioner several weeks earlier to evaluate his competency to stand trial. Both testified that it was their opinion that petitioner was competent to stand trial, since he had the ability to assist in his defense and to understand the charges against him. Petitioner did not present any evidence as to his competency at the hearing.

Following the testimony of the witnesses and argument of counsel, Judge Hinkson concluded that petitioner was competent to stand trial and assist in his own defense. He also determined that petitioner had the capacity to understand the consequences of waiving his right to a jury trial, and that there was no evidence of any mental disease. At the close of the hearing, Judge Hinkson again asked petitioner if he wished to waive his right to a jury trial. Petitioner stated that he did. During a colloquy with the court, petitioner said that he understood the effects of his decision, but still wished to waive his right to a jury trial. Judge Hinkson found that petitioner understood what he was doing, and granted petitioner's application. Petitioner then signed a written waiver.

The case was tried before Judge Hinkson. A number of witnesses were called by both the prosecution and the defense.*fn8 The first significant witness called by the prosecution was Subach. His direct testimony related to the investigation and subsequent interrogation of petitioner. He testified to petitioner's admissions concerning his attack on Perez and to petitioner's statements that linked him to the Gutierrez homicide.*fn9

Next to testify was Perez. Perez first recounted the events that occurred the night of May 21, 1983, when petitioner assaulted him in the park, as circumscribed by Judge Hinkson's rulings at the suppression hearing. Perez testified that after they had discussed the murder at JHS 52, petitioner told him that "it was a shame that it had to happen again," and that "I just want you to know that I killed her, and if you don't shut up I'm going to have to kill you too."

The prosecution also called Abigail Alvarez ("Alvarez"), a friend of Gutierrez from JHS 52. Alvarez testified that she had seen Gutierrez with petitioner a few times; that the two had a relationship which was symbolized by the wearing of each other's clothes or jewelry (in this case the gold belt); and that just before Gutierrez was killed, she and petitioner had argued over the fact that her parents would not let her go out on dates.

The defense called Gutierrez's sister as a witness. She testified that although she and Gutierrez had shared a room and did all of their shopping together, she had never seen the gold belt prior to Gutierrez's death. She also testified that while Gutierrez said that a "big boy" was in "love with her," Gutierrez had never mentioned petitioner's name. Additionally, she testified that she had never seen either Alvarez or petitioner previous to that day in court.

Gutierrez's step-mother also testified for the defense. Like Gutierrez's sister, she stated that she had never seen the gold belt, and that Gutierrez had stated before she was killed that an older boy was in love with her. The witness also testified that Gutierrez never asked her if she could go out on a date. In addition, the court reporter who had taken down the grand jury proceedings testified that during the grand jury proceedings Perez had testified that petitioner asked him if he knew a girl named "Dinah" at JHS 52, and not about a girl "dying," and the psychiatrist who had examined Perez following the stabbing testified as to her evaluation of Perez' mental condition at that time.

After hearing closing arguments, the court reserved decision. When it rendered its verdict four days later, the court concluded that "after along [sic] and due deliberation" petitioner is "guilty in the first count of the indictment, the crime of Murder in the Second Degree; under the second count of the indictment the defendant is found guilty of the crime of Criminal Possession of a Weapon in the Fourth Degree." Petitioner was sentenced on February 13, 1985, by Judge Hinkson, to concurrent sentences of 25 ...

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