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SOLOMON v. COMMISSIONER OF CORRECTIONAL SERVS.

February 28, 1992

MATTHEW J. SOLOMON, Plaintiff, against COMMISSIONER OF CORRECTIONAL SERVICES, Defendant.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 On February 3, 1989, Matthew Solomon ("petitioner") was convicted of Murder in the Second Degree pursuant to New York Penal Law § 125.25[2], depraved mind murder. Having exhausted his state remedies, petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the following grounds: (1) there was insufficient evidence for a rational jury to have found this to be a case of depraved mind murder; (2) petitioner received ineffective assistance of counsel; and (3) the intense media coverage before and during the trial deprived petitioner of a fair trial. For the reasons discussed below, the petition is denied.

 I. BACKGROUND

 On January 11, 1988, petitioner was arrested and charged with Murder in the Second Degree in violation of New York Penal Law § 125.25[1], intentional homicide, and § 125.25[2], depraved mind homicide, in connection with the Christmas Eve strangulation of his newlywed wife, 22 year old Lisa Solomon. Although the prosecutor strongly emphasized the count of intentional homicide in his opening and closing statements, on February 3, 1989, petitioner was convicted of depraved mind homicide and sentenced to an indeterminate term of eighteen years to life imprisonment.

 A. Evidence Produced at Trial

 In assessing a claim of insufficiency of evidence, a federal habeas court is required to view the evidence in the light most favorable to the State. Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988). From that viewpoint, the following was established at trial:

 On December 24, 1987, at about 7 o'clock in the evening, Lisa Solomon called her mother, Diane Weaver. Lisa appeared to be very happy. Soon afterwards, Lisa and Matthew Solomon began a Christmas Eve dinner during which they consumed three bottles of champagne. After dinner they made love and then, at approximately 10 o'clock, Lisa began watching a videotape and Matthew fell asleep.

 Shortly before midnight, Lisa awakened Matthew. She was upset about Matthew falling asleep on Christmas Eve, about her father's recent ill health, and about her mother being alone. She said that she hated Matthew and that she was leaving. *fn1" Matthew began yelling.

 Raymond Padilla, the Solomons' landlord and downstairs neighbor, heard petitioner's shouts, rising in intensity, coming from the Solomons' living room. He then heard the footsteps of one person apparently chasing another in the upstairs apartment, then a bang as if someone were being pinned against a wall, then Lisa crying, and then silence.

 Petitioner admits that he put his right arm around Lisa's neck, applied a bar arm choke hold, and held it for "a few minutes." [People's Exhibit 65; R.S.A. 406-412]. *fn2" When he knew his wife was dead, he removed her panties, moved the naked body to the bathroom, switched the positions of his and Lisa's cars in their driveway so that his car would be accessible, walked to a 7-Eleven store to purchase plastic garbage bags, removed his wife's diamond rings and replaced them with a plain gold band, wrapped the body in five garbage bags, placed it in the trunk of his car, and dumped it in the woods off Pulaski Road in Huntington, Suffolk County, New York.

 Petitioner then drove around until approximately 5 o'clock in the morning, when he spotted Suffolk County Police Officer Robert Donohue. He asked the officer if he had seen Lisa, who, petitioner said, had gone out for a walk the previous evening but had not returned. When Donohue said that he had seen a woman walking alone, petitioner showed the officer a picture of Lisa.

 Within hours, petitioner repeated his "missing person story" to his father, to Lisa's mother, to Kim Krug (a friend of Lisa's), to Padilla and to various police officers. He left a note in his apartment that said, "Dear Lisa, when you come home please don't go anywhere, wait for me to return. Love Matthew. I love you, Matthew." [T: 1869].

 Petitioner helped organize and conduct a search for Lisa that was undertaken by Suffolk County Police and civilian volunteers. This search continued, attended by intense media coverage, until December 30, 1987, when Lisa's body was discovered at approximately 11:00 p.m. by Karl Heidenreich, one of the searchers. Petitioner arrived at the scene shortly thereafter, yelling, "Where is she? Let me see her!" [T: 2004]. His emotional reaction was apparently so intense that he had to he restrained, and he was subsequently taken by ambulance to Huntington Hospital where he was sedated.

 Hair identified as petitioner's, and a fiber, consistent with that of the carpet in the trunk of petitioner's car were found inside the fourth garbage bag in which Lisa's body was wrapped.

 On January 11, 1988, petitioner was arrested and properly informed of his Miranda rights. He waived these rights, however, and made oral, written and videotaped confessions. *fn3"

 Dr. Sigmund Menchel, the Suffolk County Medical Examiner who examined Lisa Solomon's body, found her tongue clenched in her mouth, hemorrhaging around her lips and in her eyes and face, swelling to her neck, and fractured cartilage in her neck. He concluded that she had been killed by strangulation through the use of a bar arm choke hold and that a tremendous amount of force was applied to the neck in order to cause the cartilage fracture. He testified that from the time petitioner applied the choke hold, Lisa's death could have occurred within as little as 20 to 60 seconds or as much as two or three minutes and that unconsciousness would have preceded death. He also found injuries to her scalp, shoulders, and left forearm that could have occurred as the result of banging her head against a wall.

 In addition, Dr. Menchel stated that Lisa's blood alcohol level was 0.16 at the time of her death (making her legally drunk for purposes of operating a motor vehicle) and he estimated that she had consumed between six and eight drinks. However, he insisted that this level of alcohol consumption was not a contributing factor in her death.

 Other evidence introduced at trial showed that Lisa was only five feet one inch tall while petitioner, a sheet metal worker, was approximately five feet ten inches tall. In addition, petitioner was well aware that Lisa was an asthmatic who took medicine for that condition twice a day. Finally, there was evidence of a struggle: scratch marks on petitioner's neck and chin, a bite mark on his right arm, and possibly blood on a gold chain that he wore around his neck.

 B. Trial Preparations and Proceedings

 Petitioner's attorney was Jeffrey Waller, Esq., a practitioner with approximately 20 years of experience, including two and a half years as a Suffolk County Assistant District Attorney. Petitioner retained him for a "net fee" of approximately $ 110,000, with Waller paying all trial expenses from this fee.

 Due to the extensive coverage of this case by the local media, petitioner moved for a change of venue prior to jury selection. *fn4" The motion was denied by the Appellate Division in an opinion that suggested that it would be more appropriate to file such a motion after the conclusion of the voir dire.

 Upon petitioner's motion, the trial judge ordered special proceedings for voir dire pursuant to People v. Ryan, 93 A.D.2d 848, 461 N.Y.S.2d 344, 345 (2d Dep't 1983). Approximately 170 prospective jurors were screened, and 115 were individually questioned regarding their exposure to the pre-trial publicity. The questioning of the prospective jurors, mostly by Waller, was extensive, filling more than 1,500 pages of the transcript. Although the entire jury pool had heard of the case, the twelve jurors and four alternates selected indicated that they would not be influenced by media reports, but would decide the case only on the evidence produced at trial. The judge instructed them not to watch media reports of the case or discuss it with anyone. Waller apparently ...


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