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AVINCOLA v. STINSON
July 9, 1999
LUIS AVINCOLA, PETITIONER,
JAMES STINSON, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Scheindlin, District Judge.
I have duly considered petitioner's Objections, dated May 17,
1999, to the Report and Recommendation of United States
Magistrate Judge Andrew J. Peck, dated March 19, 1999, and have
found them to be without merit. Accordingly, I hereby accept
and adopt the thoughtful and extremely thorough Report and
Recommendation in full and dismiss the above-referenced
habeas petition. The Clerk of the Court is directed to close
REPORT AND RECOMMENDATION
Petitioner Luis Avincola seeks a writ of habeas corpus from his
1986 conviction of murder in the second degree, for which he
was sentenced to twenty-five years to life imprisonment. (See
Pet., ¶¶ 1-4). Avincola raises numerous grounds in his petition.
One of his grounds, that the trial court improperly omitted a
circumstantial evidence charge from the jury instructions (Pet.
¶ 12(F)), was denied by the state court on a state procedural
ground. Therefore, this denial rested on an adequate and
independent state law ground and federal habeas review of this
claim is barred. The federal nature of one of Avincola's
grounds, that the trial court improperly admitted evidence of
uncharged crimes (Pet. ¶ 12(B)) was not fairly presented to the
state court. Because Avincola may no longer raise it in state
court, this claim is deemed exhausted; however, his procedural
default bars federal habeas review of this claim. Additionally,
two parts of his prosecutorial misconduct claim (Pet. ¶ 12(E))
have never been presented to any state court. Avincola is now
procedurally barred from raising these claims in state court,
so they are deemed exhausted, but his procedural default also
bars federal habeas review of these claims. Avincola's
remaining grounds — (1) improper admission of hearsay evidence
(Pet. ¶ 12(F)), (2) violation of his Fifth Amendment rights
based on the improper admission of statements he made while in
custody (Pet. ¶ 12(A)), (3) violation of his confrontation
rights under the Sixth Amendment (Pet. ¶ 12(C)), (4) the
remaining prosecutorial misconduct claims (Pet. ¶ 12(D)-(E)),
(5) ineffective assistance of trial counsel (Pet. ¶ 12(G)), and
(6) ineffective assistance of appellate counsel (Pet. ¶ 12(G))
— are all exhausted, but lack merit. Accordingly, for the
reasons set forth below, the Court should deny Avincola's
At approximately 6:00 p.m. on December 30, 1985, Luis Avincola,
also known as "Columbia," shot and killed Rudolpho Garcia, also
known as "San Martin." Soon after the shooting, Avincola told
San Martin's girlfriend, Nilda Ortiz Rivera, also known as
"Flaca," that he had just killed her "old man." (E.g., Trial
Transcript [hereinafter. "T."] 305, 315-16, 331.)
Avincola's In Custody Statements to the Police
At the crime scene, Rivera reported to the police that a man
named "Columbia" had just approached her and told her that he
had shot San Martin. (6/30/96 Suppression Hearing Tr.
[hereinafter, "S."] 99,122-23; see also Ex. B:*fn2 7/14/86
Trial Ct. Opinion at 2-4.) Based on that information, the
police arrested Avincola later that night. (S. 14-15; see Ex.
B: 7/14/86 Trial Ct. Op. at 3.) When Avincola was brought to
the precinct, he appeared to the police to be "stoned," that
is, under the influence of cocaine, as his pupils were dilated
and he was in a "very hyper" state. (S. 78-79, 89-90; see Ex.
B: 7/14/86 Trial Ct. Op. at 5.) However, his speech was not
slurred and he appeared to know where he was. (S.90-92.)
Detective Palma read Avincola his Miranda rights in English,
but Avincola indicated in Spanish that he did not understand.
(S. 34, 40-41, 69-70, 91-92; see Ex. B: 7/14/86 Trial Ct. Op.
at 4-5.) Detective Palma, who is bilingual, read Avincola a
Spanish version of the Miranda rights, which Avincola
indicated he understood. (S. 34, 40-41, 41-43, 45, 91-93; see
Ex. B: 7/14/86 Trial Ct. Op. at 5.) Telling the police that he
had nothing to hide, Avincola answered subsequent questioning
by police after he ate some food and had slept for around four
hours. (S. 45, 79, 82-83; see Ex. B: 7/14/86 Trial Ct. Op. at
5-6.) Avincola told the police that "San Martin was following
him around the neighborhood. And he was trying to take me off.
And that's why I stated I was going to kill him. Because I
thought he had a gun." (S. 55, see Ex. B: 7/14/86 Trial Ct.
Op. at 6-7.) The police prepared a written version of this
statement, but Avincola did not sign it. (S. 55-56; see Ex.
B: 7/14/86 Trial Ct. Op. at 6.)
Prior to trial, Avincola filed a motion to suppress, inter
alia, his statements to the police. (See Ex. B: 7/14/86
Trial Ct. Op. at 8.) A suppression hearing was held prior to
trial. At the hearing, Detective Palma testified as to the
reading of the Miranda warning:
[DETECTIVE PALMA]: When I read him his rights in English he
stated he didn't understand it. When I read them in Spanish,
he responded yes to all the questions. So therefore, I
realized this individual understood what I was telling him.
Q Did you have to repeat any of the rights?
Q Did he ask you to repeat any of the rights?
Q Did he ask you to repeat any of them?
Q Did he answer yes right after you completed asking the
rights in Spanish?
A No, no hesitation whatsoever.
(S.91-93.) Additionally, the trial court asked Detective Palma
to state in Spanish the Miranda warnings that he gave to
Avincola, which were translated as follows:
THE COURT: I want to hear from the detective now what he said
and I want the [official court] interpreter to listen to it.
Say what you said in Spanish to him.
(Whereupon the witness read from a document in Spanish.)
THE COURT: Will you interpret that?
THE INTERPRETER: . . . . You have the right to remain silent.
And to answer questions; do you understand? Anything you say
we can use against you; do you understand? You have the right
to consult a lawyer before you answer any questions and to
have an attorney present to answer questions; do you
understand? If you don't have the abil [sic] for a lawyer the
city will give you a free one. With my command of two
languages I understood. It is not a perfect Spanish, it would
be hard to understand for a non-educated person.
THE COURT: Don't give me an evaluation, but translate into
English even with mistakes what he is saying.
THE INTERPRETER: If you don't have a lawyer at your disposal
you have the right to state silence until you have the
opportunity to have an attorney. Now that I have advised you
of your rights, do you want to speak right now with the
[DETECTIVE PALMA]: His answer was he had nothing to hide.
(S.44-45.) The trial court denied Avincola's suppression
motion, finding that Avincola "was fully and properly advised
of his Miranda rights in Spanish by Detective Palma and
knowingly and intelligently waived those rights." (Ex. B:
7/14/86 Trial Ct. Op. at 8.).
The Prosecution's Opening Statement at Trial
In his opening statement at trial, the prosecutor told the
injury about a witness to the shooting:
And as I indicated the incident happened sometime around 7
o'clock that evening.
The evidence will come from a witness named Luis Alvarado who
was present in the apartment on the third floor, whose
attention was drawn to an argument between the deceased and
defendant on the third floor landing immediately outside the
door. . . .
Evidence will show that [Alvarado] was watching a Spanish
soap opera on TV. After initially going to the peephole in
the inside of his apartment, he then walked away. Within
moments he heard a single gunshot.
He went back to the peephole and saw the defendant with a
sawed-off rifle running down the stairs from the third floor
down to the second floor. He lost sight of him.
(T. 27.) When the prosecution was unable to produce Alvarado as
a witness at trial, Avincola's counsel moved for a mistrial.
In response, the prosecutor stated that he had intended to call
Alvarado as a witness at trial, and had met with Alvarado in
his office on the morning of July 7, 1986, a few days before
the trial was scheduled to commence. (T. 856-57.) At that
meeting, the prosecutor informed Alvarado that "the case was
going to proceed to trial" and that he probably would testify
on July 11. (T. 857-58.) On July 11, Alvarado did not appear at
the prosecutor's office as his subpoena had directed and the
prosecutor sent a detective to find Alvarado. (T. 861.) That
same day, the prosecutor gave his opening statement referring
to Alvarado's potential testimony. Id. Upon returning to his
office at the end of the day, the prosecutor learned that
Alvarado's girlfriend had left her job and got some indication
that Alvarado may have fled, and "through later investigation."
including "rumor and innuendo," the prosecutor learned that
"the word in the street [was] that he had fled to Santo
Domingo." (Id.) The trial court denied the mistrial motion.
During his summation, Avincola's attorney used Alvarado's
absence to Avincola's advantage:
I need not elaborate on the obvious fact that there is no
witness who came into this court and gave evidence before you
that he or she saw Luis Avincola shoot San Martin.
What you do have is someone who flew the coop. Tony, Luis
Alvarado who lived right here. . . . It's got these two
doors. Both to his apartment, I think you heard Nilda say
that. And the stairway, the top of the stairs is where the
That's where Tony lived. Tony who used to deal drug deals
with San Martin and Nilda.
Tony whose apartment was right in front of the scene where
San Martin was killed. Tony who when he had to come into
court to testify under oath before a jury about whatever,
flew the coop and went to Santo Domingo, so they said.
Does he have some reason to flee in connection with this case
when he lived right at death's door step literally where he
dealt drugs from with San Martin?
The victim, San Martin, along with his girlfriend Rivera, were
steerers for a drug dealer working out of a building located at
568 W. 161st Street in Manhattan. (T. 308-10.) Avincola, who
was a competing drug dealer working out of the same building,
had twice threatened to kill Rivera and San Martin a week
before the actual shooting. (T. 311-13, 324-26, 415, 440, 442,
445-48.) A week prior to the shooting, Avincola was in Mayra
Mejia's apartment, carrying an object in a paper bag about two
feet in length that looked like a shotgun. (T. 591-93, 623-24,
650.) On December 29, 1985, Avincola told Mejia that he swore
"to his mother that he was going to kill San Martin" because
San Martin and Rivera "were taking his client[s] away." (T.
On December 30, 1985, Clarence Collins, the superintendent of
the adjoining building, saw Avincola on the stoop of 568 W.
161st Street. (T. 164-65.) Collins shared a soda with Avincola
and then left him on the stoop and went home. (T. 165-66, 246.)
Immediately after he entered his building, Collins heard two
shots that appeared to come from the next building. (T. 165.)
Fifteen minutes later, he entered 568 W. 161st Street and found
San Martin lying on the stairs. (T. 167-68.)
Within an hour of the shooting, Avincola approached Rivera on
the street two blocks away from the crime scene and told her to
"`go to 6 — 161, that I killed the one that is your old man.'"
Avincola was arrested later that night at a hotel and brought
to the police precinct. (T. 281-84.) The hotel desk clerk gave
the police a rent receipt for Avincola's room. (T. 705-07.) At
the precinct, Rivera and Mejia identified Avincola as
"Columbia" through a one-way mirror. (T. 319-20, 467-68.)
Detective Palma read Avincola his Miranda rights in Spanish.
(T. 677-80, 696-98.) Four hours later, in response to
questioning by the police, Avincola admitted that he knew San
Martin but denied that he had killed him. (T. 700-02.).
Additionally, he told the police that "`San Martin was always
following me around trying to take me off for my drug
customers,'" and added, "that's why I stated I was going to
kill him because I heard that San Martin had a gun." (T. 713,
Rivera's and Collins's Trial Testimony and Invocation of Their
Fifth Amendment Rights
During cross-examination, witness Clarence Collins asserted,
upon the advice of counsel, his Fifth Amendment privilege
against self-incrimination in response to defense counsel's
questions about potential liability for tax fraud (T.175-177),
sources of income other than his building superintendent job
(T. 177-78, 217-18), his drug use (T. 187, 223), and his
possession of a firearm (T. 221-22). Upon each of these
assertions of privilege, the trial court instructed the jury
that "since the questions put to Mr. Collins . . . relate
solely to his own credibility or believability as a witness,
you may take into consideration his refusal to answer that
question as though he had answered the question unfavorably to
himself." (T. 176, see also T.178, 218, 221-23.)
During the cross-examination, witness Rivera asserted her Fifth
Amendment privilege against self-incrimination in response to
defense counsel's questions about her drug activities and her
sources of income. (E.g., T. 337, 341, 345, 346, 350-53,
392-93, 396-97, 420-23, 442, 461, 473.) The trial court only
allowed Rivera to assert her privilege at four separate times
(T. 345, 346, 392-93, 420-21); the remaining times the trial
court either ordered her to answer as the answer was not
privileged or ordered her to answer giving her immunity from
possible prosecution related to those answers. (T. 337, 341,
350-53, 396-97, 421-23, 442, 461, 473.) When the trial court
allowed her to assert her privilege, the court made it clear to
the jury that the question was asked solely for purposes of
credibility and the jury could consider her refusal to answer
as an answer negative to Rivera. (T. 345, 346, 388-89, 392-93,
The Victim's Father Spoke to Two Jurors During a Trial Recess
During a lunch recess, San Martin's father approached two
jurors sitting on a bench, identified himself and attempted to
chat with them. (T. 427, 431-35.) The jurors immediately
reported the incident to a court officer and the judge
questioned each of the two jurors separately. (T. 427, 430.)
One of the jurors explained the incident as follows:
A JUROR: What happened is we were standing at the juror
benches waiting to come into the courtroom. This was ...