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FIGUEROA v. PORTUONDO

November 10, 1999

CARLOS FIGUEROA, PETITIONER,
v.
LEONARD PORTUONDO, SUPERINTENDENT SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Hellerstein, District Judge.

  OPINION

On July 8, 1981, Carlos Figueroa, the Petitioner, and two others were convicted after trial in the Supreme Court, Bronx County, of holding up a gasoline station and the killing of its owner. Petitioner, however, was not identified by witnesses as having taken part in the robbery or homicide, and no physical evidence linked him to the crime. The sufficiency of the real and testimonial evidence was questionable. Petitioner made three statements that placed him at the scene of the crime, but he denied active and willing participation in either the robbery or the shooting. The jury was able to convict him because the redacted confessions of a non-testifying co-defendant necessarily implied his participation.

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), established the Constitutional principle that it is improper to prove one person's guilt by introducing into evidence, an out-of-court confession of a co-defendant. The prejudicial effect is so great, the Supreme Court held, that a jury cannot be expected to heed a cautionary and limiting instruction. That effect was produced in this case. And as this case shows, an ineffectively redacted confession created the very prejudice that Bruton sought to prevent.

The conviction in this case is nineteen years old, and Respondent raises both a statute of limitations and a laches defense. But the statute of limitations issue has been resolved against Respondent's position*fn1, and the laches defense suffers from a failure to show specific prejudice by virtue of the delay. Thus, my duty is to apply the United States Constitution to this case regardless of how long ago the conviction occurred. State court convictions and considerations of federalism must be respected, see, e.g., Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), but there cannot be compromise to the Constitutional requirement of a fair trial, see, e.g., Klein v. Harris, 667 F.2d 274, 292 (2d Cir. 1981) (Kaufman, J., concurring).

I hold, therefore, pursuant to 28 U.S.C. § 2254, that a writ of habeas corpus should issue, that the defenses of limitations and laches do not apply, and that state remedies have been exhausted. Petitioner was convicted on the confessions of a non-testifying co-defendant, for the failed redactions of those confessions pointed inexorably to Petitioner's participation in the felony murder. Without those confessions, it is doubtful that the jury would have convicted Petitioner. The Sixth Amendment to the United States Constitution, guaranteeing fair trial and confrontation of witnesses, was violated and Petitioner's conviction must therefore be vacated.

I. Facts

A. Overview

On or about December 9, 1980, Hector Rivera, Raymond Bermudez, and Petitioner, Carlos Figueroa, were indicted, and in June 1981 the three were tried and convicted of felony murder. On August 19, 1981, Petitioner was sentenced to a term of 25 years to life imprisonment. See Petition for a Writ of Habeas Corpus, April 11, 1997, ¶¶ 2-3 ("Petition"). The facts, as the prosecutor told the jury in his opening statement, were as follows.

In the early morning hours of October 3, 1980, a red Vega, driven by co-defendant Bermudez, and occupied by Petitioner, co-defendant Rivera and a fourth man, Tony Colon, drove into a Shell gas station on Bruckner Boulevard in the Bronx.*fn2 An unidentified number of men got out, and went inside the gas station office to ask for change for a cigarette machine. Other customers were in the office, along with Louis Martinez, the night manager, and Gilbert Ortiz, a gas station attendant, and the men returned to their car.

A short time later, the red Vega returned for gas. Three men armed with pistols exited the car, charged into the office, struck the attendant Ortiz on the head, and took cash from the register. The perpetrators searched for a safe, threatened Martinez and Ortiz with their lives, and eventually found a safe. At that point, co-defendant Rivera drove a second car, a tan 1972 Oldsmobile, into one of the gas station bays, and two of the perpetrators dragged the safe to the car while another guarded Martinez and Ortiz at gunpoint. Another person, a witness to the event, Bernard O'Hara, on his way home from a baseball game, pulled into the station to ask for directions, was confronted by one of the perpetrators, and was forced into a rear locker room. The perpetrators then broke into O'Hara's car and found a .22 caliber pistol under his seat.

The owner of the gas station, William Hendricks, drove by, came into the office, and was struck by a perpetrator on the back of his head. As he fell, he reached for a .38 caliber pistol in his ankle holster, but one of the perpetrators shot him first. Hendricks, however, managed to fire his gun and struck Martinez in the hand. Bermudez returned to the office, saw Hendricks lying on the floor, and grabbed Hendricks' .38 caliber gun. The perpetrators fled; Martinez ran to stop a car for help; and O'Hara emerged from the rear locker room to find Hendricks lying on the ground, dead.

B. The Severance Motions

Based on pre-trial statements made by each co-defendant, and indications that none would be a witness at trial, Figueroa, Rivera and Bermudez, relying on Bruton, moved for separate trials. (Tr. 2-6). On June 15, 1981, the Court held a hearing. (Tr. 1-15). Petitioner Figueroa argued that he was entitled to a separate trial because his statements showed only his presence at the scene, and not that he participated in either the robbery or the shooting. (Tr. 10). The People opposed, arguing that each defendant "confessed to substantially the same thing." (Tr. 12). The Court denied the severance motions, ruling that redactions of the statements would prevent the statements of each from implicating any other defendant. (Tr. 14-15).

C. The People's Case in Chief

The People presented three eyewitnesses to the robbery and murder, the policemen who arrived at the scene, and redacted statements from two defendants. I discuss each category of proof below.

1. The Testimony

The prosecution first called the three witnesses who were present at the Bruckner Boulevard gas station during the robbery: O'Hara, who drove into the gas station to ask for directions, and Ortiz and Martinez who worked at the station. None could identify Figueroa as having been involved in the incident. (Tr. 107, 138-40, 149-50, 162, 168, 170, 174-75, 202, 360, 371 & 374-75). O'Hara testified that he saw two people (Tr. 149-50); Ortiz testified that he saw two or three people (Tr. 158 & 166-67), but also that he saw three or four (Tr. 177-78); and Martinez gave conflicting testimony on whether four or five people were involved (Tr. 215, 288, 305, 362-63 & 374-75). To add to the confusion, in the course of questioning Martinez, Rivera's attorney and the People intimated that four people were involved. (Tr. 363, 374-75).

The three police officers who arrived at the scene after the crime and who arrested the defendants were also unable to inculpate Figueroa. Police officer Joseph Monteleone, who arrested Bermudez on October 16, 1980, two weeks after the incident, found him in the front passenger seat of a tan Chevrolet that fit the description of the second robbery car. Police officer Monteleone recovered a .38 caliber handgun from the car, (Tr. 405-09), and an empty holster for the .38, both fitting the description of the weapon taken by the robbers from William Hendricks, the owner of the gas station who was shot and killed. (Tr. 414, 416-18). Petitioner was not with Bermudez on the night Bermudez was arrested. (Tr. 429-30). Police officer James Dungan, who assisted officer Monteleone in arresting Bermudez, testified to the same effect. (Tr. 434-39). Upon objection by Figueroa, the Court admitted the .38 caliber handgun and the holster recovered from Bermudez against Bermudez only and gave a limiting instruction to the jury. (Tr. 452-53). The third police officer, John Corcoran, arrived at the gas station soon after the robbery and shooting took place, and gave general testimony concerning the scene of the crime, also without inculpating Petitioner. (Tr. 482-83).

The People also called a ballistics expert and a forensic pathologist to testify about the bullet that was extracted from William Hendricks, and that the cause of death was a gunshot wound to the chest. (Tr. 734-39, 870-76, 880 & 882). However, the bullet, a .22 caliber, was too deformed to enable the ballistics expert to determine the specific weapon from which it had been fired. (Tr. 740-41). Finally, the prosecution called William Hendricks' wife to identify him and his .38 caliber revolver. 614-15).

2. The Defendants' Statements

The Court, after having denied defendants' motions for separate trials, redacted the statements by replacing the names of the co-defendants with non-specific phrases like "one a guy," "the other guy" or "another guy." (Tr. 510-23). Unfortunately, however, the context of the references, and the manner of use during trial, made it clear that Petitioner's name was the name that had been redacted; thus, the very purpose of the redaction was compromised.

a. Rivera's First Statement

The first statement the People introduced into evidence was given by Rivera to the detective in charge of the investigation, John Farrell. (Tr. 524-28). Before the statement was introduced, the Court instructed the jury that the statement was being offered against Rivera only, and that the statement should not be considered against Bermudez or Petitioner. (Tr. 528-29). The Court noted that Rivera's statement referred to other people and that the jury should not attempt to speculate who were those other people: "It's not your concern whether or not [Rivera] was talking about the other persons involved in this trial. . . ." (Tr. 529). The Court then gave the following additional instruction:

  Now, one other thing. Normally when a statement the
  officer testifies from his memory as to the
  statement. I am making an exception here and the
  officer will be permitted to read the statement. The
  reason I have done that is because what I have just
  mentioned to you a few moments ago, relating to other
  persons, and he is being permitted to testify only to
  the statement made by Rivera, without regard to other
  persons, even though the expression "other guy" or
  "other persons" will be used, and that's the only
  reason the detective will be permitted to read his
  statement.

(Tr. 529).

Detective Farrell then read Rivera's statement to the jury. The statement began with Rivera's admission that he and his co-defendants intended to commit the robbery: "We were driving around and decided to stick up the gas station." (Tr. 530). Continuing, Rivera admitted that he was driving a stolen 1972 brown Oldsmobile, (Tr. 530), and that "one guy" had a 9 millimeter handgun and "another guy" had the .22 caliber revolver stolen from O'Hara's car. (Tr. 530). Rivera claimed not to have had a gun. (Tr. 530). Rivera was standing at the driver's side of his car, while "one guy and Tony were taking the safe out of the office. . . ." (Tr. 531).

At this point, the Court interrupted Detective Farrell's reading, and instructed the jury why "Tony" had not been replaced by "a guy."

  Let me stop you there, Officer. You heard the officer
  use the word "Tony." Tony is not one of the defendants
  in this case, that's the reason his name is being
  used. All right.

(Tr. 531). Detective Farrell clarified that "Tony" referred to "Tony Colon." (Tr, 531).

Rivera's statement then described the shooting of Hendricks, how Rivera and Colon fled in Rivera's car, while "[o]ne guy and another guy" fled in the red Vega, (Tr. 532), and that "one of the guys" took Mr. Hendricks's gun. (Tr. 533). Rivera stated that "[m]e, two others and Tony" committed the robbery (Tr. 533), that while he was waiting near his car, "[o]ne guy was in the office with the other two guys [and that] the other two guys were getting the safe" (Tr. 533); and that one guy shot Mr. Hendricks with the .22 caliber revolver found in O'Hara's car. (Tr. 533).

Later, during Detective Farrell's redirect by the prosecutor, the following exchange took place:

  Question: Did [Rivera], during the course of the
    statement, give you names of specific perpetrators?

Mr. Zapata: Objection.

Mr. Marshall: Objection.

Mr. Bruce: Objection

The Court: Don't answer that question Officer.

Mr. Marshall: I reserve an application.

  The Court: That question is not to be asked again or
    anything similar to it, sir.

(Tr. 552-53).*fn3

After Detective Farrell's testimony, Bermudez moved for a mistrial, arguing that the Court's previous instruction to the jury regarding use of Colon's name and the prosecutor's question prejudiced Bermudez's rights:

  The district attorney's question to the police
  officer, although it wasn't answered, as to whether or
  not the defendant Rivera named specifically the other
  people who were allegedly with him at this time, taken
  together, your Honor, with your previous instruction
  to the jury, while the detective was reading the
  statement concerning why Tony's name remains in
  because he is not a defendant in this case, I think
  the two taken together, your Honor, will require any
  juror who was paying attention and hear, to come to
  the conclusion that this defendant, my client's name
  was named, was in the statement, and is no longer in
  the statement because he is a defendant in this case,
  whereas Tony Colon is not a defendant in this case,
  and that's why his name still appears in the
  statement.

(Tr. 556-57). Petitioner joined the motion, arguing that "the inference to the jury is such that it becomes a jigsaw puzzle, just by a mental deduction they can then come to a conclusion that the names that are not mentioned are the names of the defendants." (Tr. 558). The Court denied the motions, but addressed only the point about the prosecutor's question, not the Court's prior instruction to the jury:

  When that question was asked the Court immediately
  told the witness not to answer it and admonished the
  assistant district attorney and directed that no such
  question or similar question be asked. I believe the
  correction was prompt, on the scene, so to speak, and
  no prejudice resulted. Motion for a mistrial denied.

(Tr. 557).

Later, Detective Farrell was recalled, and the prosecutor sought to mark for identification a written copy of Rivera's statement. (Tr. 640). The Court, in the jury's hearing, commented, "I believe you have it, I have a photocopy of it, mine is an unredacted copy." (Tr. 641). Rivera's and Bermudez's attorneys moved for a mistrial, but the Court denied the motion, commenting, "I told them yesterday certain changes were made in the statement by me to eliminate what I considered material that shouldn't be in there. They were told that yesterday." (Tr. 644). Petitioner's attorney pressed and argued that "[t]he Court cannot ever tell the jury that any changes have been made" to a confession, (Tr. 644). The Judge replied, "[t]hat was told to them yesterday" and "[t]he jury knew about this all along." (Tr, 645).

b. Rivera's Second Statement

The People introduced a second statement made by Rivera, in the form of his testimony before the grand jury. The prosecutor again argued against redaction, urging that Bruton did not apply "when one defendant makes a statement which another defendant also makes, where they each refer to the other." (Tr. 561). The Court again rejected the argument, reasoning that "[i]t is more than that. It is more than just referring to the other. It is where the statements are substantially the same." (Tr. 561). The prosecutor pressed further, and argued that the statements were "duplicative in their description of crucial facts." (Tr. 562). Petitioner countered and urged that his several statements, although admitting his presence at the scene of the robbery, did not amount to an admission that he was a participant in the robbery, whereas Rivera's statements clearly inculpated him. (Tr. 561, 562-3). The Court ordered that Rivera's grand jury testimony could be redacted to avoid prejudice, and could then be read to the jury. (Tr. 563).

Thus, the jury heard from Rivera's out of court grand jury testimony, that "the guy" in his car and "the other two guys" from the second car robbed the gas station and ordered Rivera to be a lookout, (Tr. 767), and that Rivera wanted nothing to do with the robbery but was forced at gun point to serve as a lookout (Tr. 767-68). Rivera admitted to driving around in a brown and white '72 Oldsmobile with his girlfriend in the early morning hours, and that after dropping off his girlfriend and getting "a joint or something," he met "with three guys" (or "these guys," the transcript is unclear). (Tr. 769-772). Rivera, continuing somewhat inconsistently, stated that he saw "[o]ne guy and another guy named Tony Colon," and that "one of the guys" suggested that they drive around. (Tr. 772-73). Rivera and "one guy" then followed the red Vega and Colon to the gas station. (Tr. 773). Rivera claimed that the guy in his car did not have any weapons, and that one guy told Rivera to wait while Colon and the two other guys got out of the car and walked into the gas station (Tr. 778). Rivera then stated that a guy called him into the station, that he saw the two attendants sitting in chairs, and that one guy, who had a nine millimeter pistol, told Rivera to serve as a lookout. (Tr. 778). Colon, Rivera said, did not have a gun and, apart from the nine millimeter, he saw no other guns. (Tr. 778).

According to his statement, Rivera was outside the station office, near the gas pumps, and "the other guys" were inside. (Tr. 779). After about ten minutes, "one of the guys" told Rivera that they were going to put a safe in Rivera's car and to drive his car into one of the gas station bays. (Tr. 781-82). William Hendricks, the gas station owner, then pulled into the station, (Tr. 783), and Rivera saw "a guy" hit Hendricks in the head with a gun and saw "one guy" shoot Hendricks. (Tr. 784). Rivera also saw Hendricks reach for his gun and fire a shot. (Tr. 784). After the shooting, "one guy" ran outside and told Rivera to "get out of here." (Tr. 785). Rivera and Colon then drove off together. Rivera dropped off Colon, and drove home. (Tr. 785-86).

The next day, one of the guys got in contact with Rivera and told Rivera that "another guy" had placed a box with a shotgun inside Rivera's car. (Tr. 786). The shotgun belonged "to the other guy." (Tr. 786). Rivera testified that he did not know the box was in the car, but that during the preceding evening he saw one of the guys with a box. (Tr. 787). Although Rivera claimed to have been forced at gun point to serve as a lookout by a man he described as a "drug addict" and "maniac," Rivera willingly drove to one guy's house the day after the shooting to return the box with the shotgun inside. (Tr. 788).

c. Petitioner's First Statement

On November 15, 1980, Detective Farrell and his partner, Detective Adalberto Riquelme, took the first of three statements from Petitioner. (Tr. 616-19). Again, the prosecutor argued that Rivera's statements interlocked with Petitioner's, (Tr. 579), and again the Court rejected the argument and redacted Petitioner's statements (Tr. 579). And, as before, the Court instructed the jury:

  Again, in view of the extended conference between the
  Court and counsel, as I ruled yesterday as well, the
  officer will be permitted to read from the Statement

  rather than from memory; is that correct, counsel?

(Tr. 619). Counsel did not object. (Tr. 619).

Petitioner's first statement, a brief one, began with the admission that "[w]e met at someone's house," left with "one guy," returned to Petitioner's home, found that Petitioner's wife was not there, and "went back to one of the guy's houses." (Tr. 619-20). Then, with Petitioner in "another guy's car" and Colon "in the other guy's car," and one car following the other, the two cars arrived at the gas station. (Tr. 620). Petitioner stated that the others "decided to stick up the gas station," but Petitioner "told them [he] did not want any part of it." (Tr. 620). Petitioner stated that he left "the guy's car" and walked across a nearby bridge. (Tr. 620). After Colon and the two other guys finished robbing the gas station, Petitioner stated that "one guy" picked him up. (Tr. 620). Two days later, Petitioner saw "two of the guys" and asked if someone had been shot at the gas station. One of the guys responded, "I don't know. I don't know." (Tr. 620).

d. Petitioner's Second Statement

Twenty minutes later, still in the police station, Petitioner gave a second statement. (Tr. 624). Petitioner now stated that when he went with the three guys to the gas station, he "knew they were going to stick it up." (Tr. 624). Petitioner told his friends that he did not want to go into the gas station, but "one guy" "told me to shut up." (Tr. 624-25). "One guy and Tony" then went into the gas station's office and both of them had guns. (Tr. 625). Petitioner withdrew from the scene and went, not to a nearby bridge as he had claimed in his first statement, but to the back of one of the bays in the gas station:

  I went all the way into the back of the bay. I never
  had a gun, I didn't shoot anyone. I was in the back
  and I heard a shot so I ran and got into the car with
  another guy. . . . I know I was there and was part of
  it, but I did not shoot anyone and I never had a gun.
  Man, I don't even know anything about guns, I never
  had one in my life and you got to believe that. I
  swear to God on my kid and I never shot anyone.

(Tr. 625). In answer to the detective's question, Petitioner answered that "[t]here were four of us," including "Tony Colon," and that one of the guys told him that Colon had fled to Puerto Rico. (Tr. 625, 627).

At the gas station, Petitioner saw that "[a] guy had a nine millimeter and Tony had a big long gun, I think it was a 45." (Tr. 627). Petitioner said that "[s]omeone hit [Hendricks] with the nine millimeter and [Hendricks] fired a shot. I heard clapping like an automatic trigger being pulled without one in the chamber," and a "kid" got hit in the hand, and that he heard another shot, perhaps three shots in all. (Tr. 628-629). Petitioner got into a car and left with another guy. (Tr. 628-29). The detective asked Petitioner about the "sawed-off rifle," and Petitioner said it "was in the other car." (Tr. 629).

e. Petitioner's Third Statement

Petitioner gave a third statement that night, to an Assistant District Attorney. Petitioner stated that "me and two guys, and [Tony] Colon" went to the station and bought some stuff. (Tr. 708). Petitioner was in "one guy's car" and Colon was in the other car. (Tr. 708-09). Petitioner stated that he was in the "back of the station," "back by the far end of the corner." (Tr. 709). Someone came into the station, and Colon "snatched" him and brought him to the back of the station. (Tr. 709). Colon and "another guy" both had guns, and Petitioner, although not seeing anyone get shot, heard two shots go off. (Tr. 709-10). Petitioner then tried to further distance himself from the critical events:

  I ran out, I ran outside, you know, I didn't, I didn't
  want nothing to do with

  it, you know. I was there, so I am involved as it is,
  I am telling the truth, that's why I asked for this.

(Tr. 710). Petitioner got into "another guy's car," and Colon and "the other guy" got into ...


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