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DEVINO v. DUNCAN

April 22, 2004.

RAHEEM DEVINO, Petitioner, -v- GEORGE DUNCAN, Respondent


The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

Raheem DeVino ("DeVino") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1996 murder conviction following a jury trial.*fn1 DeVino asserts three claims in his petition: (1) the trial court erroneously denied his pretrial suppression motion without a hearing; (2) evidence of an uncharged drug crime was improperly admitted at trial; and (3) the prosecutor made improper remarks during the opening and closing statements that deprived DeVino of a fair trial.

  The case was referred to Magistrate Judge Frank Maas for a Report and Recommendation ("Report"), which was issued on February 11, 2004. The Report recommends that the petition be denied, and that a certificate of appealability not issue. DeVino has filed objections to the Report. This Opinion adopts the Report. The petition is denied.

 Background

  The facts established at trial are set forth in the Report, and are summarized here. In February 1994, DeVino lived with his childhood friend, Dorothy Pena ("Pena"), and her boyfriend, Steve McCormick ("McCormick"), in Pena's apartment. Pena occasionally transported drugs for DeVino. On the morning of February 20, 1994, DeVino woke McCormick and asked McCormick to accompany him to an apartment on the tenth floor of their building. DeVino explained that he had "bucked two bitches in the head for fucking up some work" and wanted to retrieve the bullet casings from the location of the shooting. DeVino opened the apartment on the 10th floor with a key, and, from the doorway, McCormick heard a person moaning in what seemed to be a "last minute of life." McCormick went back downstairs and returned to bed. About five minutes later, DeVino came back downstairs, having located only one bullet casing. DeVino placed a black .9 millimeter semiautomatic pistol under his mattress, and told McCormick that he had put a pillow over one victim's head before shooting her.

  Shortly thereafter, DeVino called his girlfriend, Tawana Parsons ("Parsons"), and asked her to meet him at the building. When Parsons arrived, DeVino told her that he had shot two people who had "smoked his stuff." Several hours later, McCormick overheard DeVino telling Quinzel Taylor ("Taylor") that the .9 millimeter gun they had jointly purchased for "protection" now had "two bodies on it." DeVino repeated that he had shot one woman in the head through a pillow. DeVino added that he used a towel to clean his fingerprints from the scene. Pena also overheard DeVino tell others that he "had to do the two bitches on the tenth floor upstairs."

  Two days later, on February 22, the police discovered the bodies of Toni Pate ("Pate") and Bridget Robinson ("Robinson") in Apartment 10J. Both victims were found with pillows over their heads. One of the pillows appeared to have been pierced by a bullet. Autopsies revealed that Pate and Robinson had ingested a significant amount of cocaine approximately two hours before they were killed. In Pate's apartment, the police found a bullet casing that, along with a bullet and bullet fragments recovered during the autopsies, had characteristics consistent with .9 millimeter ammunition from a semiautomatic weapon. The police also obtained seven sets of fingerprints from the apartment, but none matched DeVino's fingerprints.

  On May 8, 1994, Pena, who had traveled with DeVino to North Carolina to make a drug delivery, was arrested after police officers found drugs during a search of her bags. DeVino was not charged. In August, after pleading guilty to the drug charges, Pena disclosed information to Detective George Daley ("Detective Daley"), one of the homicide detectives on the Pate/Robinson murders, that made DeVino a suspect in the homicides. On February 23, 1995, McCormick was arrested in New York City on charges of trespassing and resisting arrest. While at the precinct, McCormick asked to speak to a detective about the Pate/Robinson murders, and was interviewed by Detective Daley.

  The following week, DeVino and Taylor were arrested in New Bern, North Carolina. After New York City police were notified, Detective Daley traveled to North Carolina. Taylor declined to speak to Detective Daley without a lawyer, but DeVino agreed to an interview. In a signed statement, DeVino admitted to having been inside Pate's apartment, but denied that he had killed the women. DeVino explained that, on the morning of the shooting, a man known to him only as "Mel Murder" ("Mel") rushed down the stairs of the apartment building and told DeVino that he had killed the women upstairs. DeVino, on Mel's request, attempted to sanitize the murder site. When asked about Mel's whereabouts, DeVino said that Mel was no longer alive.

  The following day, in the presence of his attorney, Taylor told the detectives that DeVino had admitted to killing Pate and Robinson. Taylor also disclosed that, at some point while they were both in the North Carolina jail, DeVino had told him to tell the detectives that "Melvin did the murder."

 Pre — Trial Proceedings

  Prior to trial, DeVino filed a motion to suppress his statements to the police on the ground that they were involuntary and that his arrest was not supported by probable cause. DeVino sought a hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979).*fn2 By Order dated May 31, 1995, the trial judge granted DeVino's request for a hearing with respect to the voluntariness of his statements, but declined to hold a Dunaway hearing. According to the judge, DeVino had "failed to set forth sufficient factual allegations to warrant a suppression hearing to resolve issues of fact and law." As a result of this ruling, the prosecution was permitted to establish at trial that, when questioned by Detective Daley, DeVino denied participating in the murders, but admitting trying to clean up the crime scene for "Mel," somebody he knew in connection with a drug transaction.

  Also before trial, the prosecutor sought permission to elicit testimony at trial that the drugs that led to the arrest and conviction of Pena and Taylor had belonged to DeVino. The trial judge granted the application, finding that ...


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