The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
Ernest Rogers ("Rogers") filed this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his conviction in Niagara County Court on one count of second
degree (felony) murder and one count of first degree robbery. The
parties have consented to disposition of this matter by the
undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On the morning of July 23, 1992, Rogers' step-father-in-law Roy
Belmont ("Belmont") was found dead in his home, bludgeoned to
death with a tire iron. According to Belmont's step-grandson, who
had been at Belmont's house earlier that evening, the victim had
a wallet full of cash. No wallet was found on the body, however.
Later that afternoon, the police went to Rogers' home where
they found him on his way to work for a cab company. The officers
asked him to come down to the station to answer some questions,
and Rogers agreed. Once there, Rogers initially denied being
present at the victim's house on the night of July 22. When
confronted with witnesses' statements placing him at Belmont's house, Rogers did not respond at first. When the
officers asked him again, he stated that he had last seen Belmont
three months ago at Belmont's wife's funeral. After being
confronted with the witnesses' statements for a third time,
Rogers changed his story again, stating that he and his wife had
argued that night, that she left the house, and that he went
looking for her.
During the interview, the police noticed blood-stains on
Rogers' sneakers, the soles of which appeared to be freshly
washed and discolored as if they had been bleached. The officers
confiscated his shoes and asked permission to search his vehicle
and his house. No tire iron was found in Rogers' vehicle, nor was
the victim's wallet ever was located. However, the police
recovered blood-stained clothes from their search of Rogers'
house. The police subsequently obtained a warrant to collect
fingernail scraping from Rogers; laboratory testing revealed
traces of human blood.
On the night of July 23, the police arrested Rogers and charged
him with three counts of second degree murder (intentional
murder, felony murder and depraved indifference murder), one
count of first degree robbery, and one count of fourth degree
criminal possession of a weapon.
Following a suppression hearing, the trial court found that the
police officers' initial confrontation with Rogers in the
driveway of his home did not exceed the scope of a permissible
stop under the Fourth Amendment. The court also found that Rogers
voluntarily surrendered his shoes to the police and consented to
the search of his vehicle and home. All of Rogers's statements to
the police and the physical evidence seized, including the
blood-stained sneakers, were held to be admissible.
Rogers's first trial ended in a mistrial, the circumstances and
legal implications of which will be discussed below. At the second trial, Rogers was tried
before a jury in Niagara County Court (Hannigan, J.). At trial,
Edmund Davey ("Davey"), Belmont's step-grandson, testified that
he had seen Rogers at Belmont's house on the evening of July 22.
Belmont introduced Rogers to Davey as "Davey's Uncle Ernie."
According to Davey, the two men were discussing future plans to
take Belmont, who was going away on vacation at some point, to
Two of Davey's friends, Anthony Bennett ("Bennett") and Charles
Congi ("Congi"), also were at Belmont's residence that evening.
Davey testified that they had ordered a pizza, and Belmont had
paid for it. According to Davey, Belmont had a "wad" of cash in
his wallet. After watching a rented movie, Davey, Bennett and
Congi left the house at about 9:00 p.m. Rogers was still there
when they left.
On the morning of July 23, Davey went over to Belmont's house
to mow the lawn. When his step-grandfather would not answer the
door, Davey became concerned and contacted the authorities. Lorne
Lally, a firefighter, responded to the scene and discovered
Belmont's body lying on the floor blocking the front door. A tire
iron covered with blood was found at the scene, along with an
envelope bearing a bloody footprint. The police found two bottles
of bleach in the victim's second-story bathroom even though the
washing machine was located in the basement.
The forensics evidence revealed that Belmont had suffered
multiple, severe blunt trauma wounds to his head, neck, shoulders
and hands. The pathologist opined that an object such as a tire
iron could have caused the injuries sustained. The blood-stained
sneakers confiscated from Rogers were found to have Belmont's
blood on the soles as well as the uppers and the laces. The
sneakers also bore a tread pattern similar to that on the
blood-stained envelope found at the victim's house. Finally,
Rogers's shoes were discolored as if they had been bleached. The
bloody clothes found at Rogers's house were found to have type-O
bloodstains. Testing revealed that Belmont had type-O blood, but
Rogers's blood was type-A. Scrapings taken from underneath
Rogers's fingernails yielded human blood.
At trial, Rogers admitted that he had been at Belmont's house
early in the evening of July 22. He stated that he left for a
while and then returned later that night to check on Belmont.
When he arrived the second time, he noticed that the front door
was slightly ajar. He recounted that as he entered the house, he
stumbled over Belmont's body and nearly lost his balance. He felt
Belmont's back and, upon looking down, noticed that Belmont's
head had been crushed. Rogers testified that, panicked and in a
state of shock, he stumbled back out the door, got into his car
and drove home. He claimed that he sat in his car, in a stunned
daze, until his wife came out and found him.
Ricky Rogers, the petitioner's son, admitted that he gave a
statement to the police on July 23. When shown the statement by
the prosecutor at trial, Ricky denied that it helped to refresh
his recollection about what he had said to the police. The
statement was not admitted into evidence, although the jury,
through the prosecutor's questions, heard that Rogers's wife had
been trying to reach him by phone that evening and that she and
Ricky left the house at 1 a.m. to look for Rogers. Ricky
ultimately admitted on direct that Rogers was not home on the
night of July 22 and that he and his mother went looking for him.
Defense counsel elicited testimony from Ricky that Rogers did not
have a tire iron in his car. Ricky also stated that Belmont had
complained to him about a man who had come over to his house on
several occasions and bothered Belmont about a missing check.
The defense called a mechanic named David Kneeple who related
that he had been with Rogers when Rogers originally purchased his taxicab. Accoring to
Kneeple, there was no tire iron in the trunk when Rogers bought
the car. Mary Jane Willimott, one of Rogers' acquaintances,
testified that several months prior to the murder she had gotten
a flat tire and asked Rogers for help. She recounted that Rogers
had told her that he needed to use her equipment to change the
tire because he did not have a tire iron.
At the close of the proofs, the court, sua sponte and over
the prosecutor's objection, dismissed the count of the indictment
charging depraved indifference murder on the basis that it was
inappropriate given the overwhelming evidence of intent. The
court also dismissed the fifth count of the indictment charging
criminal possession of a weapon on the ground that it was
redundant. The jury returned a verdict convicting Rogers of
felony murder ...