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Roche v. Burge

February 1, 2006

RAMON ROCHE, PETITIONER,
v.
J. BURGE, RESPONDENT.



The opinion of the court was delivered by: Sweet, D.J.

OPINION

Petitioner Ramon Roche ("Roche" or the "Petitioner") has filed for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

Prior Proceedings

The petition for a writ of habeas corpus seeking to set aside Roche's custody under a judgment of the Supreme Court, New York County (White, J.), convicting him of one count of Murder in the Second Degree (Penal Law Section 125.25[1], and sentencing him to an indeterminate prison term of from 25 years to life, was filed December 23, 2004, received by the Pro Se Office on November 1, 2004, and delivered to prison authorities for mailing on October 18, 2004.

The answer of J. Burge ("Burge" or the "Respondent") was filed April 8, 2005, and the response of Roche was received on July 8, 2005.

State Court Proceedings

By New York County Indictment Number 14218/91, filed on January 3, 1992, Petitioner was charged with intentional second-degree murder (Penal Law § 125.25[1]), arising out of Petitioner's intentional murder of his wife Lillian by stabbing her to death after an argument and a violent struggle in their Manhattan apartment on December 27, 1991. On November 18, 1992, Petitioner proceeded to a jury trial before the Honorable Richard B. Lowe, III, and on December 1, 1992 the jury found Petitioner guilty of intentional murder, the only charge that was submitted. On December 22, 1992, Petitioner was sentenced to an indeterminate prison term of from 25 years to life.

Petitioner appealed on December 2, 1996. On May 22, 1997, the Appellate Division, First Department, reversed Petitioner's conviction and remanded for a new trial on the basis that Judge Lowe had given the jury an Allen charge that had impermissibly shifted the burden of proof to Petitioner. See People v. Roche, 239 A.D.2d 270 (1st Dept. 1997).

On September 14, 1998, Petitioner's retrial commenced before the Honorable Renee A. White and a jury. At trial, both the People's and Petitioner's forensic experts testified that Lillian's injuries -- 23 knife wounds -- and the bloody crime scene itself demonstrated that she died from two stab wounds to the chest which were inflicted at the end of a violent struggle throughout the apartment, during which she sustained the other wounds. See pp. 4-27, Exhibit B, People's Brief to the Court of Appeals. To prove that Petitioner was the murderer, the People presented evidence that in the month leading up to the murder, Petitioner and his wife argued frequently. Petitioner's neighbor, Gilberto Franco, testified that Petitioner had told him that he was "tired" of his "crazy" wife and "wanted to leave." Franco testified further that on the day of the murder, at about 4:15 p.m., Franco saw Petitioner and his wife having another one of their arguments in the lobby of their building, and then heard the argument continuing inside their apartment. Franco told the jurors that he had no idea what the quarrel was about, but that at approximately 5:00 p.m. he turned on some music to drown out the noise.

Franco and his mother established that at about 5:30 p.m., Petitioner ran downstairs, yelling that his "crazy" wife had committed suicide. Then, knowing that the police were on the way to a bloody scene where his wife lay dead, Petitioner left his building with a large duffle bag, telling Franco that it contained items that he wanted to hide from the police.

The People also called Phillip Bell who established that while the police were in Petitioner's apartment investigating the murder of his wife, Petitioner and a female companion showed up at an apartment in the building next door, where Bell was located. There, obviously nervous, the Petitioner inspected his clothing, purposely attempted to evade detection when another guest arrived at the apartment, used drugs, and told Bell that he had killed his wife. Although Roche complained about his wife, he did not provide a reason for the murder; he simply said, "I did it."

The People established through Petitioner's sister and his nephew that Petitioner's next stop was his sister's apartment. There he told his nephew that his wife had committed suicide, but privately confessed to his sister that he had killed his wife after an unspecified argument. Police witnesses established that when Petitioner finally showed up at the police station, he provided them with a written alibi statement in which he claimed that his wife had gotten home at about 6:00 a.m.; that she was not feeling well when she got out of bed at about 2:00 p.m.; and that while he was doing household chores, which involved going up and down the stairs, he catered to her needs. Petitioner also wrote in his statement that he had left the apartment sometime after 4:00 p.m., and that when he returned, he found his wife dead. He noted that he thought that she had committed suicide and that he was so distraught that he went to tell his aunt and his sister what had happened.

The defense agreed at trial that Petitioner's wife had been "brutally" murdered after an "intense struggle" in the apartment that ended when she was stabbed twice in the heart. They claimed, however, that the police "got the wrong man." (Defense Opening, 74-77). According to the defense, Petitioner's conduct and statements after the crime were not the actions of a man who had killed his wife, but instead, the "panicky, irrational behavior" of a grief-stricken man who had put himself into a "drug-induced" state upon finding his wife dead. (Defense Opening, 81-85). The defense contended that Petitioner was the innocent victim of unreliable witnesses and shoddy police work by officers who had rushed to judgment in order to "close what they viewed as an unimportant case." (Defense Opening, 85-86, 88). To support that argument, defense counsel made an unsuccessful attempt, through cross examination, to cast doubt on the recollections of Petitioner's sister, Franco, and Bell about their incriminating encounters with Petitioner. Counsel also cross-examined the police and the medical examiner about various tests that, according to the defense, should have been performed to identify the killer. The only defense witness was a forensic pathologist, Dr. Wolf, who agreed that Petitioner's wife had been brutally murdered, but suggested that the murder had happened at a time when Petitioner was not necessarily in the apartment arguing with his wife.

At a charge conference, Petitioner asked the court to charge the jury on the affirmative defense of extreme emotional disturbance, which reduces the crime of Murder in the Second Degree to Manslaughter in the First Degree (Penal Law Section 125.25[1][a] if a defendant has shown by a preponderance of the evidence that the homicidal act was "an understandable human response deserving of mercy," rather than an act of malevolence. People v. Cassassa, 49 N.Y.2d 668, cert. denied, 449 U.S. 842 (1980); see also People v. Patterson, 39 N.Y.2d 288, 302-04 (1976), aff'd, Patterson v. New York, 432 U.S. 197 (1977). To warrant submission of that defense, Petitioner bore the burden of pointing to "sufficient credible evidence" from which the jury could find by a preponderance of the evidence the two elements of the affirmative defense. People v. White, 79 N.Y.2d 900, 902 (1992); People v. Walker, 64 N.Y.2d 741, 743 (1984). The first element, a wholly subjective one, required sufficient proof that Petitioner killed his wife, not out of anger, but rather, while under the influence of an "extreme" emotional disturbance -- a "loss of self control" so "excessive and violent in its effect" that the defendant was actually suffering from a mental infirmity, albeit one not arising to the level of insanity. See Patterson, 39 N.Y.2d at 293; see also People v. Moye, 66 N.Y.2d 887, 890 (1985); Walker, 64 N.Y.2d at 743. The second element required an adequate showing that there was an objectively reasonable explanation or excuse for the disturbance. Penal Law § 125.25(a)(a); People v. Harris, 95 N.Y.2d 316, 318 (2000); White, 79 N.Y.2d at 903; Moye, 66 N.Y.2d at 890. In asking the trial court to submit the affirmative defense, Petitioner told the court that ...


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