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Lizardi v. Ercole

February 15, 2006

CARLOS LIZARDI, PETITIONER,
v.
ROBERT ERCOLE, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Carlos Lizardi petitions for a writ of habeas corpus challenging his 2002 conviction in the Supreme Court of the State of New York, Kings County, following a jury trial, of multiple counts arising out of an armed robbery and assault of a family in their home in Brooklyn. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

On the afternoon March 21, 2002, Santa Heredia was home with her husband, Juan Olivo, at 193 Palmetto Street in Brooklyn. Heredia was in the kitchen. Olivo was sitting in the dining room, having just arrived home from his job for lunch. At approximately 2:30 p.m., two men entered the apartment. One approached Heredia from behind, put a gun to her neck, and told her not to move. The other approached Olivo and pointed a gun at him. The intruders spoke Spanish. Heredia and Olivo, immigrants from the Dominican Republic, identified the accents as Puerto Rican.

Making efforts to shield their faces, the intruders took Heredia and Olivo to the living room, bound them with duct tape, and covered them with a blanket. They demanded to know where the money was, threatening to kill Heredia and Olivo if they did not comply. Heredia led the men to a drawer in the bedroom where she had $1,000, and showed them where her purse was. The intruders then returned her to the living room and covered her with a blanket, where she pled for her life. The intruders stepped on her hand, causing it to swell.

The intruders also took $500 from Olivo's wallet, as well as his jewelry and cellular telephone. They beat him in order to elicit information about more money, but Olivo told the men that he had given them all the money already.

While the intruders were searching the house for more money or valuables, ten year-old Magalys Olivo arrived home from school. One of the men met her at the door and led her to her room, without allowing her to see his face. He initially told her that he was a police officer. At some point soon after her arrival, Magalys was restrained with rope in the living room and covered with a blanket. Magalys wept during the ordeal, asking for her parents.

The intruders left the house with video equipment, Heredia's cellular phone, several thousand dollars that represented the proceeds of a tax refund, as well as the cash, jewelry, and cellular phone discussed above.

Police officers who responded to a 911 call were able to lift a fingerprint from the tape that bound Olivo's legs. Police later identified the print as belonging to Lizardi. Approximately one month after the incident, Heredia was shown a lineup that included Lizardi. She immediately identified him as the man who had pointed a gun at her husband shortly after the men entered the apartment. Neither Olivo or Magalys were able to identify Lizardi.

Lizardi was arrested and charged with the following crimes: two counts of burglary in the first degree; two counts of robbery in the first degree; two counts of assault in the second degree; two counts of robbery in the third degree; two counts of criminal possession of a weapon in the fourth degree; four counts of robbery in the second degree; burglary in the second degree, grand larceny in the third degree; assault in the third degree; endangering the welfare of a child; three counts of kidnapping in the second degree; three counts of unlawful imprisonment in the second degree.

B. The Procedural History

1. The Trial Court Proceedings

At trial, the prosecutor's opening statement emphasized the "unspeakable terror" that the victims suffered when they were "tied like animals." Tr. 16. The prosecutor also highlighted the immigrant family's hard work to seek a better life in the United States, and attempted to further dramatize what Heredia and Olivo might have been experiencing during the events on March 21, 2002. Tr. 18-19. The prosecutor then discussed the suffering that Magalys must have felt upon her return home from school, and generally referred to the events described above as a "reign of terror." Tr. 21. When defense counsel objected to certain of these remarks, the court issued limiting instructions to the effect that ...


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