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Latterell v. Conway

April 25, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Charles Latterell ("Latterell" or "petitioner") filed a pro se petition in this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1999 conviction in Monroe County Court for various sexual offenses and assault. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


On the morning of June 26, 1999, Elana Shandalov ("the complainant") was beaten and sexually assaulted as she left Bally's Health and Fitness Center ("Bally's") in the Town of Henrietta following her workout. Latterell fled the scene in his van but was arrested later that day after the police were able to trace his license plate number. On August 5, 1999, a Monroe County grand jury returned an indictment charging Latterell with multiple counts of first degree sodomy, attempted first degree sodomy, aggravated second degree sexual abuse, and third degree assault.

Trial commenced on November 8, 1999, in Monroe County Court (Marks, J.). The proof at trial revealed that at about 8:15 a.m., as the complainant was walking towards her parked car after leaving Bally's, she noticed Latterell sitting in a green van. The complainant had entered her car when Latterell approached her. She asked him what he wanted, and he responded, "I want to lick your pussy." Latterell then opened her driver's side door and pushed her. T.230-33, 251.*fn1 At that point, the complainant observed a pair of scissors and a blue cloth in petitioner's hands. Latterell told her, "You don't want me to kill you, do you?" When the complainant replied, "No," Latterell told her that he wanted to take her to a motel. T.235. As the complainant struggled to escape, Latterell struck her in the head and body several times with his fist. The complainant also sustained injuries from the scissors he was holding. T.237-38. As the complainant screamed for help, Latterell unsuccessfully attempted to gag her. The complainant managed to break free from his grasp and escape the car. T.239-40.

However, petitioner quickly caught up with her and dragged her to a secluded area in the parking lot where he violently pulled up her skirt, ripped off her panties, and digitally penetrated her vagina. T.242-45. During the assault, the complainant attempted to engage petitioner in conversation and negotiate herself out of further abuse; for instance, she asked petitioner about his wedding ring and why he could not find a girlfriend with whom to do this. T.242-45. Latterell then sodomized the complainant by putting his mouth on her vagina; he again told her that he wanted to take her to a motel. The complainant responded, "If you want to rape me, rape me here, I'm not going anywhere." Petitioner stated that he wanted oral sex from her and moved closer. He unzipped his pants and exposed his penis to her. As he did so, the complainant noticed petitioner's underwear, which she recognized at trial. T.245-46, 259-61.

As Latterell attempted to arouse himself, the complainant noticed that he was constantly glancing around the parking lot. Seeing this as a chance to escape, the complainant jumped up and started to run away. Petitioner chased her and grabbed at her skirt, but the complainant managed to break free and run towards people standing the parking lot, screaming that she had been raped. T.247-49.

Minutes before that, as probation officer John Zito ("Zito") was leaving Bally's, he heard a woman screaming for help. He went to investigate and, from about twenty yards away, saw the complainant fleeing from Latterell who was in the midst of zipping up his pants. T.286-87, 291, 293. Zito saw something blade-like in petitioner's hands as petitioner attempted to pull the complainant down to the ground. Zito drew out his off-duty pistol and ordered petitioner to stop and get down. T.293. Petitioner ignored this command and continued to run toward Zito. T.294-98.

Petitioner them jumped into his van and attempted to hit Zito by backing into him. Zito fired his gun at the van as petitioner drove away and managed to write down a partial license plate number. T.300-03. Zito then engaged in a car chase with petitioner but lost sight of him. Zito flagged down a sheriff's patrol cruiser and informed the deputies of what had just transpired at Bally's. T.303-07, 348-51. Zito described the victim as beaten and severely injured and recalled that petitioner had dropped the blade-like item he was holding before he fled the scene.


Ed White ("White") and his step-daughter, Mary Phillips ("Phillips"), observed the aftermath of petitioner's attack on the complainant and Zito's pursuit of Latterell. Phillips assisted the complainant into Bally's while Zito chased after petitioner. White and Phillips then joined in the car chase and testified about how petitioner repeatedly rammed his van into White's car in an attempt to lose him. T.322, 335-36. As a result, the front license plate of petitioner's van fell off; the police later recovered it and used it to obtain petitioner's name. T.340, 354-57, 368. White attempted to open the driver's side door of petitioner's van while they were stopped at a light, but he failed and soon lost sight of the van in traffic. T.338.

At the crime scene, the police recovered a pair of scissors from inside the complainant's car. They also found the blue cloth petitioner used to try and subdue the victim near the car, and they located the complainant's panties nearby. T.223, 358-62, 370. The complainant identified petitioner, as well as the scissors and the blue cloth, at trial. T.236, 259-61.

That evening, deputies from Ontario County Sheriff's Department located petitioner sitting in his van. He had cut his wrists in an apparent suicide attempt, so the police brought him to the hospital for treatment. T.380-85. While at the hospital, Deputy Paul Hagen ("Hagen") described petitioner as calm, cooperative and coherent. According to Hagen, petitioner stated that he had relapsed into using cocaine and did not want to hurt anyone else. T.386. However, Latterell refused to give a statement to police and asked for an attorney; the public defender's office then was notified. Subsequently, pursuant to a search warrant, the police recovered hypodermic syringes in petitioner's van. T.396-97, 412. The police also seized petitioner's underwear as evidence, which the complainant identified at trial. T.259-61.

Petitioner's trial counsel put forward a defense of intoxication, claiming that petitioner was too high on cocaine to have formed the necessary intent to commit the crimes with which he was charged; she argued that petitioner's actions were not those of a "rational man." T.209. Latterell took the stand and testified that he was a long-time cocaine addict. T.439. He described how he had injected himself with five doses of cocaine on the morning of the incident before going to work and had driven to Bally's where he parked his van and injected more cocaine.

T.441-44. He stated that he injected himself with an "extremely large amount" at Bally's. T.445. Latterell described feeling extremely paranoid and suffering hallucinations just prior to the attack. T.442, 445. He also testified that ...

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