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Harris v. Woods

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


May 1, 2006

SHAUN HARRIS, PETITIONER,
v.
WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Paul A. Crotty, United States District Judge:

Pro se petitioner Shaun Harris seeks a writ of habeas corpus from his April 23, 2001 conviction in Supreme Court, New York County, of first degree murder and second and third degree criminal possession of a weapon and concurrent sentences, the longest of which was twenty-five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.)

Harris' habeas petition raises three issues: (1) his initial four-word un-Mirandized statement and his subsequent six Mirandized statements to the police and an Assistant District Attorney, in which he confessed to killing Jacqueline Frezza, were coerced and should have been suppressed (Pet. ¶ 13(1); see Dkt. No. 18: Harris Br. at 16-20); (2) the trial judge denied him the right to present a defense at trial when she precluded the testimony of Harris' brother as irrelevant (Pet. ¶ 13(2); Harris Br. at 21-28); and (3) his sentence of twenty-five years to life for first degree murder was excessive. (Pet. ¶ 13(3); Harris Br. at 29-30).

For the reasons set forth below, Harris' habeas petition should be DENIED.

FACTS

Overview

On April 15, 1999, at about 9:10 in the morning, Shaun Harris rode his bicycle south on Broadway and confronted Jacqueline Frezza, demanding her money. When she refused, Harris pointed a .25 caliber hand gun at her chest, fired and killed Frezza. Harris rode his bicycle from the scene.

On June 3, 1999, based on an eye-witness account, video footage of Harris fleeing the scene, and a tip from one of Harris' friends, Detective Victor Henriquez asked Harris to accompany him to the 26th Precinct to answer questions. Harris accompanied the police to the precinct, and for several hours answered questions about unrelated robberies and crimes of Harris' friends. After six hours, Harris asked why he was at the precinct. When confronted by photographs of Jacqueline Frezza's body and accusations by the police, Harris made an incriminating four-word statement, "It was a mistake." Harris then was given and waived his Miranda rights. During the next few hours, Harris made six detailed confessions to murdering Jacqueline Frezza, including four written statements to Police Detective Terrance Felder and one video-taped confession to an Assistant District Attorney.

On September 25, 2001, Justice Wittner held a suppression hearing to determine whether Harris' initial statement and his six Mirandized statements, in which Harris confessed to the murder of Jacqueline Frezza, should be admissible at trial. (Dkt. No. 11: Suppression Hearing Transcript ["H."] 2-377.) At this hearing, the prosecution called Detectives Victor Henriquez (H. 3) and Terrance Felder (H. 187), and Police Officer Dennis Ryan (H. 160). Harris called his bother, Alvin Hodge. (H. 324.)

The Prosecution's Evidence at the Suppression Hearing Identifying a Suspect

On April 15, 1999, at about 9:10 AM, Jacqueline Frezza was shot and killed on the sidewalk in front of 3150 Broadway, part of the Grant Houses, a public housing project. (Henriquez: H. 4-5, 7, 15.) Detectives Victor Henriquez and Terrance Felder were assigned to investigate the homicide. (Henriquez: H. 4-6, 100; Felder: H. 188-90.) Melvin Wallace witnessed the homicide from his apartment window and provided a physical description of the face, body and clothes of the killer. (Henriquez: H. 7-8, 100-01.) On April 16, 1999, the police produced a sketch based on Wallace's description. (Henriquez: H. 10-11, 101.)

Detective Henriquez obtained video surveillance footage from the security cameras positioned around the public housing project buildings. (Henriquez: H. 12-13.) From this footage, Detective Henriquez observed a man, fitting the description provided by Wallace, fleeing the scene on a bicycle just after the time of the homicide. (Henriquez: H. 14-15, 111-12.) The videos were not sharp enough to clearly show the suspect's face, but provided a general description of the killer's build, clothing and bicycle. (Henriquez: H. 16.)

On May 19, 1999, Detective Henriquez spoke with Keith Goodman, a suspect in an unrelated robbery investigation. (Henriquez: H. 20.) Goodman told Detective Henriquez that he had learned through discussion with his co-defendants that Shaun Harris had killed Frezza. (Henriquez: H. 20-23, 106-08, 116.) Detectives Henriquez and Felder compared the police sketch of the suspect with a photograph of Harris from the Board of Education and found the images to be "identical." (Henriquez: H. 24-25; Felder: H. 191-92.) Detectives Henriquez and Felder also compared the sketch with a more recent image of Harris taken by the same video surveillance system in the elevator in Harris' building and again described them as "identical." (Henriquez: H. 26-27; Felder: H. 193-94.) On May 31, 1999, Detectives Henriquez and Felder observed Harris leaving his apartment building and leaving school, and they described Harris as "the same person" in the police sketch. (Henriquez: H. 31-32; Felder: H. 198-99.)

On May 31, 1999, Goodman told Detective Felder that he had spoken to Harris, who said he had seen the homicide and pointed out its location. (Henriquez: H. 29, 120; Felder: H. 194-96.) With Goodman's permission, Detective Felder placed a hidden "wire" on Goodman to listen in on Goodman's discussions with Harris. (Felder: H. 205; see Henriquez: H. 118-19.) Using this wire, Detective Felder listened to Harris later tell Goodman that "they were killing white ladies right over here" "in front of the telephone . . . I saw blood, blood and her heart. . . . [I]t was nasty." (Felder: H. 205-07; see Henriquez: H. 121-22.) In a later conversation between Detective Felder and Goodman, Goodman mentioned that it was well known on Riker's Island that Harris had obtained status in the Bloods gang because of the shooting. (Felder: H. 210-11.)

Approaching Shaun Harris

On June 3, 1999, at about 1:30 PM, Harris was walking on 125th Street with Goodman and three other individuals. (Henriquez: H. 37-39, 127-29; Felder: H. 211-13.) Detective Henriquez, who was watching Harris, decided to approach Harris and ask him to come to the 26th Precinct. (Henriquez: H. 37-38, 121, 129; Felder: H. 264-65.) Dressed in civilian attire, Detective Henriquez parked his unmarked car ahead of Harris and his friends and "got out and just waited on the sidewalk for them to approach the location." (Henriquez: H. 38-39, 129-31.) Detective Valdez, who was working with Detective Henriquez, stood nearby. (Henriquez: H. 37-39.) Neither man drew his gun nor displayed his handcuffs. (Henriquez: H. 44-45, 133-34.) Detective Henriquez requested the assistance of marked police cars over a hand-held radio, radioing that there was no emergency, he "just wanted some police cars there." (Henriquez: H. 40, 139-40.)

Police Officers Dennis Ryan and Strollo responded to this radio request, using the lights of his marked patrol car and occasionally the siren to move traffic out of the way as they drove to the detectives' location. (Ryan: H. 162-64; see Henriquez: H. 45.)

As Harris and the others approached, Detective Henriquez identified himself and told Harris and the others to step to the side so he could talk to them. (Henriquez: H. 41, 42, 71, 127, 130.) Some of the individuals put their hands up against the window of a restaurant at the edge of the sidewalk, but Detective Henriquez told them to put their hands down and turn around.

(Henriquez: H. 41, 43, 44, 47, 131-32.) Goodman began "mouthing off," and Detective Henriquez told him to "shut the f--k up," and that he was in violation of his parole. (Henriquez: H. 41, 47-48.)

Officers Ryan and Strollo drove up and parked facing into oncoming traffic to be closer to the detectives. (Ryan: H. 164; see Henriquez: H. 46.) The officers turned off their car's lights. (Ryan: H. 164.) Officer Ryan did not have the siren on. (Ryan: H. 164-65; see Henriquez: H. 46.) Officer Ryan observed four individuals, two facing the wall and two facing the street; the two facing the wall turned around and began speaking with Detective Henriquez. (Ryan: H. 165-66.) Two more marked police cars approached with their lights on and shut them off once they had arrived. (Ryan: H. 166-67, 178.) The uniformed officers "just stood around," five to ten feet or more away from Harris. (Ryan: H. 167, 179; Felder: H. 278.) None of the officers drew their gun or took out their handcuffs. (Felder: H. 215; Ryan: H. 168.)

Detective Henriquez told Harris, Goodman and the others, in a conversational tone, "We just want to talk to you guys . . . in the Precinct." (Henriquez: H. 49-52.) Detective Henriquez asked Harris and Goodman to ride to the 26th Precinct in Officer Ryan's police car. (Henriquez: H. 49.) Harris and Goodman agreed, and Detective Henriquez walked with them to the vehicle. (Henriquez: H. 50, 135, 140.) Detective Henriquez patted their pockets and waist area, but did not go into their pockets. (Henriquez: H. 49-50, 140.) Neither Goodman nor Harris was handcuffed. (Henriquez: H. 51, 52; Ryan: H. 168; Felder: H. 216.) Officer Ryan said to Harris and Goodman, "'This way, guys. My car is over here,'" and opened the back door to his police car. (Ryan: H. 168-69.) Harris and Goodman "just got in on their own." (Ryan: H. 169; Henriquez: H. 50-51, 135.)

Detective Henriquez did not say anything about an arrest, nor did Harris ask if he was being arrested or if he could leave. (Henriquez: H. 52.) Haarris was not under arrest at that time. (Felder: H. 265-66, 275.)

Detective Henriquez told Officer Ryan not to speak to Harris or Goodman. (Henriquez: H. 52; Ryan: H. 168.) Officers Ryan and Strollo drove Harris and Goodman to the precinct. (Ryan: H. 170.) Their police car had no "cage" partition separating Harris and Goodman in the rear from the officers in front. (Ryan: H. 162.) The ride was approximately two minutes, without sirens or lights, traveling at average city speed. (Ryan: H. 170.) "We just drove in casually." (Ryan: H. 170.)

Initial Hours at the 26th Precinct

Harris and Goodman arrived at the 26th Precinct at around 1:30 PM. (Henriquez: H. 71, 99, 142-43; Felder: H. 219.) They followed Detective Henriquez up to the detective squad room. (Henriquez: H. 53, 141-42; see Ryan: H. 171, 181.) Harris was not touched or restrained in any way. (Henriquez: H. 53.) Harris and Goodman sat down in a fifteen by eight foot interview room containing a large table, chairs and a bench. (Henriquez: H. 53-55.) The room was well lit and the door to the room, which was damaged and did not close completely, was open a crack. (Henriquez: H. 55-56.) Detective Henriquez asked Goodman to leave the room, leaving Harris alone. (Henriquez: H. 56.)

After Detective Henriquez and Goodman left the room, Detective Felder entered and asked Harris for "pedigree" information. (Henriquez: H. 59, 148; Felder: H. 220-21, 320-21.)

Detective Felder asked Harris if he wanted anything to eat, and Haarris said no but asked for water, which Detective Felder gave him. (Felder: H. 221.) As Detective Henrique, now in a coat and tie, passed the room, Harris came to the door and asked whether he was there because of "him," indicating Goodman. (Henriquez: H. 58.) Detective Henriquez said "no," and Harris responded, "Okay." (Henriquez: H. 58.) Harris did not ask whether he could leave or if he was under arrest. (Henriquez: H. 58; Felder: H. 222.)

Detective Henriquez reentered the room about forty minutes later and introduced himself and Detective Valdez as FBI investigators. (Henriquez: H. 60-61, 72, 146.) This was the first of many deceptions Detective Henriquez employed over the next few hours. (E.g., Henriquez: H. 61-66, 146-48.) During this period, Detective Henriquez pretended to look at important papers in a folder that actually contained miscellaneous papers. (Henriquez: H. 62.) Detective Henriquez told Harris that he was tired from his flight from Virginia, and that he had to go down to "Quantico." (Henriquez: H. 63, 65.) Often throughout these hours, Detective Henriquez would leave the room, or be called away by a prearranged phone call or interruption. (Henriquez: H. 62-66.) Each time Detective Henriquez left the room, he closed the door "where the metal touches," but the door remained unlocked. (Henriquez: H. 63-64.) All the while, Harris sat silently. (Henriquez: H. 66.) At one point, Detective Henriquez inquired whether Harris needed any food, and Harris declined. (Henriquez: H. 63.)

Several hours after Harris arrived at the 26th Precinct, Detective Henriquez reentered the room and began asking Harris questions about robberies Goodman had committed. (Henriquez: H. 66.) Detective Henriquez spoke with Harris about the robberies for about forty minutes, walking in and out of the interview room about ten or fifteen times during this time. (Henriquez: H. 68, 72.) In response to these questions, Harris told Detective Henriquez information about Goodman and the other individuals with whom Harris had been walking. (Henriquez: H. 72-73.) Harris told Detective Henriquez that these other individuals had participated in robberies, that they were gang members, that they possessed many guns, and that they had participated in the "slashing" of a girl in their gang. (Henriquez: H. 73-77.) Detective Henriquez did not do anything during this discussion to make Harris believe he was the target of any criminal investigation. (Henriquez: H. 74.) Detective Henriquez did not ask Harris if he had committed any crimes. (Henriquez: H. 68.) Moreover, Detective Henriquez did not ask Harris about the Jacqueline Frezza homicide during this discussion of the robberies. (Henriquez: H. 68.)

Detective Henriquez asked Harris if he could collect forensic evidence from Harris' person such as "shedding skin," "fibers," "sweat" and "prints," to make sure Goodman did not try to claim that Harris had participated in the robberies. (Henriquez: H. 78-79.) Harris replied "no problem." (Henriquez: H. 79.) Detective Henriquez stuck a piece of tape on Harris' fingers and placed the tape on a card. (Henriquez: H. 79.) He rubbed a Q-tip across Harris' forehead and placed it in a cigar tube that looked like a test tube. (Henriquez: H. 79.) Detective Henriquez read aloud numbers that had no significance. (Henriquez: H. 79.) Detective Henriquez handed the materials to Detective Felder and told him to "get the chopper to take it to the lab." (Henriquez: H. 80.) Again, all of this was deception, and nothing was ever taken to a lab. (Henriquez: H. 80, 148.)

At one point, Harris asked to use the bathroom. (Henriquez: H. 81, 143.) Detective Henriquez pointed Harris in the direction of a bathroom across the squad room, but did not escort Harris to the bathroom. (Henriquez: H. 81.) Harris entered the bathroom labeled "men; no prisoners allowed." (Henriquez: H. 82, 151.) After Harris exited the bathroom, he "just walked back," returning to his previous seat in the interview room. (Henriquez: H. 82, 152.)

Later, Harris lay down on the bench in the interview room and slept for over an hour. (Henriquez: H. 82-84; Felder: H. 222-23, 284-85.) After Harris awoke, Detective Henriquez asked him if he wanted to eat or drink, assuring him that the government would pay for the food, but Harris declined. (Henriquez: H. 84.) Harris remained calm and "picture perfect" throughout the time he was in the interview room. (Henriquez: H. 85.)

Harris' Initial Incriminating Statement

At around 7:15 PM, Harris asked Detective Henriquez, "'I want to know what I'm doing here. What is it that I'm here for? I want to know. I want to know now.'" (Henriquez: H. 85, 87.) Detective Henriquez stood up, placed two Polaroid pictures of Jacqueline Frezza's body on the table in front of Harris, and said in a calm voice, "'This is why you're here, because you did this.'" (Henriquez: H. 86, 89. 149, 153.) Harris turned his head to the side and said, "'Take them away. I don't want to see them.'" (Henriquez: H. 88, 153-54.) Detective Henriquez picked up the pictures and left the interview room. (Henriquez: H. 89, 154.)

Detective Henriquez discussed strategy with Detective Felder. (Henriquez: H. 90. 154-56.) Detective Henriquez told Detective Felder, who had previously only spoken to Harris when he had confirmed Harris' pedigree information, to "go in to speak to Shaun Harris." (Henriquez: H. 90, 154-56; Felder: H. 283, 288-89.) At around 7:30 PM, Detective Felder entered the interview room with Detective Johnson, introduced himself, and told Harris that he did not have to speak with the detectives if he did not want to. (Felder: H. 226.) Harris nodded his head and said it was "okay." (Felder: H. 226.) Detective Felder sat down across the table from Harris and spoke to him in a "usual," "soft spoken" voice. (Felder: H. 227.) Detective Felder told Harris that "at this point we are comfortable that we have the right person and our thing now is to find out if it was done intentionally or if it was a mistake." (Felder: H. 227, 286-87, 289.) That was said as a statement, not a question. (Felder: H. 227.) Harris, with his voice "real low" and his "eyes . . . teary," replied, "it was a mistake." (Felder: H. 227, 250, 256, 289.) Detective Felder said, "[D]on't say anything else. We are going to step out and when I come back in, you can tell us what happened." (Felder: H. 227, 290.) Detectives Felder and Johnson left the room to confer with their supervisor. (Felder: H. 228.)

Harris' First Three Mirandized Statements

Detective Felder reentered the interview room at 7:35 PM and read Harris his Miranda warnings from a card. (Felder: H. 228-29, 290, 297.) When Detective Felder finished reading, "You have the right to remain silent and to refuse to answer questions," he asked Harris if he understood. (Felder: H. 230.) Harris said, "yeah," so Detective Felder asked for, "yes or no." (Felder: H. 230, 298.) Harris shook his head and remained quiet. (Felder: H. 230.) Detective Felder read the warning again, and this time Harris replied "yes." (Felder: H. 230, 298.) Detective Felder informed Harris of his other Miranda rights, including the right to counsel during questioning and the right to remain silent until having the opportunity to consult with an attorney, and Harris indicated that he understood all of his rights. (Felder: H. 230-31.) Harris signed the Miranda card and consented to answer questions. (Felder: H. 229, 231.) Harris remained calm during these warnings, appearing physically normal, and looking directly at Detective Felder. (Felder: H. 231.)

Detective Felder handed Harris a pad and pen and asked him to write down in his own words what had happened on April 15, 1999. (Felder: H. 232.) Detectives Felder and Johnson left the interview room while Harris wrote his statement. (Felder: H. 232, 295.) Harris wrote his name, date of birth, address and the time he started the statement, 8:02 PM, at the top of the page. (Felder: H. 234, 290-95.) Harris then wrote:

I Shawn Harris left my house that morning, I had an old bike. I needed some money. I didn't leave my house thinking about hurting anyone or anyone's family but I rode the bike from 125th Street and Broadway up to by 3170. [I approached] this lady, first I didn't want to use the gun, but she didn't understand me, so the gun was just to get her scared. When I pulled it out after a few seconds she swung . . . at the hand with the gun . . . I believe it is accident, the gun went off. I got scared and rode off down the hill to Amsterdam and 125 Street, rode to Morningside, left the bike in the park. I didn't in the name of God mean to hurt the lady. This is not normal for me. It was a mistake.

(Felder: H. 234-35.) Harris signed and dated the bottom of the page. (Felder: H. 235.) After returning to the room at about 8:25 PM and reading the statement, Detective Felder asked Harris to write another, this time being more specific about locations, since Harris had referred to "up the hill" and things like that, which would not be understandable to those not familiar with the neighborhood. (Felder: H. 236, 298, 300, 306.) Again, Detectives Felder and Johnson left the room while Harris wrote his next statement. (Felder: H. 236-37.)

Harris' second statement substantively mirrored his first and indicated that: "[I] asked her for money. She says something and then I pull out the .38 gun, and the hammer pulled back and a few seconds later she tried to swing, I guess, and the gun went off." (Felder: H. 238.) Harris signed and dated the statement at the bottom of the page and wrote the time he completed the statement, 8:35 PM. (Felder: H. 239, 302.)

At 8:55 PM, Detective Felder reentered the interview room and asked Harris to dictate what had happened in his own words. (Felder: H. 239-40, 303-04, 306.) Detective Felder sat across from Harris and wrote down what Harris told him. (Felder: H. 240.) Detective Felder read everything he wrote to Harris so that Harris could correct any mistakes. (Felder: H. 240-41.) The statement read:

I, Detective Terrance

Felder present at the 26th Squad Room, present with Shawn Harris, date of birth 10/31/80, to conduct interview regarding homicide. Witnessed by Detective William Johnson, Manhattan North Homicide Squad. The time started at 2055 hours, 6/3/99. Mr. Harris states that on day of incident he left his apartment, he went to first floor party room and removed a black mountain bike, then rode to 125th Street and Broadway from 430 west 125 Street. Then proceeded south on Broadway at 125th Street on sidewalk . . . east side of Broadway. Rode bike up hill at Broadway and 125th Street passing Twin Donuts, stationary store and train entrance and exit. Then approached female white who was walking a few feet further up on Broadway, pass stores and a little pass the entrance of 3170 the Broadway between 3150 Broadway. Mr. Harris states he rode up to the female who turned when she heard bike that was clicking as he pedaled toward her. He states he cuts her off. He cuts her off from continuing walking, said, give me your money. And when the victim grumbled and attempted to walk pass Mr. Harris he pulled out a .38 caliber revolver and said, give me your money. Then pulled back the hammer, cocking the gun, pointing it at her. Mr. Harris states victim tried to knock the gun away from him which caused the gun to discharge firing one round which struck victim. Mr. Harris states he said, oh, shit, paused for a second, then rode bike from front of 3150 Broadway making a left on to LaSalle Street, continuing down hill to Amsterdam, making a left on to Amsterdam, continuing to 125th Street, where Mr. Harris makes a right turn, riding-- biking from 125th Street to Amsterdam to Morningside Drive, making a right turn at 125th Street and then travel one block to 124th Street and Morningside Park, entering the park where he left the bike besides a park bench. Mr. Harris states he left park and went home, took off his jacket and went into the bathroom and threw up because he felt nauseous after realizing what he had done. I have asked Mr. Harris what did he do with the .38 caliber revolver? He said he used it in the shooting. He said Pat came to his block about two days later looking for Mr. Harris to get the gun that he had lent him on 4/14/99, the day before he shot the lady. I asked Mr. Harris did he tell any one what happened? He said, no. This isn't something I would tell anybody because it was an accident. Mr. Harris states he needed money to pay off a debt of $50 that he owed to Travis from uptown because he lost approximately $60 worth of marijuana that he was holding, leaving it on a basketball court inside his hat. Mr. Harris further states that he was wishing the whole thing didn't happen, didn't mean to hurt that lady at all. He felt as if he showed her the gun she would give up the money and not resist. (Felder: H. 243-45.) Harris, Detective Felder and Detective Johnson signed the statement and wrote the time it was completed, 9:30 PM. (Felder: H. 245, 304.) Following the completion of this third statement, Detective Felder again offered Harris some food, and Harris requested (and received) Chinese food. (Felder: H. 246.)

Harris' Fourth, Fifth and Sixth Mirandized Statements

Detective Henriquez, who last spoke with Harris at 7:15 PM, next spoke with Harris at 10:30 PM. (Henriquez: H. 90-91, 156.) Detective Henriquez told Harris that he was aware that Harris had given previous statements to Detective Felder that he had killed Frezza. (Henriquez: H. 91.) Detective Henriquez asked Harris whether he was telling the truth and whether he had given the statements voluntarily. (Henriquez: H. 91.) Harris told Detective Henriquez that "he never wanted to kill her" and that "she swung something, like she swung . . . her arm at him; and she didn't want to give him the money; and the gun had gone off; and she fell to the ground; and he . . . didn't take anything from her." (Henriquez: H. 91.) Harris told Detective Henriquez that he had had the gun in his coat pocket, and that after the shooting, he had thrown the coat away. (Henriquez: H. 91-92, 94.) Harris told Detective Henriquez that, "he never used a gun in a robbery before." (Henriquez: H. 92.) Harris said that after the gun went off that he "got scared and he took off" on his bicycle without taking anything from the victim. (Henriquez: H. 93.) Harris was very calm and polite, seemed to be in a "better mood," relaxed and "a little bit more friendly . . . more casual with us." (Henriquez: H. 95.) This interaction took no more than five minutes. (Henriquez: H. 95.) Detective Henriquez asked Harris again if he wanted anything to eat, and Harris ordered Chinese food. (Henriquez: H. 95.)

At 11:30 PM, Detective Felder entered the interview room and had a discussion with Harris about the gun he had used in the homicide. (Felder: H. 247, 304-05.) Harris had indicated that he had used a .38 caliber revolver in his second and third written statements. (Felder: H. 247.) A shell casing found at the scene and the ballistics report indicated that a .25 caliber gun was used to kill Frezza. (Felder: H. 247.) Harris indicated that a .38 caliber was the only gun that he thought he could "get [his] hands on quick," since "Pat had sold the other gun, the .25" caliber. (Felder: H. 247, 248.) Detective Felder told Harris to write this, his fifth statement. (Felder: H. 248-50.) Harris did so, and explained that he said it was a .38 because that was the only gun he could give the detectives, since Pat had sold the .25. (Felder: H. 250.)

At midnight, Detective Felder conducted a lineup with Harris and five "fillers." (Felder: H. 250-51, 307-08.) At 12:15 AM, Melvin Wallace viewed the lineup and identified Harris as the "male on a bicycle" Wallace had witnessed "pull out a gun and shoot" Jacqueline Frezza. (Felder: H. 256, 259-60.)

On June 4, 1999, at around 12:30 AM, Assistant District Attorney Tom Shields conducted a videotaped interview with Harris. (Felder: H. 260.) Harris was again read his Miranda rights. (Felder: H. 260-62.) Again, Harris acknowledged that he understood his rights and waived them, agreeing to answer questions. (Felder: H. 260-62.) Harris reiterated the details of the statements he had given earlier that night. (Felder: H. 260-62; see Dkt. No. 8: Ans. App. Ex. A: 12/1/00 J. Wittner Decision at 7, describing videotaped confession; Ans. App. Ex. C: State 1st Dep't Br. at 17-18, 42-44, describing videotaped confession.)

The Defense Evidence at the Suppression Hearing

The defense called Alvin Hodge, Harris' older brother, as a witness at the suppression hearing. (Hodge: H. 324-25.) On June 3, 1999, at around 2:00 PM, Hodge was walking his dog in front of his apartment on 125th Street when a neighbor told Hodge that Harris had been "picked up." (Hodge: H. 325-27, 337-38.) Around 2:30 PM, Hodge went to the 26th Precinct and spoke to a "PA," someone Hodge described as working "in the precinct taking affidavits and reports[,] . . . [t]he first person you see before you see an officer." (Hodge: H. 327-28, 338-39.) Hodge asked whether Harris was at the 26th Precinct, and was told he was not. (Hodge: H. 328.) Hodge left to go to the 28th Precinct, but "ran into one of the guys that was picked up with Shaun," who told Hodge that "[t]hey still have [Harris] upstairs on the second floor of the 26." (Hodge: H. 328-29.)

Around 3:00 PM, Hodge returned to the 26th Precinct and spoke to the same PA, who inquired and told Hodge that someone would be down in a few minutes to talk to him. (Hodge: H. 329, 339.) Ten minutes later a detective came down to speak with Hodge and told him Harris was not being charged and was "just being questioned." (Hodge: H. 329-31.) When Hodge asked if he could go up and speak to Harris, the detective told him he could not. (Hodge: H. 331.) Hodge asked if Harris could be brought down so that he could speak with him, and again Hodge was told no. (Hodge: H. 331.) Hodge asked, "if he is not being charged, can he leave with me?" and again the detective told him no. (Hodge: H. 331.) Hodge left the precinct and returned home. (Hodge: H. 331-32.)

Hodge called his mother, Helen Hodge, and told her about Harris. (Hodge: H. 332, 340.) Helen Hodge hurried home, called the precinct at approximately 6:00 PM, and asked to speak with Harris but was not allowed to. (Hodge: H. 332-33, 340.) At approximately 9:30 PM, Helen Hodge called the precinct a second time and asked to speak to the detective, but was told that he had gone home for the night. (Hodge: H. 334, 341.) When Alvin Hodge called the precinct in the morning, he learned that Harris had been arrested. (Hodge: H. 334.)

The Suppression Hearing Decision

On December 1, 2000, Justice Wittner issued a written decision denying Harris' motion to suppress his initial and six post-warning statements. (Dkt. No. 8: Ans. App. Ex. A: 12/1/00 J. Wittner Decision.) Justice Wittner held that Harris' initial, un-Mirandized statement (that "it was a mistake") was made voluntarily and "was not the product of custodial interrogation as [Harris] was neither in 'custody' nor 'interrogated.'" (Id. at 8.) She held that "all [of Harris'] subsequent statements were knowingly and voluntarily made after [Harris] was properly advised of his Miranda rights." (Id.) In the alternative, Justice Wittner found that even if Harris' "first statement was the product of custodial interrogation, it in no way tainted his later, voluntarily made, oral and written statements." (Id.)

Justice Wittner found that Harris was not in custody when he voluntarily made his initial statement. (Id. at 10-11.) Justice Wittner reasoned that because Harris voluntarily accompanied Detective Henriquez to the police station, "was not told he was under arrest or placed in a holding cell," and remained at the precinct for five hours, a time period "well within the limits for non-custodial station house encounters," a reasonable innocent person would conclude that he was not in custody at the time Harris made his initial statement. (Id.)

Further, Justice Wittner found that Harris' initial statement was not the result of interrogation. (Id. at 11.) She reasoned that "[a]t this juncture, Detective Felder had not asked [Harris] any specific questions about the homicide," "but rather informed him of the evidence they had." (Id.) As soon as Harris made his "spontaneous" statement that "'it was a mistake,'" Detective Felder "immediately administered the Miranda rights" to Harris. (Id.) Therefore, Harris' initial "statement 'it was a mistake' was freely and voluntarily made, not the product of custodial interrogation." (Id.)

Moreover, Justice Wittner found that Harris made all of his "subsequent oral and written statements and the videotaped statement," after being advised of and waiving his Miranda rights. (Id.) "Nothing in the record suggests that [Harris'] statements[, following his initial statement, 'it was a mistake,'] were the product of continuous custodial interrogation." (Id. at 12.) The "[d]etectives did not question [Harris] about the Frezza homicide until Miranda warnings were administered." (Id.) "There [was] no evidence that [Harris] was psychologically or physically coerced in any way." (Id. at 11.) Harris "was given food and drink and allowed to use the bathroom." (Id.) Harris appeared "attentive" when he "again waived his Miranda rights" in the videotaped confession. (Id. at 12.) "Nor does the record support the contention that [Harris'] simple utterance, 'it was a mistake,' committed him to the subsequent detailed confessions that he later gave to the detectives and the assistant district attorney." (Id.) Therefore, "[a]ssuming arguendo that the first statement was the product of custodial interrogation, it in no way tainted his later, voluntarily made, oral and written statements." (Id. at 8.)

The Prosecution's Case at Trial

On February 28, 2001, the prosecution began presenting its case to the jury. (Trial Transcript ["Tr."] 29.)*fn1 The prosecution's chief witnesses were eyewitness Melvin Wallace, and Detectives Victor Henriquez and Terrance Felder, who essentially repeated their testimony given during the earlier suppression hearing described above. (Henriquez: Tr. 258-399; Felder: Tr. 399-515.)*fn2

Wallace testified that on April 15, 1999, at about 9:00 AM he looked out his apartment window facing Broadway and observed a struggle between a man and a woman. (Wallace: Tr. 91.) Wallace had a clear view of the woman, who appeared to be trying to get away as she struggled with a man straddling a bicycle. (Wallace: Tr. 92-93.) The man struck the woman in her chest, pushing her back against the iron rail of a fence bordering the sidewalk. (Wallace: Tr. 95-96.) The man put his right hand in his right pocket, raised a gun in his right hand and shot the woman. (Wallace: Tr. 95, 98-99, 101.) Wallace watched the man flee on his bicycle out of view under the canopy of Wallace's building. (Wallace: Tr. 97.) Wallace ran to his other window and watched the man come out from under the canopy and ride down LaSalle Street on the sidewalk toward Amsterdam Avenue. (Wallace: Tr. 97, 101.) Wallace had a view of the man's face during this, and his view improved as the man rode away from the victim and toward Wallace's window. (Wallace: Tr. 101, 105.) Wallace could see all of the features of the man's face and testified that while it was hard to describe a face, "seeing the man anywhere I would know the man." (Wallace: Tr. 103.) Wallace called 911. (Wallace: Tr. 109-10.) On June 3, 1999, at around midnight, Wallace went to the 26th Precinct to view a lineup, at which he identified Harris as the man who shot and killed Jacqueline Frezza. (Wallace: Tr. 117-19.) Wallace identified Harris at trial as the shooter. (Wallace: Tr. 119-20.)

The Prosecution's Motion to Exclude Defense Witness Avlin Hodge at Trial

On March 8, 2001, the prosecution moved to preclude the testimony of defense witness Alvin Hodge, Harris' brother, as irrelevant. (Tr. 540.) The defense planned to have Hodge repeat his testimony from the suppression hearing, which the defense argued was relevant to establish Harris' presence at the 26th Precinct, to shed light on the nature of the police questioning, and to show that Harris was in custody. (Tr. 541.) The defense also claimed it went to the police's credibility. (Tr. 544-46.)

The prosecution argued that Hodge's testimony was irrelevant to the issues of custody and voluntariness, describing the issue as "whether or not an innocent person found under similar circumstances as the defendant would be free to leave[. W]hether or not someone shows up at the Precinct is irrelevant. Whether or not a family member calls is irrelevant. What the police officers know is irrelevant in terms of deciding that standard." (Tr. 546.)

Justice Wittner agreed with the prosecution and excluded Hodge's testimony, finding that Hodge's testimony about his efforts on June 3, 1999 to locate and speak to Harris at the 26th Precinct was irrelevant to the issue of whether Harris' statements were voluntary. (Tr. 540-41, 547.)

"It is the defendant's state of mind that is dispositive on the voluntariness." (Tr. 547.) Hodge's testimony "has no legal import. There is no inference the jury could draw from that set of facts" about the voluntariness of Harris' confessions. (Tr. 548.) "There is no law at [Harris'] age [18, that the police] have to contact a parent." (Tr. 548.) Justice Wittner concluded that she "will give the instruction that tells [the jury that] if they believe he was in custody at the time he made the statement [that] it was a mistake, they should not consider that statement. All the other statements were post Miranda." (Tr. 549.) The defense noted an exception to the judge's ruling. (Tr. 551.) The Defense Case at Trial

Shaun Harris testified as the main witness in his own defense. (Harris: Tr. 632-33.)*fn3

Harris denied shooting Jacqueline Frezza, and testified that he was not the man pictured in the videotapes shown riding from the scene. (Harris: Tr. 636, 676-79, 699, 730, 794.) Harris admitted that he had confessed to the homicide in his four written statements and the videotaped statement, but testified that none of those statements was true. (Harris: Tr. 636, 662, 668-69, 671-79, 699.) Harris testified that he felt the police left him no choice but to confess to the murder, so that he could go home. (Harris: Tr. 655, 676-77, 699-700, 730, 794.)

Harris' version of the events of June 3, 1999 greatly differed from Detective Henriquez's and Detective Felder's testimony. (Harris: Tr. 637-795.) Harris testified that when the police stopped him and his friends, they were told to get up against the wall, and he and Keith Goodman were told they had to go to the precinct. (Harris: Tr. 637, 681-82.) According to Harris, after he had been at the precinct for only about forty minutes, Detective Henriquez showed him two pictures. (Harris: Tr. 641-42.) Harris testified that he told Detective Henriquez that he did not know who was in the pictures, and the detective said Harris was there because he had killed her, which Harris had denied. (Harris: Tr. 643.) After Detective Henriquez placed the photographs of Jacqueline Frezza's body on the table, Detectives Henriquez and Felder alternately interrogated Harris for several hours about the homicide, accusing Harris of the shooting and insisting that the police had substantial evidence to prove his guilt. (Harris: Tr. 643-48, 652-53.) The detectives spoke about the death penalty, although never directly saying that Harris would be put to death. (Harris: Tr. 652-53, 693-94.) Harris testified that he asked to leave, asked to make a phone call and asked to speak to his mother, but was told that he first must cooperate. (Harris: Tr. 650-54.) According to Harris, he was not allowed to drink water or use the bathroom until after he had made his written statements. (Harris: Tr. 654-55, 673, 693). Harris testified that he did not get a chance to sleep at the precinct until after he made his written statements (and before the videotaped statement). (Harris: Tr. 675-76.)

After six hours, Harris believed he had no choice but to cooperate and told Detective Henriquez that he had committed the homicide and that it had been a mistake. (Harris: Tr. 652-56.) Harris used what he had learned from fliers and his neighbors to write his statements admitting to the homicide. (Harris: Tr. 661-68, 702-12.) Harris did not know what kind of gun was used to kill Frezza, so he wrote that he used a .38 caliber gun; later Detective Felder told Harris that he had written the wrong caliber gun and had Harris rewrite his statement to indicate that he had used a .25 caliber handgun. (Harris: Tr. 667-68, 722, 762-64, 766.) As Harris' statements grew more detailed, Detective Felder made suggestions and Harris wrote those details in his statements, even though the statements were false. (Harris: Tr. 671-73, 717-26, 761, 776-77, 784-85.) When Harris made his videotaped statement to the Assistant District Attorney, Harris reiterated his previous statements, detailing the crime as he imagined what took place. (Harris: Tr. 679-80, 699, 707, 767, 794.) Verdict and Sentence

On March 15, 2001, the jury convicted Harris of first degree murder and second and third degree criminal possession of a weapon. (Tr. 1007-08.)

On April 23, 2001, Justice Wittner sentenced Harris to twenty-five years to life imprisonment on the first degree murder count and fifteen years and seven years on the second and third degree criminal possession of a weapon counts, all to run concurrently. (Dkt. No. 10: 4/23/01 Sentencing Transcript 23-24.)

Harris' Direct Appeal

Represented by the Center for Appellate Litigation, Harris' appeal to the First Department raised three issues: (1) his initial four-word un-Mirandized statement and his subsequent six Mirandized statements to the police and Assistant District Attorney were the coerced result of a custodial interrogation and should have been suppressed (Dkt. No. 8: Ans. App. Ex. B: Harris 1st Dep't Br. at 22-32), (2) the trial court denied him the right to present a defense at trial when it precluded the testimony of Harris' brother as irrelevant (id. at 33-38), and (3) his sentence of twenty-five years to life was excessive (id. at 39-41).

On May 5, 2004, the First Department unanimously affirmed Harris' conviction, holding:

Even if we were to find that [Harris] was in custody and under interrogation when he made his initial incriminating remark, which preceded Miranda warnings, we would find that the record supports the court's finding of attenuation with respect to his subsequent, post-Miranda statements. Prior to the post-warnings statement to a detective, there was such a definite, pronounced break in the interrogation that [Harris] may be said to have returned, in effect, to the status of one who is not under the influence of questioning. The pre-warnings incriminating remark was followed by a sufficient lapse of time, during much of which he was left asleep and undisturbed, and a change of interrogators. There is no evidence that the post-warnings statement to a detective was the inevitable result of the pre-warnings statement, that the police used the pre-warnings statement to obtain the post-warnings statement, or that the police deliberately withheld warnings in order to obtain a preliminary statement that would lead to a later statement. Moreover, the statement which defendant made much later to an assistant district attorney was even further attenuated. . . .

At trial, the court properly exercised its discretion in excluding evidence that was irrelevant to the voluntariness of [Harris'] confession or any other issue to be considered by the jury. To the extent that [Harris] is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no impairment of [Harris'] right to present a defense.

We perceive no basis for reducing [Harris'] sentence.

People v. Harris, 7 A.D.3d 446, 446-47, 776 N.Y.S.2d 801, 801-02 (1st Dep't 2004) (citations omitted).

On August 30, 2004, the New York Court of Appeals denied leave to appeal. People v. Harris, 3 N.Y.3d 675, 784 N.Y.S.2d 14 (2004).

Harris' Federal Habeas Corpus Petition

Harris' habeas petition raises the same three issues that he raised on appeal before the First Department: (1) his initial four-word un-Mirandized statement and his subsequent six Mirandized statements to the police and an Assistant District Attorney, in which he confessed to killing Jacqueline Frezza, were coerced and should have been suppressed (Dkt. No. 1: Pet. ¶ 13(1); Dkt. No. 18: Harris Br. at 16-20); (2) the trial court denied him the right to present a defense at trial when it precluded the testimony of Harris' brother as irrelevant (Pet. ¶ 13(2); Harris Br. at 21-28); and (3) his sentence of twenty-five years to life for first degree murder was excessive (Pet. ¶ 13(3); Harris Br. at 29-30.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD *fn4

Before the Court can determine whether Harris is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective

Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).*fn5

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519.*fn6 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.*fn7 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.*fn8

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.*fn9 However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn10 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.*fn11 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn12 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 541 U.S. at 663, 124 S. Ct. at 2149.*fn13

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn14

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Lynn v. Bliden, 2006 WL 805527 at *7; Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 543 U.S. 872, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition -- the word 'denied' -- triggered AEDPA deference.").*fn15

"By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322

F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn16 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Lynn v. Bliden, 2006 WL 805527 at *7; Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)); accord, e.g., Lynn v. Bliden, 2006 WL 805527 at *7.

II. HARRIS' MIRANDA CLAIM LACKS MERIT

Harris' first habeas claim asserts that his "statements to the Police and an Assistant District Attorney at the Precinct station house should have been suppressed, because they were the direct result of an intensive un-Mirandized custodial interrogation." (Dkt. No. 1: Pet. ¶ 13(1); see Dkt. No. 18: Harris Br. at 16-20; see also Dkt. No. 8: Ans. Appx. Ex. B: Harris 1st Dep't Br. at 22-32.) Justice Wittner denied Harris' pretrial motion to suppress his statements. (Dkt. No. 8: Ans. App. Ex. A: 12/1/00 J. Wittner Decision; see pages 18-19 above.) Justice Wittner found that Harris' initial, un-Mirandized statement (that "it was a mistake") was made voluntarily and "was not the product of custodial interrogation as [Harris] was neither in 'custody' nor 'interrogated.'" (12/1/00 J. Wittner Decision at 8.) She held that "all [of Harris'] subsequent statements were knowingly and voluntarily made after [Harris] was properly advised of his Miranda rights." (Id.) In the alternative, Justice Wittner found that even if Harris' "first statement was the product of custodial interrogation, it in no way tainted his later, voluntarily made, oral and written statements." (Id.)

The First Department rejected Harris' Miranda claim, stating: "Even if we were to find that [Harris] was in custody and under interrogation when he made his initial incriminating remark, which preceded Miranda warnings, we would find that the record supports the court's finding of attenuation with respect to his subsequent, post-Miranda statements." People v. Harris, 7 A.D.3d 446, 446, 776 N.Y.S.2d 801, 802 (1st Dep't), appeal denied, 3 N.Y.3d 675, 784 N.Y.S. 2d 14 (2004).

A. Miranda v. Arizona: Background*fn17

Voluntary statements remain a proper element in law enforcement. Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966).

Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment.

Id. (fn. omitted); see also, e.g., United States v. Washington, 431 U.S. 181, 187, 97 S. Ct. 1814, 1818 (1977). But when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized, and the now-familiar Miranda warnings must be given. Miranda v. Arizona, 384 U.S. at 478, 86 S. Ct. at 1630.

Prior to Miranda, the Supreme Court utilized "due process jurisprudence . . . to exclude confessions that were obtained involuntarily." Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000). Because of the "coercion inherent in custodial interrogation," the Supreme Court in its well-known decision in Miranda v. Arizona "laid down 'concrete constitutional guidelines for law enforcement agencies and courts to follow.'" Dickerson v. United States, 530 U.S. at 435, 120 S. Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 442, 86 S. Ct. at 1611). As the Supreme Court summarizedin Dickerson in reaffirming Miranda in 2000:

Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

Dickerson v. United States, 530 U.S. at 435, 120 S. Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 479, 86 S. Ct. at 1630). The Miranda warnings are familiar to everyone from watching television or movies: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. at 443, 120 S. Ct. at 2336.

It goes without saying that statements obtained in violation of Miranda generally must be suppressed. See, e.g., Missouri v. Seibert, 542 U.S. 600, 608, 124 S. Ct. 2601, 2608 (2004) ("Miranda conditioned the admissability at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained."); Dickerson v. United States, 530 U.S. at 443-44, 120 S. Ct. at 2336 ("our subsequent cases have . . . reaffirm[ed] the [Miranda] decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief"); Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct. 1285, 1297 (1985) ("When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief.").*fn18

1. The "In Custody" Requirement

"A suspect is entitled to Miranda warnings only if he or she is interrogated while 'in custody.'" Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); accord, e.g., Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct 1526, 1528 (1994) ("An officer's obligation to administer Miranda warnings attaches . . . 'only where there has been such a restriction on a person's freedom as to render him in custody.'") (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)).*fn19

"A court evaluating whether a person is in custody for Miranda purposes must consider 'the circumstances surrounding the interrogation; and . . . [whether] given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'" United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995)); accord, e.g., Parsad v. Greiner, 337 F.3d at 181-82.*fn20

The "in custody" test utilizes an objective standard:

The test for custody is an objective one: "whether a reasonable person in defendant's position would have understood himself to be subjected to the restraints comparable to those associated with a formal arrest."

[I]t makes sense for a court to begin any custody analysis by asking whether a reasonable person would have thought he was free to leave the police encounter at issue. If the answer is yes, the Miranda inquiry is at an end; the challenged interrogation did not require advice of rights. On the other hand, if a reasonable person would not have thought himself free to leave, additional analysis is required because . . . not every seizure constitutes custody for the purposes of Miranda. In such cases, a court must ask whether, in addition to not feeling free to leave, a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest. Only if the answer to this second question is yes was the person "'in custody' for practical purposes," and "entitled to the full panoply of protections prescribed by Miranda."

United States v. Newton, 369 F.3d at 671, 672 (citations omitted); accord, e.g., Tankleff v. Senkowski, 135 F.3d at 243-44; see e.g., Hicks v. City of Buffalo, 124 Fed. Appx. 20, 24 (2d Cir. 2004). Determining whether the subject was in custody therefore "'depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" Vega v. Artuz, 2002 WL 252764 at *9 (quoting Stansbury v. California, 511 U.S. at 323, 114 S. Ct. at 1529); see also cases cited at pages 92-94 below. Factors relevant to the custody inquiry include: "whether a suspect is or is not told that [he or] she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation." Tankleff v. Senkowski, 135 F.3d at 244 (citations omitted).*fn21 The Second Circuit has held that "[t]o be considered 'in custody' a defendant must have 'understood himself to be subject to restraints comparable to those associated with a formal arrest.'" United States v. Remache, No. 99-1113, 201 F.3d 433 (table), 1999 WL 1212535 at *1 (2d Cir. Dec. 15, 1999) (quoting United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992)), cert. denied, 529 U.S. 1080, 120 S. Ct. 1702 (2000). "An accused is in custody when, even 'in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave.'" United States v. Kirsh, 54 F.3d at 1067 (quoting Campaneria v. Reid, 891 F.2d 1014, 1021 n.1 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S. Ct. 1149 (1991)); accord, e.g., United States v. Badmus, 325 F.3d at 138; see also, e.g., United States v. Mitchell, 966 F.2d at 98 (Custody inquiry "focuses upon the presence or absence of affirmative indications that the defendant was not free to leave.").

The Supreme Court has "made it clear that Miranda warnings are not required simply because 'the questioning took place in a "coercive environment,"'" such as the police station. Cruz v. Miller, 255 F.3d 77, 81-82 (2d Cir. 2001) (quoting Oregon v. Mathiason, 429 U.S. at 495, 97 S. Ct. at 714) (Miranda warnings not required "simply because the questioning takes place in the station house;" suspect who came to police station voluntarily and questioned in a closed room not "in custody"); see, e.g., United States v. Al-Marri, 230 F. Supp. 2d 535, 543 (S.D.N.Y. 2002) (suspect interviewed at FBI office in unlocked interview room was not in custody); United States v. Rogers, 99 Cr. 710, 2000 WL 101235 at *12 (S.D.N.Y. Jan. 27, 2000) ("In the context of determining whether an individual is in custody under the Fifth Amendment, the courts have long recognized that the setting of a police station or a police interrogation room, without more, is not so coercive as to preclude a reasonable person from feeling free to leave.") (citing Oregon v. Mathiason), aff'd, 225 F.3d 647 (2d Cir. 2000); see also cases cited at page 55 below.

When the police have an individual in custody, "giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver." Missouri v. Seibert, 542 U.S. 600, 608-09, 124 S. Ct. 2601, 2608 (2004).

2. The Treatment of Subsequent Mirandized Statements After A Prior Unwarned Statement: The Elstad and Seibert Decisions

The Supreme Court has made clear that even if a defendant's initial statement is considered "incriminating and obtained in violation of the Miranda rule, that does not render his later, fully warned confessions inadmissible." Nova v. Bartlett, 211 F.3d 705, 708 (2d Cir. 2000) (citing Oregon v. Elstad, 470 U.S. 298, 311-14, 105 S. Ct. 1285, 1294-96 (1985)). "[T]he Supreme Court expressly rejected the 'cat out of the bag' theory under which, once an incriminating statement has been made, no subsequent confession can be truly voluntary." Nova v. Bartlett, 211 F.3d at 708 (citing Oregon v. Elstad, 470 U.S. at 318, 105 S. Ct. at 1297-98).

In Oregon v. Elstad, the Supreme Court held that where a defendant makes a pre-Mirandized statement and then a post-Miranda statement, the latter is admissible if "knowingly and voluntarily made":

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied . . . by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

Oregon v. Elstad, 470 U.S. at 309, 314, 318, 105 S. Ct. at 1293, 1296, 1297-98 (emphasis added & fn. omitted); see, e.g., Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir.) ("'absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.'") (quoting Oregon v. Elstad), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Casellas v. McGinnis, No. 99-2127, 199 F.3d 1321 (table), 1999 WL 980948 at *3 (2d Cir. 1999) ("[I]t is not enough to say that the first confession was obtained in violation of Miranda[,] [f]or the later confessions would still be admissible under Elstad unless the circumstances surrounding this first statement entailed coercion so great that there could not have been a voluntary waiver of rights as to the subsequent confessions."), cert. denied, 529 U.S. 1091, 120 S. Ct. 1729 (2000).*fn22

In its June 28, 2004 decision in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004), the Supreme Court re-examined Elstad in a case where the police intentionally conducted an un-Mirandized custodial interrogation in order to obtain a full confession, and then gave Miranda warnings to secure a Mirandized reiteration of the earlier confession. The Supreme Court held that this "question-first" interrogation technique, by which police intentionally elicited a complete and detailed pre-warning confession, then subsequently administered Miranda warnings and led the suspect through the identical confession, overcame the suspect's waiver of his rights and was a violation of the suspect's Fifth Amendment rights. Id. at 604, 611, 124 S. Ct. at 2605, 2610

According to the plurality opinion of Justices Souter, joined by Justices Stevens, Ginsburg and Breyer, "[t]he threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires." Id. at 611-12, 124 S. Ct. at 2610. "If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning." Id. at 612 n.4, 124 S. Ct. at 2610 n.4. "[I]t is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content." Id. at 613, 124 S. Ct. at 2610.

The plurality opinion distinguished Elstad: "The contrast between Elstad and this case [i.e., Seibert] reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615, 124 S. Ct. at 2612.*fn23

Justice Kennedy concurred with the plurality's judgment, but differed with its approach. Id. at 618, 124 S. Ct. at 2614 (Kennedy, J., concurring). Justice Kennedy stated:.

I would apply a narrower test [than the multifactor plurality test] applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, post warning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made."

Id. at 622, 124 S. Ct. at 2616 (Kennedy, J., concurring).

No Second Circuit or Southern District decisions have discussed Seibert substantively, but other district court decisions in the Circuit appear to limit Seibert to cases where the police adopted a deliberate two-tiered interrogation strategy, and otherwise continue to utilize the Elstad test. See, e.g., United States v. McFarland, 05 CR 301, --- F. Supp. 2d ---, 2006 WL 787785 at *18 (N.D.N.Y. Mar. 23, 2006) ("'Seibert does not alter the fundamental Elstad inquiry: namely, whether under the totality of the circumstances, an accused's subsequent statements were made following a knowing and voluntary waiver of rights.'" "Clearly, the police attempted to use McFarland's first unwarned statement to induce the second. . . . [H]owever, this is not an 'ask first, Mirandize second' case. Almost two years elapsed between the first round of questioning and the second, and the police personnel were different."); Duncan v. Fischer, 410 F. Supp. 2d 101, 110 (E.D.N.Y. 2006) (where there was "no indication that the police in this case adopted any strategy to avoid Miranda," Seibert was not applicable); United States v. Miller, 382 F. Supp. 2d 350, 375-76 (N.D.N.Y. 2005) ("Seibert limits the application of Elstad, but not the test." A "spontaneous and not prompted" statement that "bore no rational relationship to the impermissible question that preceded it" did not require exclusion of subsequent Mirandized statements that were not "part of a coordinated and continuous interrogation designed to thwart Miranda" and "were not tainted by the inadmissible" prior statement.); United States v. Cohen, 372 F. Supp. 2d 340, 354-55 (E.D.N.Y. 2005) ("The aims of the analyses [of the plurality opinion and Justice Kennedy's concurrence] are similar, but neither a logical subset of the other." "Only a recognition that deliberate circumvention of Miranda is unconstitutional, but for different reasons and after separate analyses, binds the plurality and Justice Kennedy's concurrence." "A fair characterization [of the Seibert holding] is that Elstad does not control all situations of question-first interrogations; that sometimes warned confessions related to previous unwarned confessions must be suppressed."); Vachet v. West, No. 04-CV-3515, 2005 WL 740640 at *8 (E.D.N.Y. Mar. 24, 2005) (emphasizing that "this is not a case where the police procured a detailed confession before giving Miranda warnings, only to have [defendant] repeat those statements after the warnings were given").

B. Harris' Initial Statement ("It Was A Mistake") Was Not The Product Of Custodial Interrogation

1. The State Courts' Determination of the Facts Surrounding Harris' Statements to the Police Is Entitled to a Presumption of Correctness *fn24

Pursuant to the AEDPA, "'a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."' Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(e)(1)).*fn25 As the Second Circuit has stated, a federal habeas court should review the state court's findings only to determine whether they were unreasonable in light of the evidence presented, 28 U.S.C. § 2254(d)(2), or whether the presumption that they are correct was rebutted by "clear and convincing" evidence, 28 U.S.C. § 2254(e)(1). . . . In accordance with 28 U.S.C. § 2254, as modified by AEDPA, our review of the state court determinations of facts is limited to an inquiry into whether the conclusion of the state trial court was unreasonable based on the evidence presented and whether petitioner has presented evidence in the District Court that clearly and convincingly rebuts the presumption that the state court's factual findings are correct.

Channer v. Brooks, 320 F.3d 188, 195-96 (2d Cir. 2003); accord, e.g., Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 1041 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)."); Bartley v. Senkowski, 144 Fed. Appx. 151, 154 (2d Cir.) (New York court's findings of fact are presumed to be correct and petitioner has the burden of rebutting this presumption by clear and convincing evidence), cert. denied, 126 S. Ct. 835 (2005); Rosa v. McCray, 396 F.3d 210, 220 (2d Cir.) (state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of rebutting the presumption of correctness by clear and convincing evidence), cert. denied, 126 S. Ct. 215 (2005); Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.) (determination of a factual issue made by state court is presumed to be correct, and petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) ("Under AEDPA, a state court's factual findings enjoy a presumption of correctness and may not be disturbed except upon a showing of 'clear and convincing evidence.'"); Davis v. Kelly, 316 F.3d 125, 127 (2d Cir.) ("Under the AEDPA, we must accept [the state court's] finding of fact unless it is controverted by 'clear and convincing evidence.'"), cert. denied, 540 U.S. 958, 124 S. Ct. 414 (2003); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002) ("In reviewing habeas petitions, we must presume the state court's findings of fact are correct, unless the petitioner meets 'the burden of rebutting th[is] presumption of correctness by clear and convincing evidence.") (brackets in original); Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) ("We presume that the state court's factual findings are correct unless they are rebutted by clear and convincing evidence."); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) ("[T]he AEDPA instructs that state court findings of fact 'shall be presumed correct,' rebuttable only upon a showing of 'clear and convincing evidence.'") *fn26

Whether Harris was "coerced" into giving his confessions by police is a matter of historical fact subject to the presumption of correctness under 28 U.S.C. § 2254(e)(1). See, e.g., Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995) (The inquiry into the "circumstances surrounding the interrogation . . . is distinctly factual."); Alexandre v. Senkowski, 126 Fed. Appx. 7, 12 (2d Cir. 2005) (state determinations of subsidiary factual questions underlying the question of voluntariness are subject to AEDPA presumption of correctness); Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998) (The inquiry into the circumstances surrounding the interrogation is "purely factual, and the state court's answer to it is afforded a presumption of correctness . . ."); Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *22 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) (state court factual determination that petitioner was not in custody should be presumed correct); Tibbs v. Greiner, 01 Civ. 4319, 2003 WL 1878075 at *9 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ("Whether [petitioner] was questioned before being advised of his Miranda rights by [police] is a matter of historical fact subject to the presumption of correctness under 28 U.S.C. §2254(e)(1)."); Holland v. Donnelly, 216 F. Supp. 2d 227, 231 (S.D.N.Y. 2002) ("[A]ccount of the events leading up to [petitioner's] confession" were "findings of historical fact [that] must be 'presumed to be correct' for purposes of [habeas] petition. . . .") (citing 28 U.S.C. § 2254(e)(1) & Boyette v. Lefevre, 246 F.3d at 88), aff'd, 324 F.3d 99 (2d Cir.), cert. denied, 540 U.S. 834, 124 S. Ct. 86 (2003); Dallio v. Spitzer, 170 F. Supp. 2d 327, 338 (E.D.N.Y. 2001) ("[A] state court's determinations of 'subsidiary questions such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings' are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. 2254(d).") (citing Miller v. Fenton, 474 U.S. 104, 117, 106 S. Ct. 445, 448 (1985)), aff'd, 343 F.3d 553 (2d Cir. 2003), cert. denied, 541 U.S. 961, 124 S. Ct. 1713 (2004); Ortiz v. Artuz, 113 F. Supp. 2d 327, 338 (E.D.N.Y. 2000) ("While the voluntariness of a habeas petitioner's confession is a question of law. . . , subsidiary factual questions relevant to this determination are entitled to the presumption of correctness under 28 U.S.C. § 2254(e)(1). Because subsidiary questions (such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and the defendant's familiarity with the Miranda warnings) often require the resolution of conflicting testimony of police and defendant, the law is clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record. It is a petitioner's burden to overcome the presumption of correctness by showing that the state court's holding was wrong by clear and convincing evidence.") (citations omitted), aff'd, 36 Fed. Appx. 1 (2d Cir.), cert. denied, 536 U.S. 909, 122 S. Ct. 2367 (2002).

While giving deference to the state court's factual findings, the habeas court has "the responsibility to decide independently of the judgment of the state court whether [petitioner's] confession was unconstitutionally obtained." Graham v. Leonardo, No. 98-2042, 166 F.3d 1200 (table), 1998 WL 852942 at *4 (2d Cir. Dec. 1, 1998), cert. denied, 526 U.S. 1029, 119 S. Ct. 1275 (1999); see also, e.g., Kollar v. Smith, 04 Civ. 10175, 2005 WL 1653883 at *7 (S.D.N.Y. July 12, 2005) ("because the ultimate issue of 'voluntariness' is a legal question requiring independent federal determination, we briefly review the circumstances surrounding his statements for constitutional violations in the admission of the evidence. Nevertheless, the factual questions resolved by the state courts are entitled to the presumption of correctness dictated by 28 U.S.C. § 2254(d), and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence.") (citations & internal quotations omitted); Bruno v. Cunningham, 03 Civ. 937, 2004 WL 2290503 at *9 (S.D.N.Y. Oct. 8, 2004) (citing Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449 (1985)); Davis v. Johnson, 258 F. Supp. 2d 93, 100 (S.D.N.Y. 2003) (While the "'ultimate issue of voluntariness [of a confession] is a legal question requiring independent federal determination,'" factual questions underlying that legal determination "are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).") (brackets in original) (quoting Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997)); Mackenzie v. Portuondo, 208 F. Supp. 2d 302, 324 (E.D.N.Y. 2002) ("The ultimate question of whether a confession was voluntary or involuntary []is a legal question requiring independent federal determination. Subsidiary factual questions underlying a legal determination, however, are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).") (citations & internal quotations omitted); Basnight v. Keane, No. 99-CV-5907, 2001 WL 901139 at *4 (E.D.N.Y. July 31, 2001) ("While the ultimate question of the voluntariness of such a statement is a matter for independent federal review on a habeas petition, state court determinations of underlying factual questions are entitled to the statutory presumption of correctness."); Richter v. Artuz, 77 F. Supp. 2d 385, 396 (S.D.N.Y. 1999) (Parker, D.J.) ("The Supreme Court has held that 'the ultimate question, whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.' However, a state court's determinations of subsidiary questions such as the length and circumstances of the interrogation . . . are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).").

2. The State Court Determination That Harris' Initial Statement Was Voluntary and Not the Product of a Custodial Interrogation Must Be Upheld Under The AEDPA Review Standard

Harris was in custody if, under the circumstances, a reasonable person in Harris' position "would have understood himself to be subjected to the restraints comparable to those associated with a formal arrest." United States v. Ali, 68 F.3d 1468, 1472 (2d Cir. 1995) (internal quotations omitted); see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998); see also cases cited at page 39 above. Courts have looked at various factors in making this determination, including: "whether a suspect is or is not told that [he or] she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation." Tankleff v. Senkowski, 135 F.3d at 244 (citations omitted); see cases cited at page 40 above.

The facts surrounding Harris' questioning are largely undisputed. On June 3, 1999, Harris voluntarily accompanied the police to the 26th Precinct. Detective Henriquez, who was wearing civilian clothes and did not display his handcuffs or gun, approached Harris as he was walking with friends, and said that he wanted to speak to them. (See page 5 above.)*fn27 Detective Henriquez asked Harris and the others to accompany the police to the 26th Precinct, and Harris agreed. (See page 6 above.) Detective Henriquez did not go into Harris' pockets, although he did pat Harris' pockets and waist area. (See page 6 above.) Harris was not handcuffed. (See page 6 above.) Detective Henriquez did not say anything about an arrest, and Harris, who got into the police car on his own, did not ask if he was being arrested or if he could leave. (See pages 6-7 above.)

The circumstances show that Harris voluntarily agreed to accompany the police to the police station. A person who voluntarily accompanies the police to the station for questioning, without more, is not in custody. See e.g., California v. Beheler, 463 U.S. 1121, 1122-25, 103 S. Ct. 3517, 3518-20 (1983) (where suspect voluntarily went to the police station, and was not placed under arrest, suspect was not in custody); Oregon v. Mathiason, 429 U.S. 492, 493, 495, 97 S. Ct. 711, 713, 714 (1977) (Where police initiated contact with defendant who agreed to come to the patrol office where police informed suspect that they suspected him of committing a burglary, defendant was not in custody for Miranda purposes; "police officers are not required to administer Miranda warnings . . . simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect"); United States v. Al-Marri, 230 F. Supp. 2d 535, 543 (S.D.N.Y. 2002) (suspect who voluntarily accompanied FBI agents to the FBI office in a casual manner and was interviewed in an unlocked interview room allowing suspect the chance to leave at any time, was not in custody); White v. Keane, 95 Civ. 10754, 1996 WL 527340 at *1 (S.D.N.Y. Sept. 16, 1996) (where "petitioner voluntarily accompanied the police officer to the station, never indicated that he wanted to leave and was allowed to go unescorted to the bathroom," petitioner was not in custody at the time statements were made).

The circumstances at the police station also were not coercive. Harris was taken to a fifteen by eight foot interview room, the door to which was open a crack and was never locked. (See page 7 above.) Harris did not ask whether he could leave or whether he was under arrest. (See page 8 above.) Harris sat quietly, calm and "picture perfect," and at one point slept for around an hour. (See page 8 above.) Several times, the police offered Harris food and drink. (See pages 8, 10 above.) Harris went unescorted to the bathroom, entered the bathroom labeled "men; no prisoners allowed," and, afterward, returned to the interview room without direction from any officer. (See page 10 above.)

Throughout this time, Detective Henriquez entered and exited the interview room many times, asking questions about Harris' friends' robberies for which Harris was not a suspect. (See pages 8-10 above.) Harris freely offered information about his friends' criminal activities. (See page 9 above.) Detective Henriquez did employ a ruse, telling Harris that he and Detective Valdez were FBI agents and pretending to gather physical evidence from Harris. (See pages 8-10 above.) If these ruses had been used to question Harris about Jacqueline Frezza's homicide, the result would be very different, but the detectives never mentioned the homicide throughout this period.

At around 7:15 PM, after Harris had been at the station for close to six hours, Harris finally asked why he was there. (See page 10 above.) Detective Henriquez placed two Polaroid pictures of Jacqueline Frezza's body on the table in front of Harris, and said in a calm voice, "'This is why you're here, because you did this.'" (See page 10 above.) When Harris said he did not want to see them, Detective Henriquez picked up the pictures and left the interview room. (See page 10 above.)

At around 7:30 PM, Detective Felder entered the interview room and told Harris that he did not have to speak with the detectives if he did not want to. (See pages 10-11 above.) Harris nodded his head and said it was "okay." (See page 11 above.) Detective Felder sat down across the table from Harris and spoke to him in a "usual," "soft spoken" voice. (See page 11 above.) Detective Felder told Harris that "at this point we are comfortable that we have the right person and our thing now is to find out if it was done intentionally or if it was a mistake." (See page 11 above.) That was said as a statement, not a question. (See page 11 above.) Harris replied, "it was a mistake." (See page 11 above.) Detective Felder immediately said, "[D]on't say anything else. We are going to step out and when I come back in, you can tell us what happened." (See page 11 above.) When Detective Felder reentered the interview room at 7:35 PM he read Harris his Miranda warnings. (See page 11 above.)

A reasonable person in Harris' position would not have understood himself to be subjected to restraints comparable to those associated with formal arrest. For much of Harris' interview at the 26th Precinct, he was treated as a witness. Harris never asked if he was under arrest or if he was free to leave. He calmly answered questions about his friends' crimes. Harris was offered food and water. He slept. He went to the bathroom unescorted and chose the bathroom labeled "no prisoners allowed." He sat calmly in an unlocked room, often alone and unsupervised. While he was at the precinct for many hours, he was not asked questions about, or accused of, the Jacqueline Frezza homicide. A reasonable person in Harris' position would have felt free to leave at any time. Compare, e.g., United States v. Cota, 953 F.2d 753, 758-59 (2d Cir. 1992) (suspect who was initially handcuffed but then voluntarily accompanied DEA agents and police to the station, followed by a six hour stay at the station during which suspect was free to leave, was not in a custodial interrogation); United States v. Al-Marri, 230 F. Supp. 2d at 543 (described on pages 51 & 55 above); and White v. Keane, 1996 WL 527340 at *1 (described on page 55 above); with United States v. Romaszko, 253 F.3d 757, 759-60 (2d Cir. 2001) (where suspect was directed by her boss to attend a meeting with two Postal Inspectors, with badges, handcuffs and weapons, who immediately accused her of stealing, and suspect asked to leave and was told she could not, suspect was in custody); and Nova v. Bartlett, 63 F. Supp. 2d 449, 454, 457 (S.D.N.Y. 1999) (suspect found carrying a weapon that the police confiscated was not free to leave and thus in custody where he was guarded by the police at all times when stopped, on the ride to the station house and at the station, including escorted trips to the bathroom, and where police accused him of lying to them; nevertheless, under binding Second Circuit precedent, district court felt constrained to hold that defendant was not in custody), aff'd on other grounds, 211 F.3d 705 (2d Cir. 2000).

Detective Henriquez's and Felder's brief accusations were not enough to transform the interview into a custodial interrogation. Admittedly, interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90 (1980). A "question mark" is not required.

Id., 446 U.S. at 301 n.6, 100 S. Ct. at 1690 n.6. "'Only questioning that reflects a measure of compulsion above and beyond that inherent in custody itself constitutes interrogation the fruits of which may be received in evidence only after Miranda warnings have been given. The questions asked must have been both likely to elicit an incriminating response and to produce psychological pressures that will subject the individual to the "will" of his examiner.'" United States v. Rodriguez, 356 F.3d 254, 258 (2d Cir. 2004) (quoting United States v. Morales, 834 F.2d 35, 38 (2d Cir. 1987)).

Detective Henriquez quickly and calmly responded to Harris' question as to why he was at the police station by informing him, albeit graphically by placing photographs of the victim on the table, that he was the suspect in the homicide investigation. Detective Henriquez left the room, and when Detective Felder entered the interview room fifteen minutes later, he immediately informed Harris that he did not have to speak with them if he did not want to. (See page 11 above.) After Harris said it was "okay," Detective Felder informed Harris that the police were "comfortable that we have the right person and our thing now is to find out if it was done intentionally or if it was a mistake." (See page 11 above.)

Informing an individual that he or she is a suspect does not necessarily amount to a custodial interrogation. Compare, Stansbury v. California, 511 U.S. 318, 320, 114 S. Ct. 1526, 1530 (1994) ("Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue. . . ."); and Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *10-11 (S.D.N.Y. Feb. 20, 2002) (where police confronted suspect for twenty to twenty-five minutes at the police station with information about victim's injuries, expressed skepticism about his story, and told him to tell the truth and spare his innocent family grief, situation was not so coercive as to amount to a custodial interrogation); with Tankleff v. Senkowski, 135 F.3d at 244 (where petitioner was subjected to increasingly hostile questioning at the police station for two hours, during which the detectives had accused him of showing insufficient grief and that they could not accept his explanations, a reasonable person in petitioner's position would not have felt free to leave and should have been advised of his Miranda warnings).

Based upon all the factors, singly and collectively, this Court holds that Justice Wittner's conclusion that Harris' initial statement was not the result of a custodial interrogation and thus Miranda warnings were not required, was not unreasonable based on the record evidence, not was it an unreasonable application of Miranda and its progeny. Accordingly, not only Harris' initial un-Mirandized statement but also his subsequent Mirandized statements were properly admitted into evidence at trial.

C. Harris' Subsequent Mirandized Statements Were Voluntary and Admissible Even If Harris' Initial Un-Mirandized Statement Was Made in a Custodial Interrogation

Even if Harris' initial pre-Miranda statement was found to be in violation of Miranda (contrary to the state court's and this Court's determination), the Court would need to determine whether the circumstances surrounding Harris' initial statement "were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his" subsequent Mirandized statements. Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998); see cases cited at pages 42-44 above; see also, e.g., Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522 (1986) ("coercive police activity is a necessary predicate to the finding that a [post-Miranda] confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment"); Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir.) ("[W]e must consider whether the circumstances surrounding petitioner's unwarned confessions were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his post-Miranda confession."), cert. denied, 540 U.S. 1091, 124 S. Ct. 962 (2003); Casellas v. McGinnis, No. 99-2127, 199 F.3d 1321 (table), 1999 WL 980948 at *2 (2d Cir. Oct. 22, 1999) (Defendant's subsequent statements "can be suppressed on Miranda grounds only if the circumstances surrounding the first confession were sufficiently coercive so that the defendant could not have been said to have knowingly and intelligently waived his rights with respect to these subsequent admissions."), cert. denied, 529 U.S. 1091, 120 S. Ct. 1729 (2000); United States v. Orellana-Osorio, No. 95-1541, 101 F.3d 1393 (table), 1996 WL 460797 at *2 (2d Cir. Aug. 14, 1996) ("When an unwarned admission has been made without coercion, the admissibility of additional statements, made after the subsequent administration of Miranda warnings, turns on whether these latter statements were also freely given."), cert. denied, 519 U.S. 1069, 117 S. Ct. 713 (1997).*fn28

Even assuming arguendo that Harris was "in custody" (which this Court agrees with the state courts that he was not), custody alone is not sufficient to prove coercion. "Serious pressures inherent in custodial interrogation will inevitably be present in any case under [Oregon v.] Elstad -- which, after all, addresses situations in which a defendant was in custody and entitled to Miranda warnings at some point before those warnings were given. Thus, we cannot rely solely on the Miranda presumption that custodial interrogation is coercive in determining whether [petitioner's] second confession must be suppressed." Tankleff v. Senkowski, 135 F.3d at 244; accord, e.g., Parsad v. Greiner, 337 F.3d at 183; Legree v. Greiner, 00 Civ. 6680, 2001 WL 527423 at *8 (S.D.N.Y. May 17, 2001) (Peck, M.J.), report & rec. adopted, 2001 WL 1231535 (S.D.N.Y. Oct. 16, 2001) (Cote, D.J.). As discussed above, the conditions of Harris' interrogation at the police station were not coercive. Harris was interviewed in an unlocked interview room and was free to move, unescorted, to the bathroom. (See pages 7 & 10 above.) Harris drank water, declined food and slept. (See pages 8 & 10 above.) While Harris remained at the 26th Precinct for over six hours, he was treated as a witness until the final twenty minutes of that time. (See pages 7-11 above.)

The Court must look at the "totality of the circumstances" to determine if the circumstances surrounding Harris' initial statement that "it was a mistake" were so coercive as to require suppression of his post-Miranda statements. See, e.g., Parsad v. Greiner, 337 F.3d at 183 ("in determining the voluntariness of petitioner's post-Miranda confessions, we must examine the totality of the circumstances"); Casellas v. McGinnis, 1999 WL 980948 at *2; Tankleff v. Senkowski, 135 F.3d at 244-45 (citing Campaneria v. Reid, 891 F.2d 1014, 1019-20 (2d Cir. 1989), cert. denied, 499 U.S. 949, 111 S. Ct. 1419 (1991)); United States v. Orellana-Osorio, 1996 WL 460797 at *2; United States v. Valdez, 16 F.3d 1324, 1328 (2d Cir.) ("Under standard voluntariness analysis, [the Court must] inquire 'into all the circumstances surrounding the law enforcement officials' conduct to ascertain whether it overcame the accused's will to resist and brought about a confession that was not freely self-determined.'"), cert. denied, 513 U.S. 810, 115 S. Ct. 60 (1994); United States v. Valencia, 826 F.2d 169, 177 (2d Cir. 1987); Heron v. People, 1999 WL 1125059 at *8; Vasquez v. Senkowski, 54 F. Supp. 2d 208, 213-14 (S.D.N.Y. 1999); United States v. Ford, 96 Cr. 672, 1997 WL 538813 at *11 (S.D.N.Y. Aug. 29, 1997).

The Second Circuit has emphasized the "fact-specific nature" of the "totality of the circumstances" determination. Tankleff v. Senkowski, 135 F.3d at 245.*fn29 The Court must "look to Miranda's twin rationales - trustworthiness and deterrence - to see whether suppression of the second statement would serve the general goal of deterring unlawful police conduct and the Fifth Amendment goal of assuring the receipt of trustworthy evidence." Tankleff v. Senkowski, 135 F.3d at 245 (internal quotations omitted); accord, e.g., Legree v. Greiner, 2001 WL 527423 at *9. "In applying the totality of the circumstances test, the pertinent factors which merit consideration are (1) the characteristics of the accused, (2) the conditions of [the] interrogation, and (3) the conduct of [the] law enforcement officials. In connection with the third factor, whether a suspect has been advised of his rights under Miranda is an important consideration in determining whether a confession is voluntary." Vasquez v. Senkowski, 54 F. Supp. 2d at 215 (citations & internal quotations omitted); accord, e.g., Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 2332 (2000) (The test to determine whether a statement is voluntary is "'whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession. The due process test takes into consideration 'the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.'"); Parsad v. Greiner, 337 F.3d at 183; United States v. Anderson, 929 F.2d 96,99-100 (2d Cir. 1991); United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir. 1989) ("The test of voluntariness of a confession is whether all the relevant circumstances show that the conduct of law enforcement officials 'was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined."), cert. denied, 493 U.S. 1081, 110 S. Ct. 1139 (1990); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir.) (citing cases), cert. denied, 488 U.S. 945, 109 S. Ct. 374 (1988).*fn30

The Second Circuit has further explained the three factors in the "totality of the circumstances." First, "[t]he relevant characteristics of the individual who confessed are the individual's experience and background, together with the suspect's youth and lack of education or intelligence." Green v. Scully, 850 F.2d at 902. Second, the conditions of interrogation include "the place where an interrogation is held," "the length of detention" and "the presence or absence of counsel." Green v. Scully, 850 F.2d at 902. Third, the conduct of law enforcement officials includes consideration of the repeated and prolonged nature of the questioning or the failure to inform the accused of his constitutional rights, whether there was physical mistreatment such as beatings, or long restraint in handcuffs, and whether other physical deprivations occurred such as depriving an accused of food, water or sleep, or even of clothing, for a prolonged period. In addition . . . such police conduct might include psychologically coercive techniques such as brainwashing or promises of leniency or other benefits.

Green v. Scully, 850 F. 2d at 902 (citations omitted).

Applying these factors to the record, the Court agrees with Justice Wittner and the First Department that the circumstances surrounding petitioner's pre-Miranda statement that "it was a mistake" were not so coercive as to render petitioner's subsequent post-Miranda statements involuntary. "The record provides no indication that the initial interrogation of petitioner involved physical or psychological coercion," with respect to the interrogation after the homicide. Heron v. People, 1999 WL 1125059 at *8; see also, e.g., Legree v. Greiner, 2001 WL 527423 at *9; Vasquez v. Senkowski, 54 F. Supp. 2d at 215.

To the contrary, there is no credible evidence that the detectives were hostile or abusive or that Harris asked for the interrogation to stop or requested an attorney, and all evidence indicates that Harris was talking voluntarily to the officers; thus, the police conduct was not coercive. See, e.g., Legree v. Greiner, 2001 WL 527423 at *9; United States v. Gilmore, 1999 WL 1253987 at *1 (despite initial unwarned statement, subsequent statement was knowing and voluntary where "questioning proceeded without coercion, threats, [or] any show of force"); Vasquez v. Senkowski, 54 F. Supp. 2d at 216 (police conduct "not coercive" where police were not abusive toward petitioner and merely reiterated what petitioner said before he was advised of his rights).

The pre-Miranda questioning was relatively brief and reasonable in length: although Harris was in the precinct for almost six hours before receiving Miranda warnings, almost all of that time related to questions not about the homicide but about unrelated robberies committed by Harris' friends. (See pages 7-10 above.) Harris' unwarned statement came within minutes of discussion of the homicide and then only after a fifteen minute break in questioning. After Detective Henriquez picked up the pictures of the victim's body and left the interrogation room, there was a break of fifteen minutes after which Detective Felder spoke with Harris for the first time in many hours. (See page 11 above.) Detective Felder did not give Harris full Miranda warnings, but did tell Harris that he did not have to speak to the detectives unless he wanted to, and Harris responded that it was "okay." (See page 11 above.) Harris' statement that "it was a mistake" was prompted by Detective Felder's statement, not a question, and Detective Felder then told Harris not to say anything else. (See page 11 above.) The atmosphere and questioning thus was not coercive. See, e.g., Green v. Scully, 850 F.2d at 902 (duration of interrogation not coercive where interview lasted "for just over two hours"); United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987) (duration of interrogation not coercive where interview lasted "'approximately two and one-half hours.'"); Legree v. Greiner, 2001 WL 527423 at *9 (one hour and 25 minutes of questioning not coercive); United States v. Ford, 1997 WL 538813 at *10-11 & n.9 (post-Miranda statements were admitted where there was "no indication that the statements made by the Defendants prior to the reading of their Miranda rights were in fact coerced or involuntary" since, among other things, "[t]he pre-Miranda questioning lasted a relatively short period of time"); United States v. DiLorenzo, S1 94 Cr. 303, 1995 WL 366377 at *6 (S.D.N.Y. June 19, 1995) ("The interrogation was reasonable in length, lasting approximately 2 1/2 hours.").

While Detective Henriquez employed ruses while initially talking to Harris about his friends' robberies, once discussion turned to Frezza's homicide, the ruses stopped. The detectives did not use dishonesty or misrepresentation to elicit any statements from Harris about the homicide.

Rather, when Harris asked why he was at the station, Detective Henriquez calmly showed Harris pictures of Frezza's body and said Harris was there because he did it. (See page 10 above.) Detective Henriquez left Harris alone for fifteen minutes when Detective Felder entered. (See page 11 above.) Detective Felder told Harris he did not have to talk to them, but after Harris said it was "okay," Detective Felder said they had the right person but wanted to find out if it was intentional or a mistake. (See page 11 above.) Compare, e.g., United States v. Anderson, 929 F.2d at 98-103 (post-Miranda confession suppressed because "the agent told defendant that if he asked for a lawyer it would permanently preclude him from cooperating with the police."); United States v. Zerbo, 1999 WL 804129 at *2-14 (agents isolated low intelligence, mentally ill defendant from his family); with, e.g., Legree v. Greiner, 2001 WL 527423 at *9 ("The detectives did not use dishonesty or misrepresentation to elicit statements from [petitioner]."); United States v. Ford, 1997 WL 538813 at *10 ("No psychologically coercive tactics were used . . . . ").

As soon as Harris said "it was a mistake," Detective Felder immediately told Harris not to say anything else, and left the room. (See page 11 above.) Detective Felder returned a few minutes later and Mirandized Harris. (See page 11 above.) While the passage of time from the unwarned statement to Harris' first post-Miranda warnings statement was short, so was the prior statement, i.e., the cat was not really out of the bag. Moreover, once Harris was Mirandized, he was not questioned, but only asked to write down in his own words what happened. (See page 12 above.) Nothing in the record indicates that Harris did not knowingly waive his Miranda rights.

Furthermore, Harris' videotaped confession was taken by an assistant district attorney, not the detectives, five hours after Detective Felder first read Harris his Miranda rights. See, e.g., Vasquez v. Senkowski, 54 F. Supp. 2d at 217-18 (Videotaped confession was voluntary where petitioner had already received and waived Miranda rights three times, the assistant district attorney, rather than the detectives, conducted the taped interview at a different station house approximately sixteen hours after petitioner's initial interview with detectives.); Pabon v. Hake, 763 F. Supp. 1189, 1191, 1194 (E.D.N.Y. 1991) (Videotaped statement was voluntary where it was petitioner's third statement, taken eight hours after petitioner's second statement, and was taken by a different person, an assistant district attorney.); McIntyre v. Scully, No. 89 C 903, 1989 WL 69893 at *3 (E.D.N.Y. June 19, 1989) ("Since [petitioner's] first, unwarned confession was not coerced, there was no constitutional reason to exclude the third, videotaped confession. Petitioner made that statement over three hours later after having twice received Miranda warnings and twice waived his rights. An assistant district attorney who had not heard the earlier admissions conducted the interrogation, although the police detective who took down the written confession was also present. This break in the interrogation and change in personnel, coupled with reiteration of the warnings and waiver, suffice to remove the taint of the unwarned statement. By then petitioner knew that he was free to speak or to remain silent. Having chosen to speak, he must live with the consequences of his choice.").

This was not a case where the police intentionally kept a suspect awake for long periods so that he would be more easily manipulated into confessing. While Harris spent six hours in the precinct before the first statement, it was in the afternoon, and Harris also was allowed to sleep while at the precinct. (See pages 7-10 above.) See, e.g., United States v. Guzman, 11 F. Supp. 2d 292, 298 (S.D.N.Y.) (petitioner's suggestion that he was coerced by sleep deprivation rejected where no evidence "to suggest that [petitioner] expressed any fatigue he felt, or that he indicated a desire to end the interrogation.") (& cases cited therein), aff'd, 152 F.3d 921 (2d Cir. 1998); United States v. DiLorenzo, 94 Cr. 303, 1995 WL 366377 at *8 (S.D.N.Y. June 19, 1995) ("[A] claim that a defendant was exhausted or suffering from the effects of alcohol is not, in the absence of coercive law enforcement activity, sufficient to characterize his confession as involuntary.") (& cases cited therein.); cf. United States v. Ortiz, 99 CR 532, 1999 WL 1095592 at *3 (S.D.N.Y. Dec. 3, 1999) (Voluntariness claim failed for lack of "coercive police activity" where defendant alleged that "the effects of heroin withdrawal" prevented him from knowingly and voluntarily waiving his Miranda rights and that he had "informed the police of his 'condition.'".).

Therefore, "'in view of the totality of the circumstances, the detectives' conduct was entirely appropriate, and, indeed, there is nothing in the record to support a finding that the detectives' conduct prevented petitioner from freely and intelligently waiving his rights and agreeing to speak to the detectives' upon being given Miranda warnings." Legree v. Greiner, 2001 WL 527423 at *9 (quoting Vasquez v. Senkowski, 54 F. Supp. 2d at 215-16) (conditions surrounding interrogation not coercive where petitioner voluntarily accompanied the police to the stationhouse from his apartment, was not handcuffed, questioning "did not last long" and "the conduct of the detectives conducting the questioning of petitioner was not coercive" or abusive); see also, e.g., Parsad v. Greiner, 337 F.3d at 184 (where room was unlocked throughout the interrogation, suspect was not handcuffed prior to his actual arrest, suspect was questioned intermittently for almost four hours before incriminating statement, and there was no evidence of physical abuse of the petitioner, petitioner's pre-Miranda statements were not coerced); Nova v. Bartlett, 211 F.3d at 709 (There has been no "evidence presented to indicate that the questioning of [petitioner] was coercive or that his statements were otherwise involuntary. His later, fully warned confessions were therefore admissible."); Diaz v. Senkowski, 76 F.3d 61, 63, 65 (2d Cir. 1996) (Totality of the circumstances indicated petitioner's statements were voluntary where "(1) [petitioner] was legally an adult; (2) there was no evidence that [petitioner] had below-average intelligence; (3) there was no evidence that [petitioner] was denied food, access to the bathroom, or sleep during his [stationhouse] interrogation; (4) [petitioner] was not beaten, otherwise abused, or even handcuffed; (5) the [four-hour] duration of the interrogation did not by itself establish that the statement was involuntary; and (6) '[t]he threat of speaking to [petitioner's grandmother] is not the type of coercion that, without more, would overbear a normal person's will and cause [him] to confess involuntarily . . .'"); Holland v. Donnelly, 216 F. Supp. 2d 227, 231-34 (S.D.N.Y. 2002) (no coercion where petitioner voluntarily accompanied officers to police headquarters, never asked to leave, was not told by the police that he was or was not free to leave, spent the night at headquarters "sleeping in his chair at least some of that time," was twice offered food and drink in over 19 hours, was allowed to use the bathroom, was questioned not continuously but on four separate occasions.), aff'd, 324 F.3d 99 (2d Cir.), cert. denied, 540 U.S. 834, 124 S. Ct. 86 (2003); Wilson v. Walker, 2001 WL 1388299 at *4 (Post-Miranda statements admissible where petitioner was questioned for seven continuous hours but "was never told that he could not leave"; "was allowed to go to the bathroom unattended and was given food and drink"; "questioning . . . was not overly aggressive and did not employ trickery or deceit"; "nothing about [petitioner's] individual characteristics . . . made him particularly vulnerable to police interrogation"; and "there is no indication that [petitioner] did not understand his rights once he was given the [Miranda] warnings or that his waiver was not knowing and voluntary."); Richter v. Artuz, 77 F. Supp. 2d 385, 396 (S.D.N.Y. 1999) (Parker, D.J.) (No coercion found where petitioner was "present at the police barracks for a considerable amount of time, [but] was questioned only intermittently and not continuously . . . was offered and refused food and drink . . . . [and] did not express his desire to leave . . . [or] to speak with an attorney.").

Harris has failed to demonstrate that the "totality of the circumstances" here rendered the Miranda warnings ineffective. Harris' post-Miranda written and videotaped confessions were properly admitted at his trial (and thus admission of the unwarned "it was a mistake" statement would be, at worst, harmless error).

D. The Circumstances of Harris' Pre and Post-Warnings Statements Are Distinguishable from the Circumstances of Missouri v. Seibert *fn31

As discussed above (see pages 44-46 above), in Missouri v. Seibert the Supreme Court held that the "question-first" police interrogation technique, by which police intentionally elicit a complete and detailed pre-warning confession, then subsequently administer Miranda warnings to obtain the identical confession, overcame the waiver and violated the suspect's Fifth Amendment rights. Missouri v. Seibert, 542 U.S. 600, 604, 611, 124 S. Ct. 2601, 2605, 2610 (2004). In Seibert, before administering Miranda warnings, the police elicited a complete and detailed confession, at which point "there was little, if anything, of incriminating potential left unsaid." Id. at 616, 124 S. Ct. at 2612.

The facts surrounding Harris' statements are greatly dissimilar. In this case, Harris' initial statement was not coerced. While the police questioned Harris at length about his friends' robberies, his initial statement ("it was a mistake") came after only a few minutes of reference to the homicide. Detective Henriquez showed him pictures of Frezza's body and said that was why Harris was at the precinct. (See page 10 above.) Fifteen minutes later, Detective Felder told Harris he did not have to talk to them, and when Harris said it was "okay," Detective Felder said the police knew Harris did it, but wanted to learn if it was intentional or a mistake, to which Harris responded, "it was a mistake." (See page 11 above.) Rather than learn all the details as in Seibert, Detective Felder immediately told Harris not to say anything else; Detective Felder returned a few minutes later and read Harris his Miranda warnings. (See page 11 above.) Detective Felder ensured that Harris understood his rights, which Harris knowingly and voluntarily waived. (See pages 11-12 above.) Detective Felder left the room to allow Harris to write a full and detailed statement; Detective Felder had no influence on the content of this first Mirandized statement. (See page 12 above.) The First Department specifically found that there was no evidence in the record "that the police used the pre-warnings statement to obtain the post-warnings statement, or that the police deliberately withheld warnings in order to obtain a preliminary statement that would lead to a later statement." People v. Harris, 7 A.D. 3d 446, 446-47, 776 N.Y.S. 2d 801, 801-02 (1st Dep't), appeal denied, 3 N.Y.3d 675, 784 N.Y.S. 2d 14 (2004). The First Department's factual findings are entitled to AEDPA deference, and in any event, this Court agrees with the First Department. The Court concludes that the detectives did not use the deliberate two-step interrogation technique forbidden by Seibert, and moreover, Harris' initial statement -- only four words long ("it was a mistake") -- was not detailed enough, nor elicited in such a way, as to make a subsequent waiver ineffective. Harris made a knowing and voluntary waiver of his Miranda rights before his confessions. Admission of Harris' Mirandized statements was proper not only under Elstad but even under Seibert (and since the substance of Harris' non-Mirandized "it was a mistake" statement was included in his later, Mirandized statements, admission of the former would be harmless error even if that statement was found to be the result of custodial interrogation).

III. HARRIS' CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE CLAIM IS BARRED BY ADEQUATE AND INDEPENDENT STATE GROUNDS, AND, IN ANY EVENT, LACKS MERIT

Harris' second habeas claim asserts that "the trial court deprived [Harris] of his right to present a defense, when it refused to permit [Harris] to establish that, contrary to the police version of [Harris'] presence at the stationhouse, that [Harris] was free to leave at any time, his brother had been told by a detective the opposite, that he was not free to leave the stationhouse or to speak with his family." (Dkt. No. 1: Pet. ¶ 13(2); see Dkt. No. 18: Harris Br. at 33-38.) The First Department rejected Harris' constitutional right to a defense claim as unpreserved and, in any event, without merit, stating: "To the extent that [Harris] is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no impairment of [Harris'] right to present a defense." People v. Harris, 7 A.D.3d 446, 446-47, 776 N.Y.S.2d 801, 801-02 (1st Dep't), appeal denied, 3 N.Y.3d 675, 784 N.Y.S. 2d 14 (2004). Because the First Department's decision was based on adequate and independent state-law grounds, Harris' right to present a defense claim is barred from federal habeas review. In any event, the claim lacks merit.

A. Adequate and Independent State Ground Doctrine *fn32

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations & internal quotations omitted).*fn33

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state [ ] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n.10, 109 S. Ct. at 1044 n.10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").*fn34 Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n.10, 109 S. Ct. at 1044 n.10.

B. Harris' Right To Present A Defense Claim Is Barred By An Adequate And Independent State Ground

The First Department rejected Harris' claim that he was denied the right to present a defense when the trial court precluded the testimony of Harris' brother, holding:

At trial, the court properly exercised its discretion in excluding evidence that was irrelevant to the voluntariness of [Harris'] confession or any other issue to be considered by the jury. To the extent that [Harris] is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no impairment of [Harris'] right to present a defense.

People v. Harris, 7 A.D.3d 446, 446-47, 776 N.Y.S.2d 801, 801-02 (1st Dep't), appeal denied, 3 N.Y. 3d 675, 784 N.Y.S. 2d 14 (2004).

State courts are not required to use any particular language: We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim -- every state appeal, every denial of state collateral review -- in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559 (1991).

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,*fn35 here the First Department explicitly stated that it found Harris' constitutional right to present a defense claim to be "unpreserved," People v. Harris, 7 A.D.3d at 446-47, 776 N.Y.S.2d at 801-02, and the fact that the First Department also stated the conclusion it would reach on the merits "[w]ere [it] to review this claim," id., does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 & n.4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d 721, 724-25 & n.3 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997) (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).*fn36 Thus, the First Department's decision here unambiguously rested on a state procedural ground.*fn37

Under New York law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)).*fn38 A party must make a specific protest at the time of a claimed error to preserve an issue for appellate review. E.g., People v. Hardy, 4 N.Y.3d 192, 197 n.3, 791 N.Y.S.2d 513, 517 n.3 (2005). Failure to specify the grounds for a claim of error at the time of an objection (either because an objection is general, or because it specifies a different ground than that raised on appeal) renders claims not specified unpreserved for appellate review. E.g., Olivo v. Thorton, 2005 WL 3292542 at *10 ("Under New York law, a party's failure to specify the grounds for its general objection also renders its argument unpreserved for appellate review.") (citing N.Y. cases); People v. Kello, 96 N.Y.2d 740, 743-44, 723 N.Y.S.2d 111 (2001) (Claim is unpreserved where defendant "never based his trial objection to the 911 tapes on the Confrontation Clause. Rather, the only issue raised before the trial court was the erroneous admission of the tapes under our State common-law hearsay rule. . . . The defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which . . . differs from the trial evidence error which was preserved."); People v. Tonge, 93 N.Y.2d 838, 839-40, 688 N.Y.S.2d 88, 88 (1999) ("a party's failure to specify the basis for a general objection renders the argument unpreserved for [state appellate] review."); People v. Robinson, 88 N.Y.2d 1001, 1002, 648 N.Y.S.2d 869, 870 (1996) ("to frame and preserve a question of law reviewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error."); People v. Velasco, 77 N.Y.2d 469, 474, 568 N.Y.S.2d 721, 723 (1991); People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 900 (1991).*fn39

In this case, Harris' counsel clearly objected and even took "exception" to Justice Wittner's decision to preclude the testimony of defense witness, Alvin Hodge, as irrelevant. (Tr. 540-51.) The trial record shows, however, that defense counsel focused his arguments on the testimony's relevance. (Tr. 540-51.) Harris argued that Hodge's testimony was relevant to establish the nature of the police questioning and that Harris was in custody. (Tr. 541.) The defense also claimed it was relevant to impeach the police's credibility. (Tr. 544-46.) Harris did not argue at trial that the preclusion of Hodge's testimony would prevent him from presenting a defense, and at no time at trial was there any discussion of Harris' constitutional rights. (See Tr. 540-51.) Indeed, Harris' brief to the First Department conceded that his "counsel did not state talismanic words such as 'due process' or 'Confrontation Clause'" in his argument at trial. (Dkt. No. 8: Ans. App. Ex. B: Harris 1st Dep't Br. at 38.) Under New York law, that failure rendered the constitutional right to present a defense claim unpreserved for appellate review.

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S. Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S. Ct. 2639, 2644-48, 2650 (1986) (same); Franco v. Walsh, 73 Fed. Appx. 517, 518 (2d Cir. 2003) (finding petitioner's claim of an erroneous jury charge procedurally defaulted because "[n]o contemporaneous objection to the charge was lodged, and the Appellate Division found that the issue was therefore unpreserved."); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citing Bossett v. Walker, 41 F.3d 825, 829 n.2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995), & Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S. Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (failure to object constituted adequate and independent state ground), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (violation of New York's contemporaneous objection rule is an adequate and independent state ground).*fn40

Because there is an adequate and independent finding by the First Department that Harris procedurally defaulted on his constitutional right to present a defense claim, Harris would have to show in his habeas petition "cause for the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S. Ct. at 2565.*fn41 Harris does not allege cause, prejudice or a fundamental miscarriage of justice. Thus Harris' claim that he was denied a defense is procedurally barred for habeas review.

C. Even If Not Precluded From Habeas Review, Harris' Right To Present A Defense Claim Lacks Merit

1. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings *fn42

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'").*fn43 Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S. Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).*fn44

The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.*fn45 See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp. 2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).*fn46

Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system.*fn47 Here, Harris asserts that his Fifth, Sixth and Fourteenth Amendment rights under the Confrontation and Due Process Clauses were violated by the trial court's evidentiary rulings. (Dkt. No. 1: Pet. ¶ 13(2); Dkt. No. 18: Harris Br. at 21-28.)

Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original).*fn48 The

test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'"*fn49 "'create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S. Ct. at 2401-02).*fn50

The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp. 2d at 276.*fn51

The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21

In sum, for the petitioner to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

2. Harris' Right To Present A Defense Claim Lacks Merit

As discussed above, the test of whether a defendant was in custody prior to receiving Miranda warnings is an objective one: what a reasonable person, innocent of any crime, would have thought had he or she been in the defendant's position. People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 859 (1969); Stansbury v. California, 511 U.S. 318, 320, 114 S. Ct. 1526, 1529 (1994) ("The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned."); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984) ("The only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation."); see additional federal cases cited at pages 39-40 above; see also, e.g., People v. Pena, 300 A.D.2d 132, 751 N.Y.S.2d 474, 475 (1st Dep't 2002); People v. White, 164 A.D.2d 413, 417, 564 N.Y.S.2d 314 (1st Dep't 1991), aff'd, 79 N.Y. 2d 900, 581 N.Y.S. 2d 651 (1992). The unarticulated, subjective plans of the police officers conducting the interview are not relevant to whether a reasonable innocent person would feel that he or she were in custody. E.g., Stansbury v. California, 511 U.S. at 320, 114 S. Ct. at 1529; Berkemer v. McCarty, 468 U.S. at 442, 104 S. Ct. at 3151 ("A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time."); United States v. Mendenhall, 446 U.S. 544, 555 n.6, 100 S. Ct. 1870, 1877 n.6 (1980); People v. Rodney P., 21 N.Y.2d 1, 8-9, 286 N.Y.S.2d 225, 232 (1967) ("'(T)he custody requirement of Miranda does not depend on the subjective intent of the law enforcement officer-interrogator.'"); People v. Norton, 135 A.D.2d. 984, 986, 522 N.Y.S. 2d 958, 959 (3d Dep't 1987) ("a 'policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody"'") (quoting Berkemer v. McCarty); People v. Joy, 114 A.D.2d 517, 520, 494 .N.Y.S.2d 420, 423 (2d Dep't 1985) ("[T]he standard to be applied is what a reasonable man, innocent of the crime, would have believed had he been in the defendant's position. The subjective intent of the officer to detain an individual is irrelevant except insofar as it is conveyed to the individual.") (citations omitted); see also cases cited at page 40 above.

In this case, Justice Wittner found that Hodge's testimony, which only shed light on the unarticulated plan of the detectives at the 26th Precinct, was irrelevant as a matter of law to whether Harris was in custody and whether his statements were voluntary. (Tr. 540-41, 547; see pages 21-22 above.) Hodge's information was unknown to Harris at the time and so could only go to the subjective intent of the police, which is irrelevant, and not to the objective test of whether a reasonable innocent person in Harris' position would have thought he was in custody.

Given the trial court's broad discretion to determine the relevancy and admissibility of evidence, this Court cannot find that Justice Wittner's decision to preclude Hodge's testimony was error under state law. Moreover, even if Justice Wittner exercised her discretion improperly, considering the deference required under the AEDPA, this Court cannot find that the trial court's preclusion of Hodge's testimony and the First Department's affirmation of that ruling constituted an objectively unreasonable application of the Agurs standard. See also, e.g., Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *23 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.) (discussing habeas legal standard governing the right to present a defense & citing cases), report & rec. adopted, 2004 WL 2149116 (S.D.N.Y. Sept. 22, 2004) (Daniels, D.J.).

Accordingly, even if it were cognizable on habeas review, Harris' claim that the trial court's preclusion of his brother's testimony denied him his constitutional right to present a defense is without merit.

IV. HARRIS' EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Harris' habeas petition asserts that his sentence of twenty-five years to life imprisonment for his conviction for first degree murder should be reduced because, inter alia, Harris "was eighteen years-old at the time of the crime," and "is a first felony offender and has never been to prison [and] was never charged or convicted for [another] crime." (Dkt. No. 18: Harris Br. at 29; Dkt. No. 8: Ans. App. Ex. B: Harris 1st Dep't Br. at 39; see Dkt. No. 1: Pet. ¶ 13(3).)

Harris' excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).*fn52

In this case, it is undisputed that Harris' sentence was within the range prescribed by state law. Harris was found guilty of first degree murder and was sentenced to twenty-five years to life imprisonment. First degree murder is a class A-I felony, and the court can impose an indeterminate sentence with a maximum of life imprisonment and a minimum term of twenty to twenty-five years. Penal Law §§ 125.27, 70.00(2)(a), 70.00(3)(a)(i)(A).

Because Harris' sentence is within the statutory range, it is not reviewable by this

Court as "excessive."

CONCLUSION

For the reasons discussed above, Harris' habeas petition should be DENIED in its entirety and a certificate of appealability should not be issued.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 2102, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Crotty (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Respectfully Submitted,

Andrew J. Peck United States Magistrate Judge


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