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Rodriguez v. Portuondo

July 28, 2006


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Petitioner Wilson Rodriguez ("Rodriguez" or "Petitioner"), an inmate at Shawangunk Correctional Facility, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging a conviction in the New York Supreme Court, Bronx County of second-degree murder and second-degree criminal possession of a weapon. Rodriguez is currently serving a sentence of twenty-five years to life on the murder conviction, with a concurrent sentence of three and a half to seven years for illegal possession of a weapon.

Rodriguez raises four claims in support of his request for habeas relief:

(1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) prosecutorial misconduct with regard to witness testimony; and (4) denial of due process based on the trial court's failure to suppress unconstitutionally suggestive show-up identifications of Petitioner that were the result of an illegal arrest.*fn1 Respondent seeks dismissal of the Petition on the ground that none of Petitioner's claims are of constitutional dimension. The Court agrees with Respondent and DISMISSES this petition with prejudice.


A. Underlying Offense and Investigation

Petitioner's conviction stems from the shooting death of Onesimo Liz ("Liz") at the corner of 167th Street and Findlay Avenue in the Bronx on the night of March 16, 1992. At the time, Liz was one of six passengers in a car driven by his friend Ray Arroyo ("Arroyo"). (Trial Tr. ("T.") 15, May 16, 1994.) The men had just returned from seeing a movie in Manhattan, and had stopped on Findlay Avenue to discuss which passenger to take home first.

(T. 14, 24, 74, 89, 181, 183.) While stopped on the corner, Arroyo and two of his passengers, John Ortiz ("Ortiz") and Alex Rosario ("Rosario"), noticed a man heavily decked in gold jewelry standing on the corner with a female companion. (T. 34-35, 152-59, 439-40.) The group decided that Liz would be dropped off first, so Arroyo began driving in the direction of Liz's home. (T. 49.) Arroyo drove halfway down 167th Street, but then decided to buy something at the store on the corner, so he put the car in reverse and drove back up 167th Street towards the corner he had just left. (T. 49, 108-09.)

When the car returned to the corner, the man with the gold chains yelled towards the direction of the car, "What the fuck are you looking at?" He then pulled out a weapon, aimed toward the back windshield of the car, and fired one shot, hitting Liz in the back of the head. (T. 51-57, 150, 156-57, 234-35, 242-45, 336-37, 345-47.) Arroyo immediately drove towards Lincoln Hospital, but Liz died of his injuries. (T. 57-59, 119, 164, 446, 499, 615-16.) An autopsy revealed that Liz died from a single gunshot wound to the back of the head. (T. 547-48.)

Detective John McCarthy ("McCarthy") was assigned to investigate Liz's death.

(T. 565.) McCarthy interviewed Arroyo and the other occupants of the car. (T. 566-69.) On the second page of the investigative report ("DD-5"), McCarthy noted that none of the occupants could identify the perpetrator, his female companion, or the clothing they wore. (Am. Pet., Ex. A, at 2.) McCarthy's continued investigation revealed that Rebecca Cruz ("Cruz") was the female companion at the scene of the shooting who handed the gun to the shooter. McCarthy visited Cruz on March 19, 1992 and questioned her about the incident, at which time Cruz told McCarthy that Rodriguez was the shooter, gave McCarthy a photograph of Petitioner and informed him of Petitioner's name and address. (T. 571-72.)

B. Pre-Trial Proceedings

On March 19, 1992, the police arrested Rodriguez in the hallway of his apartment building, based on the information provided by Rebecca Cruz. During the arrest, the officers seized a photograph of Rodriguez from his apartment.*fn2 After his arrest, the police took another photograph of Rodriguez's hands, which showed Rodriguez wearing several gold rings on his fingers. (Trial Tr. ("T.") 576, 578, May 23, 1994.) At the precinct, Ineabella "Mindy" Santiago ("Santiago"), who was on the corner of 187th Street and Findlay Avenue with Rodriguez prior to the murder but did not witness the shooting, viewed Rodriguez through a oneway mirror, and identified Rodriguez as the man on the corner. (Hearing Tr. ("W.") 11, 13, Apr. 19, 1994.) McCarthy then brought Cruz back to the precinct to identify Rodriguez. (W. 7-8.) After viewing Rodriguez through a one-way mirror, Cruz identified Rodriguez as the shooter. (W. 8-9.)

On April 20, 1992, a Bronx County grand jury returned a multiple count indictment of Petitioner, charging him with murder in the second degree, manslaughter in the first degree, criminal possession of a weapon in the second, third and fourth degrees, and reckless endangerment in the first degree. (Indictment No. 2920/92.)

Petitioner's counsel moved to suppress the photograph and the confirmatory identification by Cruz and Santiago at the police precinct as the fruits of an illegal arrest. The Court held a Wade/Payton hearing on April 19, 2004. (W. 1.) Based on the evidence presented at the hearing, the court found that Petitioner had been illegally arrested in his home, without a warrant or exigent circumstances. (W. 190.) Accordingly, the court suppressed the photograph seized from Petitioner's apartment as a result of the unlawful warrantless arrest.*fn3 (Id.; T. 5.) The court refused, however, to suppress the confirmatory identifications by Cruz and Santiago. The court rejected defense counsel's argument that the precinct show-ups used to identify Petitioner were per se unconstitutional, finding that because both Cruz and Santiago knew Petitioner prior to the shooting,*fn4 their identifications of Rodriguez were confirmatory, and therefore were admissible. (T. 3-6.)

C. Trial and Conviction

Trial commenced before Justice Dominic Massaro of the Bronx County Supreme Court on May 16, 1994. (T. 1.) Officers never recovered the gun and no physical evidence existed linking Petitioner to the scene of the crime, so the prosecution's entire case turned on eyewitness testimony. In total, the prosecution called five eyewitnesses: Cruz and Santiago, the occupants of the car in which Liz was riding when he was shot, and a man who witnessed the shooting while using a public pay phone.

The first witness called by the prosecution was Arroyo, the driver of the car in which Liz was killed. (T. 11.) Arroyo testified that his car remained on the corner of 167th Street & Findlay Avenue for approximately two or three minutes before it pulled away. (T. 25.) During that time, he noticed "a female that he recognized" standing on the corner with "a short girl and a guy," neither of whom he had seen before.*fn5 (T. 25-26, 32.) He described the male companion as Hispanic, approximately 5'9", and wearing lots of gold jewelry, including rings on both hands and approximately six chains. (T. 33-35, 46.) Arroyo was unable to identify Petitioner as the shooter. (T. 47-48.)

Upon cross-examination, Arroyo admitted that he did not tell police that he had seen the shooter. (T. 72-73.) Arroyo also admitted that he had no recollection of giving McCarthy -or any other officer-the information contained in the DD-5 report. (T. 120-23.) Defense counsel read only from the first page of the DD-5 report, and did not read out loud the statement contained on the second page of the DD-5 report that Arroyo could not "ID the perp or females or clothing they wore." (Am. Pet., Ex. A., at 2.) In fact, when the DD-5 report was handed to Arroyo to refresh his recollection,*fn6 the prosecution interjected:

Prosecution: Your Honor, the witness is now reading from the second page. I don't know if that was intended by defense counsel.

Defense: I believe it continued on the second page.

Prosecution: No, it does not.

(T. 122.) Defense counsel did not question this statement or further utilize the DD-5 when cross-examining Arroyo or any other prosecution witness.

The prosecution later called the other occupants of the vehicle as witnesses.*fn7

John Ortiz, who sat in the front passenger seat, testified that he saw two females and one male on the corner, and the male wore a black leather jacket, black pants and many gold rings and chains.

(T. 151-52, 159.) He also testified that the shooter had "a nice haircut" and stood between 5'8" and 5'10" tall. (T. 152, 159.) Ortiz then positively identified Petitioner as the shooter. (T. 159, 191-92.) Anthony Garcia, who was in the back seat with Liz, could not identify the shooter or his clothing. Alex Rosario, who was also in the back seat, could not identify the Petitioner in court, but remembered that the shooter had a great deal of gold jewelry and a black leather jacket. (T. 389.) Defense counsel did not impeach any of these witnesses with their prior statement, contained in McCarthy's DD-5 report, that immediately after the shooting they were unable to identify the shooter, his female companions, or the clothes they wore.

Cruz and Santiago both testified for the prosecution. Cruz testified that she had known Petitioner for approximately a year and a half before the incident and that Santiago was her sister-in-law. (T. 224-25.) She explained that immediately before the shooting, she was hanging out with Santiago and Rodriguez on the corner of 167th Street & Findlay Avenue when a car pulled up. (T. 227-28, 230, 232.) The occupants of the car were looking at Cruz and Rodriguez and they "looked like they were going to come out of the car to do something," so Rodriguez demanded his gun, which Cruz was holding. (T. 232, 234-35.) When Cruz refused, Rodriguez took the gun from her and shot directly at Arroyo's car. (T. 234-35.) The two then fled the scene in a cab.*fn8 (T. 235.)

Santiago testified that she was with Cruz and Santiago on 167th Street & Findlay Avenue immediately before the murder, but she did not witness the shooting because she was in a store at the time that it happened. Santiago explained that she met Rodriguez for the first time earlier in the day on March 16, 1992, at approximately 1:00 p.m. (T. 391-92.) The two spoke for approximately ten minutes, and then Rodriguez gave Santiago his beeper number so that she could call him in the future. (T. 392, 394.) Santiago met up with Cruz and Rodriguez later that same evening on Elliot Place in the Bronx. (T. 397.) The three walked to Santiago's mother's house to drop off her son, and then walked to 167th Street & Findlay Avenue. (T. 397-98) Once at 167th Street & Findlay Avenue, Santiago went in and out of the store on the corner looking for her friend Evelyn, while Cruz and Santiago waited outside. (T. 402.) Santiago was inside the store when the fatal shot was fired, and when she exited the store she did not see Rodriguez on the corner. (T. 403-04.)

The prosecution also called Michael Justin Adams ("Adams") as an identification witness. Adams had no prior knowledge of the defendant, his female companions, or the occupants of the car; he happened to be using a public payphone at the corner of 167th Street & Findlay Avenue at the time of the shooting. (T. 324-25.) When Adams first approached, Cruz and Santiago were using the phone to wish someone a happy birthday. (T. 327-28.) When they hung up, Adams picked up the phone. (T. 328-29.) Santiago returned to the store, and Cruz and Rodriguez remained on the corner, only a few steps from where the public payphone was located.

While on the telephone, Adams observed a car driving south on Findlay Avenue. He thought the car was driving in an unusual manner, as it had stopped at the corner, backed up, then stopped again and returned to the corner, so he took note. (T. 363.) As the car proceeded towards the intersection, the man on the corner looked afraid, and yelled "what the fuck are they looking at!" (T. 329, 334.) The man then grabbed a gun from the pants of his female companion and put the gun in his pants. (T. 335-36, 345-46.) He again yelled towards the car "what the fuck are you looking at," then pulled the gun from his pants, aimed "point blank" at the back windshield, and fired one shot. (T. 346.) Adams positively identified Rodriguez as the shooter and Cruz as his female companion. (T. 326, 334.) Like the occupants of the car, Adams noticed that the man on the corner was draped in gold jewelry, with multiple gold rings on his fingers and chains around his neck. (T. 335-36.)

The last two witnesses for the prosecution were the medical examiner, who testified about the circumstances of Liz's death, and McCarthy, who testified about his investigation leading to Petitioner's arrest. On cross-examination, ...

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