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Rivera v. Ercole

July 6, 2007


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.


Petitioner Angel Rivera ("Rivera"), currently an inmate at Green Haven Correctional Facility, brings this petition for habeas corpus, alleging that he is being held in state custody in violation of his constitutional rights. See 28 U.S.C. § 2254. Petitioner is currently serving concurrent terms of twenty-three years to life for Attempted Murder in the Second Degree, and two to four years for Intimidating a Witness in the Second Degree. Petitioner was convicted by the New York Supreme Court, Bronx County following trial, where the prosecution presented evidence that Petitioner had nearly killed Juan Rodriquez ("Juan") in a stabbing attack on February 29, 2000, and later, threatened Juan in an attempt to prevent him from testifying. Petitioner asserts that his due process rights under the Fourteenth Amendment, and his right to confront a testifying witness under the Sixth Amendment, were violated by the trial court's admission, under the "excited utterance" exception to the hearsay rule, of statements made by an unavailable, non-testifying witness. For the reasons stated below, I dismiss the petition and deny habeas corpus.


Petitioner and Juan became acquainted in 1999, when Juan's sister, Margarita Rodriquez ("Margarita"), and Petitioner began dating. Tr. 357, 366. Although Margarita had ended the relationship near the end of 1999, Juan remained friendly with Petitioner, whom he continued to see "practically every day" around the neighborhood. Tr. 277. On one such occasion, in late February of 2000, Petitioner approached Juan and told him that "Edwin," who had previously loaned Juan $70, "wanted his money." Tr. 286-87. Juan replied by instructing Petitioner to, "tell Edwin I'll pay him his money back." Tr. 286. No further discussion occurred and Juan did not believe the matter to be serious. Tr. 286, 290.

A few days later, on February 29, 200, Juan was walking on Hoe Avenue in the Bronx, accompanied by his former girlfriend, Doris Rodriguez ("Doris"). Tr. 289-90, 297. At approximately 3:30 p.m. Petitioner approached Juan and said, "Where is my money?*fn1 This is for you," and proceeded to stab Juan in the chest repeatedly. Tr. 289-90. During the attack, Doris, who knew Petitioner, having previously been introduced to him by Margarita, screamed "Angel, stop that." Tr. 292, 358. Despite Juan's efforts to protect his chest with his hands, one of the stab wounds perforated his heart, and when paramedics arrived on the scene at approximately 3:35 p.m., they found him "unresponsive" and with "no blood pressure," but continued to minister to him. Tr. 452-53.

Approximately ten minutes after the stabbing, Doris found a payphone and paged Margarita. Tr. 359-60. In addition to entering the phone number of the payphone she was calling from, Doris indicated the urgency of the page by adding the digits "911." Tr. 360. Almost immediately, Margarita responded to the page and called Doris at the payphone. Tr. 359. Doris was "crying and screaming" and told Margarita, "[y]our brother just got stabbed.. He got stabbed by Angel.. Your ex-boyfriend." Tr. 360.

Detective Patrick Mulcahy, who arrived on the scene while the paramedics were working on Juan, questioned Doris about the attack.*fn2 Tr. 335. Doris, whom Detective Mulcahy described as "emotionally distraught," "crying," and "very upset," told the detective that she did not know the identity of Juan's assailant. Tr. 348-49. While Doris spoke with Detective Mulcahy, paramedics revived Juan by administering a pericardial thump.*fn3 Tr. 454. Once Juan's pulse was restored, Doris accompanied him in the ambulance as he was transported to a nearby hospital. Tr. 359-69. Margarita arrived at the scene minutes after the ambulance departed, and told police about her conversation with Doris. Tr. 360.

Later that afternoon, Doris was taken to the 41st precinct, where Detective Peter Schwartz interviewed her. Tr. 405-06. In that interview, Doris identified Petitioner as Juan's attacker, and assisted the detective in determining where Petitioner could be found. Tr. 406. Based the information provided by Doris, Detective Schwartz located Petitioner in lower Manhattan, and, at approximately 10:00 p.m., arrested him for the attempted murder of Juan. Tr. 408.

At the hospital, surgeons operated on Juan and repaired a hole in the left ventricle of his heart. Tr. 463. The surgical team also discovered and repaired a wound to Juan's diaphragm. Tr. 465. Upon awakening from surgery, Juan spoke with police regarding the attack, and, following his release from the hospital, testified before a Grand Jury in Bronx County that Petitioner had stabbed him in the heart on February 29, 2000. Tr. 295-96. On March 23, 2000, the Grand Jury indicted Petitioner for, inter alia, Attempted Murder in the Second Degree. N.Y. Penal Law § 110.00/125.25[1]. Petitioner was remanded to Rikers Island Correctional Facility. Just over one week later, on April 1, 2000, Petitioner called Juan from Rikers Island and told him that he would "put the word on the street" if Juan did not "change his testimony." Tr. 300. Juan reported the phone call to police and Petitioner was subsequently indicted for Intimidating a Victim or Witness in the Third Degree on April 14, 2000. N.Y. Penal Law § 215.15[1]. Both indictments were consolidated on August 10, 2000.

Prior Proceedings and Procedural History

Petitioner's trial commenced on January 22, 2002, and was presided over by Justice Robert L. Cohen of the New York Supreme Court, Bronx County. On Thursday, January 24, 2002, outside the presence of the jury, the prosecutor informed Judge Cohen that the District Attorney's office had been unable to locate Doris who apparently, had moved to Florida without providing an address or phone number. Tr. 228-29. The prosecutor requested that Margarita be allowed to testify, under the "excited utterance" exception to the hearsay rule, as to the phone conversation in which Doris had identified Petitioner as Juan's assailant. Tr. 229. The prosecutor explained that his conversations with Margarita, as well as his review of police records, indicated that Doris had paged Margarita, and then spoken with her on the phone almost immediately after the stabbing. Tr. 229. The prosecutor also attested to having evidence that Doris described the attack in a hysterical tone of voice. Tr. 229. When asked if he objected to the admission of Doris's statements, Petitioner's counsel responded that he would like more time to review the sequence of events to determine if the statements qualified as "truly an excited utterance." Tr. 230. He suggested that the court conduct a hearing to clarify the facts surrounding the statements. The judge declined this suggestion, and instead, conditionally ruled that if Doris witnessed the startling events of Juan's stabbing, and if she spoke with Margarita "within a reasonable period" after the stabbing, her statements were admissible as excited utterances. Tr. 234-35. The judge noted that the evidence provided by the prosecutor, as well as the Grand Jury minutes, suggested that these two conditions were satisfied. As a result, the judge stated that he did not believe a hearing was necessary, but reserved his decision until the following Monday to give defense counsel the opportunity to raise any additional arguments. Tr. 235.

On the following Monday, the judge proceeded without ruling further on the admissibility of Doris's alleged statements. Nevertheless, the prosecutor, in his opening statement, informed the jury that they would hear from Margarita that, minutes after the stabbing, she spoke to a hysterical Doris, who told Margarita that Petitioner had stabbed Juan. Tr. 264. Defense counsel made no objection.

For his first witness, the prosecutor called Juan, who testified unequivocally that Petitioner had stabbed him in the chest on February 29, 2000. Tr. 290-91. Juan explained his relationship with Petitioner, and described the $70 unpaid debt to "Edwin" that apparently motivated the attack. Tr. 256-87. Juan also discussed his history of drug use and admitted to using cocaine on the day of the attack. Tr. 329.

Detective Patrick Mulcahy testified next, explaining that he arrived at the scene of the stabbing within five or ten minutes of receiving a radio call reporting that an assault had taken place on the corner of 167th Street and Hoe Avenue. Tr. 334. Petitioner's counsel requested that Detective Mulchay's police report, which he completed at the scene of the stabbing, be admitted into evidence. Tr. 341. Counsel argued the he should be permitted to "combat" Doris's testimony with the report, which indicates that, shortly after the stabbing, Doris told Detective Mulcahy that she didn't know who had stabbed Juan. Tr. 345. Justice Cohen admitted the report into evidence, over the objection of the prosecutor, opining that "it would be extremely unfair and, possibly, if this defendant is convicted, [a] ...

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