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Bodenburg v. Conway

August 4, 2007


The opinion of the court was delivered by: Spatt, District Judge.


Presently before the Court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Charles Bodenburg ("Bodenburg" or the "Petitioner"). For the reasons that follow, the petition is denied.


A. Procedural History

Bodenburg petitions this Court pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. The Petitioner seeks relief from his June 7, 2001 conviction, following a bench trial in Supreme Court, Suffolk County, New York (Corso, J.), for one count of depraved indifference murder in the second degree. The charges arose out of the August 30, 1999 death of three-year-old Kayla Zachman ("Kayla").

After conviction, the Petitioner was sentenced to an indeterminate term of 25 years to life imprisonment. The New York Appellate Division, Second Department, affirmed the conviction, People v. Bodenburg, 7 A.D.3d 534, 775 N.Y.S.2d 595 (2d Dep't 2004), and the New York Court of Appeals denied leave to appeal, People v. Bodenburg, 3 N.Y.3d 657, 816 N.E.2d 572, 782 N.Y.S.2d 699 (2004).

On February 24, 2005, Bodenburg filed a § 2254 petition, alleging: (1) that his confessions were improperly admitted at trial; (2) prosecutorial misconduct; (3) insufficiency of the evidence; and (4) ineffective assistance of trial counsel. On March 29, 2005, the Court appointed counsel to represent the Petitioner.

On October 20, 2005, the Petitioner's appointed counsel submitted a memorandum in support of his petition for a writ of habeas corpus. In the memorandum, the Petitioner alleged that his counsel was ineffective and that his insufficiency of the evidence claim was impacted by the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). The Petitioner contended that the expert testimony set forth at trial, specifically the testimony of two Suffolk County medical examiners, improperly relied on hearsay, in violation of the Petitioner's right to confrontation. The Petitioner further contended that because the defense's expert witness disagreed with the prosecution's expert witnesses regarding the cause of Kayla's death, the evidence was insufficient to support his conviction.

The Petitioner further claimed that the prosecutor made inflammatory and prejudicial remarks throughout trial. Specifically, the Petitioner alleged that the prosecutor made emotionally charged statements regarding the death of a child. However, the Petitioner admitted that the Court reprimanded the prosecutor stating "Don't put anything like that on the record because you know that's reversible error. You're going to use the death of a child, that what you're going to use? Don't even use it in your closing." The Petitioner claimed that despite the Court's warning, during summation, the prosecutor continued to make prejudicial comments about the death of a child.

In addition, the Petitioner complained that the prosecutor made inappropriate references to the defense's witnesses, including a comment that a witness was "either a medical incompetent or a medical whore." Again, as the Petitioner admitted, the Court struck the prosecutor's comments and reprimanded the prosecutor. Further, the Petitioner contended that the prosecution improperly submitted DNA evidence demonstrating the presence of semen, which was prejudicial to the Petitioner at trial because the prosecution's theory was that the Petitioner had sodomized Kayla with a crutch. The Petitioner claims that the prosecution further improperly submitted testimony from a computer expert demonstrating that the Petitioner viewed pornography on his computer prior to Kayla's death.

Finally, the Petitioner alleged that his confessions should have been precluded as involuntary because at the time of his confessions, Bodenburg was 20 years old; he had limited experience with law enforcement;he had been awake for 24 hours; he was unemployed; and hewas in an "emotionally and physically deprived state." The Petitioner claimed that he was interrogated for 12 hours and that the interrogation was "confrontational."

On March 31, 2006, this Court determined that Bodenburg's ineffective assistance of counsel claim was unexhausted. As a result, the Court ordered that the Petitioner had thirty days to either (1) request a stay and return to the state court to exhaust his claim of ineffective assistance; or (2) amend and resubmit the habeas petition to present only exhausted claims. On April 21, 2006, the Petitioner filed an amended habeas petition. Pursuant to this Court's Order, Bodenburg eliminated his ineffective assistance of counsel claim, presently seeking review only of his remaining claims.

B. Factual Background

On August 30, 1999, three-year-old Kayla died immediately following a period in which she was in the Petitioner's care. That night, Kayla's mother, Tori Zachman ("Tori"), left Kayla and Bodenburg's infant son, Mikey, with Bodenburg. Tori was Bodenburg's girlfriend at this time. The Petitioner babysat for the children at Tori's father's house located at 1011 Portion Road in Farmingville, Suffolk County, New York.

1. The Prosecution's Huntley Hearing and Trial Testimony

a. Testimony of Police Officer George Lewis

On the evening of August 30, 1999, Police Officer Lewis, while on regular patrol, received a call complaining of a two-year-old child having trouble breathing. Officer Lewis arrived at 1011 Portion Road, Farmingville, at roughly the same time as theFarmingville Rescue First Responder. At the time Officer Lewis entered the dwelling, rescue was performing C.P.R. on Kayla in a kitchen/living room. Kayla was then transported to Stony Brook Hospital. (H. 7-9; Tr. 104-08).*fn1

Officer Lewis spoke to the Petitioner while waiting for information regarding Kayla's condition. The Petitioner told Officer Lewis that "he was up all night and didn't get to sleep. His girlfriend left him to watch the children and he dozed off. And he woke up and saw [Kayla] sitting on the floor slumped over. There was a bottle of Amaretto laying next to her." Officer Lewis asked whether the bottle was full and the Petitioner responded that "not too much was missing from the bottle." Officer Lewis further testified that the Petitioner stated, while crying, that his girlfriend was going to kill him and that she had him arrested a couple of weeks earlier. Officer Lewis testified that he did not threaten Bodenburg and that Bodenburg was cooperative. (H. 10-11; Tr. 110-11).

b. Testimony of Detective James A. Roys

On August 30, 1999, Detective Roys arrived at 1011 Portion Road at 9:34 p.m. Detective Roys spoke with the Petitioner and heexplained that he woke up from a nap and found Kayla on the kitchen floor with a bottle of Amaretto. He said that she was unresponsive and that he yelled to her and shook her to no avail. He then called 911.

(H. 32-35; Tr. 148-51).

At about 10:10 pm Detective Roys asked the Petitioner whether he would agree to go to police headquarters and give a statement to the police regarding the events of that night. The Petitioner agreed. At 10:25 pm, Detective Roys, Detective Anderson and the Petitioner arrived at police headquarters. The Petitioner was not under arrest and was not handcuffed. (H. 37-41; Tr. 154-62).

At 10:45 pm, after learning that Kayla had suffered anal trauma, Detective Roys advised the Petitioner that he was going to give him his constitutional rights. Detective Roys read the Petitioner his Miranda rights and provided a card to the Petitioner, detailing his rights, so he could read along. The Petitioner stated that he understood his rights, initialed the standard issue Miranda card and waived his right to counsel. (H. 42-48; Tr. 164-69).

The Petitioner explained to Detective Roys that he had stayed at his friend's house the night before and that he, Tori, Kayla, and Mikey had arrived at Tori's father's house at about 3:00 or 3:30 p.m. The Petitioner stated that he was supposed to watch Kayla and Mikey while Tori and a friend went out. Alone with the children, the Petitioner explained that he watched television and used the computer. The Petitioner stated that, at about 7:30 pm, he dozed off on the couch while watching television and awoke to the banging of a bottle. He claimed that he found Kayla in the kitchen with a bottle of Amaretto between her legs and called the paramedics. (H. 48-53; Tr. 175-80).

Detective Roys testified that he asked whether there had ever been an accusation regarding the Petitioner's conduct with Kayla and the Petitioner stated that Kayla had accused him of touching her "private parts." The Petitioner stated that the accusations were not true and that "all he did was touch her butt." When Detective Roys inquired further, the Petitioner explained that he had spanked Kayla in the past.

(H. 54-55; Tr. 181).

Although the Petitioner claimed he had not done anything to hurt Kayla on August 30, 1999, the Petitioner admitted that he spanked her that day. Detective Roys then asked if Bodenburg had touched her "asshole" and the Petitioner denied that he could have touched her there. Detective Roys defined pedophile to the Petitioner as "a person that had a sickness, they touch children inappropriately and they need to be treated and helped." Detective Roys also explained that there was a team of experts going over the house including people from the crime laboratory and other detectives. Detective Roys explained that if there was evidence of anything that happened in the house, the police would find it. (H. 55-58; Tr. 184--85).

Detective Roys testified that at this point Detective McAlvin took over the questioning. Detective Roys testified that he took the Petitioner to the restroom once or twice during the night. According to Detective Roys, the Petitioner never asked for an attorney and never asked him to stop the questioning. Detective Roys said that he did not threaten the Petitioner at any time during their conversations in the house, squad car, or at headquarters and the Petitioner was cooperative throughout the interviews. (H. 60-61; Tr. 187-89).

c. Testimony of Detective Gerard McAlvin

Detective McAlvin testified that he began interviewing the Petitioner at about 1:10 am on August 31, 1999. He began by introducing himself to the Petitioner and reading the Petitioner his Miranda rights off a Miranda warning card. The Petitioner agreed to speak with Detective McAlvin without an attorney. The Petitioner told Detective McAlvin that at around 3:30 p.m. Kayla was watching television and Mikey was in his car seat and that the Petitioner began picking up papers around the house. While cleaning, the Petitioner explained, Kayla was throwing papers around and making a mess, so he became annoyed and "smacked her in the butt." The Petitioner further stated that he made Kayla stand in the corner for a short period of time. The Petitioner explained that at this point he began e-mailing friends on the computer and attempted to order a movie from the Playboy website. (H. 120-28; Tr. 241-54).

The Petitioner stated that he was watching television at about 7:00 pm and fell asleep at about 7:30 pm. The Petitioner stated that when he awoke at about 7:45 pm, Kayla was sitting on the kitchen floor slumped over a bottle of Amaretto. The Petitioner told Detective McAlvin that "he was pissed . . . he went over there and picked up Kayla by the arm . . . grabbed her by the right arm. Pulled her up . . . He hit her in the butt." The Petitioner explained that Kayla began walking away and crying, so he kicked her. The Petitioner then stated that because Kayla was moving slowly, he threw the television remote control at her. The Petitioner told Detective McAlvin that Kayla was crying and afraid to go into a dark room. The Petitioner stated that he grabbed Kayla, took her into the room, threw her on the bed face down, and she kept crying and yelling. The Petitioner became even more angry, so he held Kayla down and spanked her. Kayla yelled and cried "Daddy, stop." The Petitioner stated that he pulled down her shorts and underwear and hit Kayla's bare bottom. (H. 129-33; Tr. 254-58).

At this point, Detective McAlvin told the Petitioner that doctors had informed him that Kayla had been sodomized. Detective McAlvin testified that he accused the Petitioner of sodomizing Kayla. Detective McAlvin testified that he "continually accused him of sodomizing the girl, putting his penis in her, and he continually denied it. And I told him, I said, well, those injuries just didn't happen, I mean they just don't appear . . . something happened . . . And I continually challenged him." Bodenburg then admitted that he held Kayla down and put two or three fingers into her anus. He told Detective McAlvin that he pushed hard because Kayla would not stop crying. After Detective McAlvin continued to accuse the Petitioner of sodomizing Kayla with his penis, the Petitioner stated that he had used a stick, specifically the bottom part of a crutch, to hit Kayla. (H. 134-35; Tr. 259-62).

Detective McAlvin testified that at this point the Petitioner admitted that he continued to hit Kayla in the face and took a pillow and put it over her face and held it to her face. The Petitioner admitted that the child rolled over and he held her down and pushed her face into a pillow. He admitted that he pushed very hard and Detective McAlvin testified that Bodenburg got down on the floor of the interrogation room and physically demonstrated how he had hit and held down Kayla. The Petitioner told Detective McAlvin that when he finally let go of her, Kayla was shaking, her fists were clenched and she was gasping and choking. The Petitioner said he called 911 and told the 911 operator that Kayla was unconscious from drinking. (H. 136-39; Tr. 263-65).

Detective McAlvin testified that he asked the Petitioner if he was willing to make a written statement and the Petitioner agreed to do so. Detective McAlvin again read Bodenburg his Miranda rights. Bodenburg again declined to contact an attorney.

Bodenburg began to draft a written statement at about 2:00 am, detailing the events leading up to Kayla's death. The statement was completed ...

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