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Carter v. Poole

July 30, 2008


GEORGE H. LOWE, United States Magistrate Judge



On December 1, 2004, Petitioner Harold Carter, pro se, filed a Petition under 28 U.S.C. § 2254for a writ of habeas corpus. He challenges the judgment entered on July 26, 2000, in Oneida County Court convicting him, after a jury trial, of two counts of second degree murder and two counts of second degree robbery and sentencing him to an indeterminate term of 25 years to life. Petitioner's conviction was affirmed by the Appellate Division, Fourth Department, and leave to appeal to the Court of Appeals was denied. People v. Carter, 767 N.Y.S.2d 539 (N.Y. App. Div. 2003); leave denied People v. Carter, 2 N.Y.3d 738 (N.Y. 2004).


Petitioner argues that he is entitled to habeas relief on the following grounds:

1. There was insufficient evidence that Petitioner's actions actually caused the victim's death.

2. The trial court violated Petitioner's due process rights by allowing police officers to testify about conversations they overheard between Petitioner and his co-defendant.

3. The trial court erred by admitting statements Petitioner made to the police.

4. The trial court abused its discretion by denying Petitioner funds to secure an expert.

5. The trial court violated Petitioner's due process rights by admitting gruesome photographs of the victim's body.

6. Petitioner's confession was not sufficiently corroborated by independent proof as required by New York Criminal Procedure Law section 60.50.

7. The sentence was unduly harsh, and thus violated Petitioner's Constitutional right to be free from cruel and unusual punishment.

(Dkt. No. 1 at 7A-7G.)


Glenn Morgan was last seen alive on August 18, 1999. It was his 73rd birthday.

At about noon, Morgan went to the American Legion Hall to celebrate. (Trial Transcript Vol. I ["T1"] at 187:23-189:3.) Morgan wore a red baseball cap with the initials "USMC." (T1. at 189:16-18, 219:22-25.) Mary Voorhees, also known as "Leather," came into the American Legion Hall approximately one half hour after Morgan. She was wearing a brown or black cowboy hat. (T1. at 195:7-10, 214:4-11, 222:3-23, 223:17, 242:15-16.) Leather sat down next to Morgan's friend at the bar and asked Morgan to buy her a drink. She whispered to Morgan's friend, "I like to suck," which the friend relayed to Morgan. (T1. at 237:21-239:15.) Morgan drank more than usual because it was his birthday. He and Leather danced and periodically exchanged hats. (T1. at 197:6-9, 213:5-7, 227:18-20; T2. at 27:8-16.)

Morgan and Leather left the American Legion Hall at around 3:30 p.m. (T1. at 199:1-2) and went to several other bars throughout the course of the afternoon and evening. They were seen together at the Green Lantern between 3:15 and 3:30 p.m. (T2. at 150:12-152:10), the Anchor Inn at approximately 4:30 p.m. (T2. at 42:2-44:6), and the Hylander Bar at approximately 5:30 p.m. (T2. at 286:10-289:8.) Leather left the Hylander around 7:00 p.m., and Morgan was seen leaving at some point before that. (T2. at 290:20-292:6.)

Around dusk, Leather and Morgan arrived at the home of Jay Rood and Regina Gardinier on Whitesboro Street near the Hylander Bar. (T3. at 192:12-194:16, 208:9-15.) Regina's daughter went with Leather to pick up a pizza. (T3. at 197:16-20, 209:8-13.) On their way back to the house, they picked up Petitioner as he walked down the street*fn2.

At about the same time, Carole Zaniewski saw an elderly man wearing a big, white or tan colored hat walking west on Whitesboro Street a few blocks from the intersection of Whitesboro and Oriskany. (T5. at 118:8-119:19, 123:5-11, 125:19-23, 140:9-12.) His appearance caught her attention, and she watched him cross the street. (T5. at 142:9-13.) She watched him trip going up onto the curb. He appeared to be drunk. (T5. at 119:20-24.) When she looked for him again in her rearview mirror, the man was gone. (T5. at 120:1-2.) She could not positively identify the man as Morgan. (T5. at 136:8-11.)

After the pizza party, at 7:46 p.m., Petitioner bought a 12-pack of Keystone Ice beer at Rite Aid. (T2. at 299:4-302:14.)

Between 8:00 p.m. and 8:30 p.m., Leather and a thin man in his early 30s with long hair arrived at the Green Lantern without Morgan*fn3 . (T2. at 68:12-69:11, 89:13-21.) Leather had a car and a twenty-dollar bill, both of which were unusual for her. (T2. at 71:3-72:15.) Leather appeared to be restless and uneasy. (T2. at 80:8-11, 115:21-116:3.) They stayed approximately twenty minutes and left. (T2. at 73:18-25.) Leather and Petitioner*fn4 went to Sullivan's bar between 8:30 and 9:00 p.m., and stayed until the bartender refused to serve them and asked them to leave. (T2. at 276:1-282:24.) Leather and Petitioner returned to the Green Lantern sometime after 10:00 p.m. Leather appeared more at ease. (T2. at 79:17-20, 80:6-7, 117:2-13.)

Morgan's family was expecting him for a birthday dinner. When he failed to arrive and the family could not locate him, they contacted his son-in-law, Sean Finn, a police officer. (T1. at 68:7-74:8.) Finn called the Utica Police Department and began searching for Morgan. (T1. at 87:13-88:2.)

At approximately 11:00 p.m., Officer James Watson located Morgan's car at the Green Lantern. (Transcript of April 17, 2000, Huntley hearing ("H") at 7:3-14; T5. at 47:11-50:12.) Leather and Petitioner exited the bar and approached the car. (H. at 7:17-25; T5. at 51:12-22.) Leather had the keys (T5. at 51:23-24), and was wearing Morgan's red baseball cap. (T3. at 220:8-221:5; T5. at 57:14-19.) Watson asked them to identify themselves and they complied, giving their correct names. (H. at 8:23-9:7; T5. at 52:3-13.) Officer Watson asked them where Morgan was, and Leather said she did not know. (T5. at 54:9-10.) Petitioner said Leather had come to his house, picked him up and brought him back to the Green Lantern to have a drink.

(H. at 9:19-24.) Petitioner denied having any contact with Morgan. (T5. at 54:21-24.)

Soon, Sean Finn arrived on the scene. (T5. at 56:23-25.) Finn recovered Morgan's car keys and hat from Leather. (T5. at 58:10-17.) He examined the car and noticed a twelve-pack of Keystone beer inside. (T1. at 127:24-128:8.)

Leather was taken in for questioning. (T2. at 83:18-23.) Petitioner was allowed to go home. (T1. at 108:1-4.) Leather's and Petitioner's fingerprints were recovered from the car. (T5. at 20:2-22:6, 40:23-41:19.)

On August 20, 1999, New York State Police Investigators Allen Cordary and Pamela Morris were assigned to locate and interview Petitioner. (T4. at 7:7-17; Transcript of April 28, 2000, Huntley hearing ("H1") at 3:13-20.) They found Petitioner cleaning the bar located under his apartment. (T4. at 7:24-9:1.) Cordary asked Petitioner to accompany him to the State Police barracks at Marcy ("SP Marcy") and Petitioner agreed. (T4. at 10:10-11.) Petitioner did not appear to have been drinking, spoke clearly, and appeared to understand what Cordary said. (T4. at 9:16-10:1.) Cordary patted Petitioner down and Petitioner got in the back of the police car. (H1. at 28:9-17.) Cordary read Petitioner his Miranda rights and asked Petitioner whether he understood his rights and whether he wished to talk to the police. (T4. at 10:11-17, 12:19-13:11, 13:21-23.) Petitioner said yes. (T4. at 13:1-13.)

At SP Marcy, Cordary and Morris interviewed Petitioner in the "I.D. room." (T4. at 15:4-16:10.) Cordary asked Petitioner how he "became associated with a car that ... was the car of a missing person." (T4. at 21:5-7.) Petitioner said that he had been walking home from a friend's house when Leather pulled up behind him in the car. (T4. at 21:25-22:5.) There was another woman with her. (T4. at 22:6-8.) They went to a residence near the Hylander Bar and ate some pizza. After that, Leather drove Petitioner to the Green Lantern. (T4. at 22:9-12, 51:17-21.) Petitioner told Cordary that he never saw "the older gentleman." (T4. at 23:11-12, 52:21-22.)

After the interview, which lasted about an hour and a half, Petitioner reviewed the written statement that Cordary prepared. (T4. at 24:6-21.) Petitioner initialed each of the Miranda rights listed at the top of the document, signed below the written Miranda warnings, initialed each page, and signed and dated the bottom of the second page. (T4. at 27:12-18.) Petitioner did not object to anything in the written statement or request any corrections. (T4. at 28:21-29:8.) After Petitioner signed the statement, Morris fingerprinted him. (T4. at 53:23-54:8.) At about noon, Cordary drove Petitioner home. (T4. at 55:1-10.)

At about 3:30 p.m., Cordary and Morris returned to Petitioner's home and transported him to SP Marcy. (H1. at 47:17-48:14, H. at 50:6-14.) For the next 24 hours, Petitioner remained at the police station.

Beginning at about 4:30 p.m., Petitioner was interrogated in the interview room by Investigators Timothy Blaise and Ken Dence. (H. at 21:3-22:9.) Petitioner told Blaise and Dence that he had never seen Morgan. (H. at 22:20-25.)

Petitioner was not allowed to leave the interview room until 8:05 p.m. At that time, he was given a break to drink some coffee. (H. at 39:20, 40:12-14, 50:19-20.) Thereafter, Petitioner was given several breaks to drink water and coffee, use the restroom, and eat. (H. at 45:25-46:4.)

After Blaise and Dence questioned Petitioner, he was interrogated by Senior Investigator Graham. (H. at 23:21-24:6.) At about 10:45 p.m., Senior Investigator Graham came out of the interview room and said "we are going to go for a ride down to Barnes Ave." (H. at 24:25-25:3.) Graham drove Petitioner to Barnes Avenue. (H. at 25:5-11.) When they arrived, Petitioner said he did not know anything about Morgan being in that area, so after a few minutes they returned to SP Marcy. (H. at 25:21-25.)

Upon Petitioner's return to SP Marcy at about 11:30 p.m., he was questioned in the interview room by Investigators Lane Newton and Lyle Baxter. (H. at 56:8-25, 58:21-25.) Petitioner was not given Miranda warnings. (H. at 79:22-24.) Petitioner continued to maintain that he had never seen Morgan. (H. at 59:3-15.)

At about 1:00 a.m., Petitioner said he was getting tired. (H. at 26:23-27:4, 51:12-15.) He was not given the option of going home to go to sleep. (H. at 93:17-19.) Instead, the officers brought in some chairs for him to lie on and monitored him through the two-way mirror. (H. at 93:17-19.)

At about 2:00 a.m., Blaise and Newton saw that Petitioner's eyes were open, so they entered the interview room and resumed the interrogation. (H. at 27:4-9.) At that point, Petitioner's story drastically changed. (H. at 27:10-14.) He said that when Leather pulled up behind him as he was walking home, the "elderly gentleman" was in the car with her. (H. at 28:6-11.) Petitioner got in the car for about twenty seconds, then remembered that he wanted to pick up some beer at a friend's house. He jumped out of the car, picked up the beer at the friend's house and then returned to where the car had been. The car was gone. (H. at 28:11-16.) He was walking home when Leather and the elderly gentleman pulled up again. The three of them drove to "some woman's" house and ate a pizza with several other people. (H. at 28:16-22; 66:3-7.) After they ate the pizza, Petitioner got back into the Saturn with Leather. Somebody got in the back seat, but Petitioner did not see who it was. (H. at 28:22-23:1.) They drove to a Rite Aid, where Petitioner bought some beer. When he got back into the car, he noticed that the elderly gentleman was there. (H. at 29:1-5.) From there, they drove to a pavilion on Barnes Avenue. (H. at 29:5-6.) Petitioner stayed in the car drinking a beer while Leather and the elderly gentleman got out. Petitioner saw them walk out of sight. (H. at 29:8-11.) About four minutes later, Leather returned alone, got into the car and sped down Barnes Avenue back into the city.

(H. at 29:13-18.) Petitioner asked Leather where the elderly gentleman was. Petitioner said they should turn around and try to find him. (H. at 29:18-21.) They drove back to the pavilion area and shined the high beams. They did not see anyone. (H. at 29:21-25.) They returned to the city and went to the Green Lantern. (H. at 29:25-30:1.)

After repeating this story for Investigator Dence, Petitioner was allowed to sleep at about 4:30 a.m. (H. at 30:10-17, 32:16-19, 33:11-16, 52:2-4, 67:21-68:5.)

Cordary, who had gone home when his shift ended on August 20, returned to SP Marcy at about 7:00 a.m. on August 21. (H1. at 18:5-16.) He and Investigator Heidi Abrial were assigned to take Petitioner to Barnes Avenue. (H1. at 18:17-20.) They went to the pavilion that Petitioner described. (H1. at 20:16-19.) Petitioner told the officers where to look, but the search was unsuccessful. (H1. at 21:8-18.) They returned to the interview room at SP Marcy. (H1. at 21:19-24.)

Abrial administered Miranda rights at 9:51.a.m. (H1. at 22:7-16, 62:2-9.) For the next five or six hours, until 3:30 p.m., the investigators took a statement from Petitioner. (H1. at 23:16-24.) Petitioner was given four coffee breaks during that time. (H1. at 24:22-23.) While giving the statement, Petitioner was cooperative, alert and coherent. (H1. at 26:13-17.) He never expressed a desire to leave. (H1. at 26:21-23.) No threats or promises were made to Petitioner in exchange for giving the statement. (H1. at 27:2-4.) Petitioner never asked for an attorney. (H1. at 27:5-7.) He never asked to use the telephone. (H1. at 86:5-8.) He never asked to talk to a family member or a friend. (H1. at 86:9-14.) The investigators gave Petitioner an opportunity to review and correct the statement*fn5 . (H1. at 25:4-25.) Cordary drove Petitioner home between 4:00 and 4:30 p.m. (H1. at 27:8-16.)

On the morning of August 23, Investigators Dennis Dougherty and Michael Conroy picked Petitioner up at his home and brought him to SP Marcy to undergo a polygraph examination. (H1. at 161:20-162:22; T4. at 164:7-25.) The examination was administered by Senior Investigator Dennis J. Blythe. Upon arriving at SP Marcy, Petitioner was escorted into the interview room. (H. at 116:21-117:4.) Blythe gave Petitioner a booklet explaining the polygraph procedure and left Petitioner alone to read it. (H. at 99:22-100:10.) Blythe asked Petitioner if he had any questions and if he would be willing to take a polygraph. (H. at 100:13-15.) Petitioner did not have any questions and said he was willing to take the polygraph examination, so Blythe took him to the polygraph suite. (H. at 100:15-16.) Before entering the suite, Blythe asked Petitioner if he understood why he was there and whether he knew what was going to happen. (H. at 101:14-19.) Petitioner said he was there to take a polygraph about a missing person. (H. at 102:13-16.) Blythe told Petitioner that he was free to leave even in the middle of the polygraph session. (H. at ...

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