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Hansen v. Smith

August 20, 2008


The opinion of the court was delivered by: Gary L. Sharpe United States District Judge

Decision and Order

I. Introduction

Petitioner Kristian Hansen is currently an inmate in the custody of the New York State Department of Correctional Services at Shawangunk Correctional Facility. He was convicted on August 16, 1999 of first degree murder (N.Y. PENAL LAW §125.27 (1)(a)(vii)) and first degree robbery (N.Y. PENAL LAW § 160.15(2)) after a jury trial in Albany County and is presently serving an aggregate sentence of life in prison without parole. Dkt. No. 1, Pet. at 1; Dkt. No. 10, Respondent's Memorandum of Law ("Resp't Mem."), at 1.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that: (1) the trial court erred when it denied his motion to dismiss the indictment on the ground that the prosecutor misled the grand jury regarding co-defendant Melissa Davis's cooperation agreement; (2) a gun and Petitioner's statement to police should have been suppressed because police entered his home without a warrant or consent; (3) the trial court erred when it failed to admit Davis's statement to a third party as substantive evidence, resulting in the denial of Petitioner's right to present witnesses; and (4) the trial court's failure to apply the same sentencing criteria to non-capital first-degree murder cases as to capital murder cases denied Petitioner due process and equal protection. Dkt. No. 1 at 5-6; Dkt. No. 21, Reply Memorandum ("Reply Mem."), at 7-19; Resp't Mem. at 17-29. For the reasons that follow, the petition is denied.

II. Background

A. Facts

According to the testimony adduced at trial, in July and early August 1996, Melissa Davis lived in the upstairs unit of a two-family home owned by her parents located at 499 Third Street in Albany, New York. Transcript of Trial of Kristian Hansen ("Trial Tr.") at 376-77. The unit had its own entrance. Id. Petitioner frequently stayed with Davis. Id. at 377.

During the evening of July 31, 1996, Petitioner talked to Davis about a $300.00 debt they owed a drug dealer. Trial Tr. at 320-21, 378-79. Davis and Petitioner discussed ways to satisfy the debt, and Petitioner suggested that they rob a cab driver. Id. at 321, 379-80. Petitioner was carrying a .25 caliber handgun that Davis stole from her mother. Id. at 379. He purchased ammunition for the gun at a local K-Mart store approximately two weeks prior to the incident. Id. at 380.

Davis and Petitioner chose an address on Morris Street and at approximately 3:00 a.m., Davis called for a cab to meet them there from a payphone in front of a nearby drugstore. She used a telephone number Petitioner gave her. Trial Tr. at 85-86, 90-93, 321, 382. When Davis hung up the phone, Petitioner told her, "Now, when we go in there I'm going to shoot him and you take his wallet." Id. at 382.

When the cab arrived, Davis got into the front seat and Petitioner got into the back seat behind the driver, Santo Cassaro. Davis heard Petitioner say something to Cassaro and then "the gun went off". Trial Tr. at 383-85, 404-05. Petitioner told Davis to "[g]rab his wallet", and Davis moved Cassaro's arm and reached into his pocket to get his wallet. Id. at 385. Davis and Petitioner fled. Id. at 322, 386.

At approximately 4:00 a.m., Davis and Petitioner went back to Davis's apartment, but the door was locked and Davis did not have her key. Trial Tr. at 386-88. They eventually went to a friend's house. Id. at 407-08. At approximately 8:00 a.m., Davis and Petitioner returned to Davis's apartment. Id. at 388, 408. Petitioner put the gun on top of the computer in the livingroom, and Cassaro's wallet was put in a trash bag in Davis's room. Id. at 322, 388.

At approximately 4:30 a.m, Cassaro was found dead inside his cab in front of 686 Morris Street in Albany. Trial Tr. at 94-95, 98-103, 118-21. Police recovered a .25 caliber shell casing from the floor of the cab. Id. at 141-42, 161. Dr. Jeffrey Hubbard testified that Cassaro died of a gunshot wound to the back of his head. Id. at 508. Dr. Hubbard determined that the bullet entered the back right side of Cassaro's head and traveled downward and to the left through his cerebellum, exited the skull bone on the lower left side, and lodged in the soft tissue below and forward of the left ear. Id. at 498-501. A projectile was removed from Cassaro and transported to the New York State police crime laboratory for testing. Id. at 153-56.

Detective Joseph Severance of the Albany Police Department received information that a few days before the shooting, Petitioner was looking for ammunition for a .25 caliber automatic handgun. Trial Tr. at 292. Detective Severance spoke to Detective Gustavo Flores, who had prior dealings with Petitioner. Detectives Severance, Flores, and Charles Mulrooney went to 499 Third Street to speak to Petitioner about his possible possession of a gun. Id. at 197, 293, 356-57. The detectives went up the front stairs of the house and opened a double screen door and the inside door into the hallway. Id. at 294-95. They knocked on the first floor door, and an occupant of the apartment told them Petitioner was upstairs. Id. at 295. The detectives proceeded up the stairs and knocked on the second floor door. Petitioner stepped out into the hallway and agreed to accompany police to the station. Id. at 295, 357. Petitioner wanted the detectives to handcuff him because he did not want to be seen voluntarily accompanying them. Id. at 200-01, 295-96, 356. The detectives refused but permitted Petitioner to place his hands in front of him with a sweatshirt over them. Id. at 295-96, 357.

When the detectives and Petitioner arrived at the police station, Petitioner was given his Miranda*fn1 warnings. Trial Tr. at 203-05, 297-302. Initially, he told police that although he possessed a .25 caliber gun, he had thrown it into the Hudson River. Id. at 205-07, 302-03. Detective Mulrooney confronted Petitioner, telling him it did not make sense to throw away a gun unless he had used it. Id. at 206, 358-59, 362-63. Petitioner began to cry and admitted he shot Cassaro and told police where to find the gun. Id. at 205, 318-23, 360-64, 359-62. According to Petitioner, he got into the back seat of the cab behind Cassaro, pointed the gun at his head and demanded money. Cassaro moved his arm and the gun "went off." Id. at 321. Petitioner told police that he reached over the front seat and took Cassaro's wallet from his right back pocket before fleeing. Id. at 322.

Davis was in the downstairs unit of 499 Third Street talking to Francine Vero on the phone when the detectives left with Petitioner. Trial Tr. at 389-90, 412, 414. During their conversation, Davis told Vero that she had been involved in the shooting, but denied having told Vero that she, and not Petitioner, shot Cassaro. Id. at 390, 414-16. After Petitioner left, Davis believed "it was just a matter of time" before the police returned to arrest her. Trial Tr. at 418. She went to her room and retrieved marijuana which she then took to a friend's house. Id. at 389, 418-19, 423. At some point during the day,*fn2 Davis asked her cousin to put the gun and its ammunition in the ceiling. Id. at 410, 419-21. At approximately 9:00 p.m., Davis turned herself in to detectives who were waiting outside her apartment. Id. at 390-91.

Davis admitted at trial that she carried the gun with her for at least two weeks prior to the shooting, that during that time the gun was unloaded, that she had fired the gun once in the past, and that she owed money to a drug dealer for marijuana. Id. at 395-97. In exchange for her cooperation with police against Petitioner, Davis pleaded guilty to first degree robbery and received a sentence of three to nine years in prison. Id. at 430-32.

Police obtained a search warrant for 499 Third Street. They recovered a .25 caliber gun and ammunition inside a paper bag from a hatch area in the ceiling of a second floor hallway that led to a crawl space. Trial Tr. at 214, 245, 247, 255, 262. New York State Police Technical Sergeant Charles E. Boone, Jr. testified that the bullet recovered from Cassaro was fired from the .25 caliber gun recovered from 499 Third Street. Id. at 153, 468-70. Boone also testified that the gun had a trigger pull of seven and one-half pounds, which he described as "in the moderate to slightly heavy range" for firearms of its size. Id. at 466-67. Police also recovered Cassaro's wallet from a garbage bag in front of Davis's home.

Id. at 214, 245, 265-68.

B. State Court Proceedings

An Indictment was returned by an Albany County grand jury charging Petitioner with one count of first degree murder (N.Y. PENAL LAW § 125.27(1)(a)(vii)), three counts of second degree murder (N.Y. PENAL LAW §§125.25(1), (2), (3)) and two counts of first degree robbery (N.Y. PENAL LAW §§ 160.15(2), (3)). Dkt. No. 21, Appendix to Reply Brief ("Appx.") at A7-A12.*fn3

The Honorable Larry J. Rosen presided over Petitioner's trial proceedings. A combined Huntley*fn4 /Mapp*fn5 hearing was held on October 5, 1998. See Transcript of Suppression Hearing ("Hearing Tr."), 10/5/98, at 5-233. In a written decision dated August 2, 1999, Judge Rosen ruled that there had been "no error in the police entry into 499 Third Street." Dkt. No. 11, Ex. A (Decision and Order, 8/2/99, Rosen, J.) at 6. The court also found that Petitioner was "not in custody" when he voluntarily "agreed to accompany the police to the police station." Id. The court noted that Petitioner asked that he be handcuffed to "create the illusion that he was in custody", Id. at 6-7 (emphasis in original), and that he did not perceive himself to be in custody under these circumstances. Since Petitioner had been given his Miranda warnings, and knowingly waived them, his written and oral statements were ruled admissible. Id. at 6-7. Finally, the court ruled that Petitioner lacked standing to challenge the admission into evidence of the victim's wallet, and that the gun recovered from 499 Third Street was seized pursuant to a valid search warrant. Id. at 7-8. Petitioner's motions were denied.

A jury trial began on August 9, 1999 and concluded on August 16, 1999. Petitioner called two witnesses to testify in his behalf. Francine Vero testified that Davis called her at approximately 6:00 p.m. on August 1, 1996 and that the two had what started as a "normal conversation." Trial Tr. at 551. Vero testified that Davis told her that she "killed a taxi driver." Id. at 552. After speaking to a priest, Vero reported the conversation to police. Id. at 554-55. James Ruszas, a latent fingerprint examiner for the New York Division of Criminal Justice Services, testified that he compared latent fingerprint lifts taken from Cassaro's cab to Petitioner's and Davis's fingerprints, and none matched either person. Id. at 561-64, 573-74.

The jury convicted Petitioner of first degree murder and first degree robbery. Trial Tr. at 728-29. On September 27, 1999, Petitioner was sentenced to serve life without parole for murder and a concurrent indeterminate term of twelve and one-half to twenty-five years in prison for robbery. Dkt. No. 1 at 2; Resp't Mem. at 8.

On January 17, 2002, the Appellate Division, Third Department, affirmed Petitioner's conviction and sentence. People v. Hansen, 736 N.Y.S.2d 743 (N.Y. App. Div. 2002). The New York Court of Appeals granted leave and affirmed on February 13, 2003. People v. Hansen, 786 N.E.2d 21 (N.Y. 2003).

C. This Action

On May 21, 2004, a petition was filed in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. See Dkt. No. 1. On December 21, 2004, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response, memorandum of law, and relevant state court records in opposition to the petition. See Dkt. Nos. 10-11. On October 23, 2007, ...

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