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Garcia v. Burge

January 15, 2009

LUIS GARCIA, PETITIONER,
v.
JOHN BURGE, RESPONDENT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

Petitioner Luis Garcia ("Petitioner" or "Garcia") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the First Degree and four counts of Intentional Murder in the Second Degree following a jury trial in Supreme Court, Bronx County.

Petitioner claims that: (1) his Fourth Amendment rights were violated because the police arrested him without probable cause or a warrant and searched his apartment without adequate consent; (2) his Due Process and Confrontation Clause Rights were violated by the admission of a hearsay statement at trial; (3) his rights under New York's Criminal Procedure Law ("CPL") were violated by the suspension of jury deliberations for more than twenty-four hours; and (4) his sentence is unduly harsh and excessive.

On February 28, 2008, Magistrate Judge Frank Maas issued a Report and Recommendation ("R&R"), in which he recommended that the petition be denied on all counts and that a certificate of appealability should not issue because Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Petitioner made timely objections to the R&R. Upon this Court's careful review of all the submissions, the petition is denied and the R&R is adopted.

I. BACKGROUND

Petitioner's conviction arose from his role in murders in the Bronx on the night of March 2, 2000. The case was tried before Justice Martin Marcus in Supreme Court, Bronx County, who on April 4, 2003 sentenced Petitioner to terms of imprisonment that added up to life imprisonment without parole.

The Five Murders

Magistrate Judge Maas found that the evidence at trial permitted a reasonable juror to find that Petitioner and an accomplice*fn1 murdered five people on March 2, 2000: Eduardo Santos ("Eduardo"), Ishmael Santos ("Ishmael"), Irvin Aquilar ("Irvin"), Denise Santos ("Denise"), and Evelyn Santos ("Evelyn"). R&R 2-3. The bodies of Eduardo, Ishmael (Eduardo's fourteen-year old nephew), and Irvin (husband of Denise Santos) were found in the apartment of Eduardo Santos. Trial Transcript ("Tr.") 79, 112-14. Denise's body was found a few blocks away, where she and Irvin had shared a residence. Id. 488, 517-18. Finally, Evelyn's body was discovered in the elevator of her apartment building. Id. 441-42. A ballistics expert concluded that a single SigSauer nine millimeter pistol fired all of the bullets that were recovered.*fn2 R&R 4 (citing Tr. 1554-63, 1574, 1577-83, 1586, 1589-94); Resp't's Statement of Law 7.

The Investigation and Arrests

In late 1998 or early 1999, Eduardo loaned a large sum of money to Petitioner. R&R 4; Tr. 763. Petitioner failed to repay the loan despite Eduardo's requests. Tr. 670-71, 768-70. Petitioner and Pizarro were known to have been at the home of Denise and Irvin on March 2, 2000, and thus the investigation focused on them. R&R 4; Tr. 608-09.

Several witnesses testified that Petitioner drove a Pontiac Firebird with Florida license plates. Resp't's Statement of Law 5. The NYPD learned that Petitioner lived in Miami with Guillermina Mejia ("Mejia"), the owner of a Pontiac Firebird with Florida registration DH913E. The NYPD issued a "be-on-the-lookout" ("BOLO") alert to law enforcement for the Pontiac Firebird. Id. 5. Later, after Evelyn's son identified a photograph of Petitioner as Evelyn's ex-boyfriend, a second BOLO was issued for Petitioner. Id. Additionally, Miami detectives also learned that Mejia was a licensed pistol owner. Id.

On March 4, 2000, a Florida police officer witnessed Petitioner and Pizarro cleaning the interior of the Firebird in front of Petitioner's Miami residence. Tr. 884-84, 889-902. When they finished, Pizzaro threw some clothing into a nearby dumpster. Id. When Petitioner and Pizzaro started to drive away, the police stopped them and saw jewelry in the front seat of the car and noticed four of Denise's credit cards stuck to Petitioner's wallet when he produced his driver's license. Id. 904, 910, 924-27. The police also found in Petitioner's wallet a bill of sale for the Sig- Sauer gun and a paper with New York City police scanner codes and precinct numbers on it. Id. 1290-92, 1522-23. After the officers arrested Petitioner and Pizarro, they found more of the victim's jewelry on Pizzaro's person. Id. 1297-1303.

Florida police officers searched Mejia and Petitioner's apartment. See R&R 6 (citing Tr. 918, 994-96). This search resulted in the seizure of bullets, jewelry, and cash. Tr. 1010-15. The detectives noticed plastic bags containing metal pieces on the stove, but stopped the search when Mejia became uncooperative. Id. 1086-88. The police subsequently obtained search warrants for Petitioner's car and apartment. R&R 6. During the ensuing search, the police examined the plastic bags on the stove and discovered cut-up pieces of the nine millimeter Sig-Sauer pistol that was used in the murders. Tr. 1344-45, 1354-57. The police also discovered a DeWalt saw and grinder along with a receipt for its purchase dated March 4, 2000, a safe from Irvin's house that had been cut open and hidden inside a bag from a laundromat in the Bronx that Denise and Irvin had frequented, and some of the victims' jewelry including a necklace that was stained with blood that matched Denise's blood to the exclusion of one trillion individuals. Id. 684-85, 1312-14, 1317-19, 1363, 1371, 1382, 1634-35.

Petitioner's Defense

Petitioner was the sole defense witness. R&R 7. He testified that he and Pizarro drove to New York in the Firebird so that Pizzaro could facilitate a drug deal. Tr. 1830, 1833, 2136-37. Pizzaro convinced Petitioner to bring along his nine millimeter pistol, his police scanner, and the radio frequency codes for several Bronx police precincts. Id. 1833-38. After Petitioner and Pizzaro arrived in New York, Pizarro obtained two kilos of cocaine from his source, which he intended to sell to Irvin for about $50,000. Id. 1854-57. Petitioner testified that when he and Pizzaro went to Eduardo's apartment to complete the transaction, while he was parking the car, Pizzaro entered the apartment with Irvin and Eduardo, but before Petitioner could enter the apartment, Pizzaro rushed out of the building, saying, "Let's get out of here." Id. 1881-88. Pizzaro explained that the drug deal went bad and he had shot Eduardo and Irvin. Id. 1887-88. Petitioner further testified that Pizzaro threatened to kill him unless he followed Pizzaro's directions, which included returning to Eduardo's apartment to retrieve the drugs that Pizarro had accidentally left behind. Id. 1888-91. Once inside, Petitioner discovered that Pizarro had also killed Ishmael, and he watched as Pizarro stabbed Irvin, who had appeared to have been dead before the attack began. Id. 1892-96. Later, according to Petitioner, Pizarro forced Petitioner to take him to Denise's home and Evelyn's apartment, where Pizarro murdered them. Id. 1929-30, 1946-47. Petitioner claimed that he did not attempt to stop Pizarro or try to escape because he was afraid Pizarro would kill him. Id. 1930, 1947.

Pretrial Proceedings

Justice Donnino held a combined Mapp-Dunaway-Huntley hearing on various dates between May 16 and August 1, 2001. R&R 8 (citing Ex. 2 to Resp't's Br. on Appeal ("Resp't's Br.") 3 n.2). At the conclusion of the hearing, which resulted in a transcript of over 3,600 pages, Justice Donnino denied Petitioner's Fourth Amendment claims but suppressed certain statements that Petitioner made after his right to counsel attached. Id. at 8. Subsequently, Justice Marcus granted the People's motion in limine to introduce into evidence several statements that Evelyn had made to her friend Elizabeth Caraballo ("Caraballo") during a telephone conversation on the day of the murders, pursuant to the hearsay exception recognized in Mutual Life Insurance Company of New York v. Hillmon, 145 U.S. 285 (1892), for statements of future intent. Caraballo testified that Evelyn had called her to cancel their plans to meet that evening because she intended to go out with Petitioner instead. See Resp't's Br. 9. Specifically, Caraballo testified that Evelyn called me to tell me how happy she was because Eduardo had . . . told her to go over to his-to meet him at his Radcliffe house . . . . When she got there, Eduardo wasn't there, so she ...


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