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Stephen Fox v. Norman R. Bezio

March 7, 2011

STEPHEN FOX, PETITIONER,
v.
NORMAN R. BEZIO, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

# 06-A-0135

Stephen Fox petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fox challenges his December 2005 convictions in New York State Supreme Court, Richmond County, of two counts of murder in the second degree (intentional and felony murder), two counts of robbery in the first degree, arson in the third degree, grand larceny in the third degree, criminal possession of a weapon in the third degree, and criminal possession of stolen property. Appearing pro se, Fox seeks habeas relief on the grounds that he was denied a fair trial and received ineffective assistance of counsel. Oral argument was heard on January 28, 2011, at which Fox appeared via videoconference from his place of incarceration. For the reasons stated below, Fox's petition is denied.

BACKGROUND A. The Offense Conduct

The evidence at trial established that Fox bludgeoned William Reich to death as he slept on his couch on the night of September 25, 2004. Fox worked for Reich installing carpets. The night of the murder, Fox had gone to visit Reich at his house in Staten Island, and the two men got into an altercation when Fox asked Reich for money and Reich declined. Reich had lent money to Fox in the past and had even purchased marijuana from him, but their relationship had soured in the months preceding Reich's murder, especially after Fox ripped off Reich in a drug transaction. When the disagreement escalated on the night of September 25, Reich told Fox he wanted him out of his house and that he was going to call the police. Fox then began beating Reich with a pipe, striking him on the head and neck approximately four times, which resulted in fractures to Reich's jaw, skull and spine, among other injuries. Blood spattered onto Fox's clothes. Fox then ransacked Reich's house, took the keys to Reich's cherished GMC Envoy truck and fled the scene in the truck. While Reich's death was not immediate, he died soon after the beating, still lying on the couch. His employee and friend, Eric Carew, discovered him dead in his house the next day after Reich had failed to show up for a carpeting job that morning.

The police were able to track Reich's vehicle via its OnStar tracking device, and upon getting a call from OnStar reporting the location of the vehicle, they intercepted it at approximately 3:15 AM on September 27, 2004 at the Berry Houses on Staten Island. After watching the vehicle for a few minutes, Detective Frank Viani, Detective Michael Kenny and Officer Michael Palm observed Fox approach the vehicle, unlock it, open the rear passenger door, wait for approximately 20 seconds, close the door and begin to walk away from the vehicle. Approximately ten seconds later, smoke started to emanate from the vehicle, revealing that it had caught fire. The detectives then exited their car, called out Fox's name and chased him as he ran away from them. They ultimately apprehended Fox at gunpoint in a neighborhood baseball park, and as they handcuffed him, he blurted out, "the niggers did it." The detectives then drove Fox to their stationhouse.

B. Procedural History

1. The Suppression Hearing

Fox was charged with one count of intentional second-degree murder, N.Y. Penal Law § 125.25(1), one count of felony murder, id. § 125.25(3), two counts of robbery in the first degree, id. § 160.15(1) & (3), grand larceny in the third and fourth degrees, id. §§ 155.35(1) & 155.30(8), criminal possession of a weapon in the third degree, id. § 265.02(1), criminal possession of stolen property in the third, fourth and fifth degrees, id. §§ 165.50, 165.45(5) & 165.40, and arson in the third degree, id. § 150.10(1). On June 2, 2005, Justice Stephen Rooney of the New York State Supreme Court, Richmond County held a Wade/Huntley*fn1 hearing upon Fox's omnibus motion to suppress his statements to the police and Carew's identification of him by photo array.

At the hearing, Detectives Viani and Kenny testified that they arrived at the Berry Houses at approximately 3:15 AM on September 27, 2004 after receiving a call from OnStar placing Reich's vehicle at that location. They found the vehicle there, and within moments saw Fox approach it and set fire to it. Fox then ran from the detectives, but they chased him and eventually stopped him at gunpoint. Viani approached Fox, placed him in handcuffs without asking him any questions, and Fox blurted out, "I didn't do anything, the niggers did it." Viani searched Fox and recovered some change, candy and a book of matches. Tr. at 6-11, 18-19, 22, 25-26, 37.*fn2

Kenny further testified that he drove Fox to the 122nd Precinct stationhouse at approximately 3:30 AM, placed Fox into an interview room there and handcuffed one of his wrists to a bar affixed to the wall. At 5:45 AM, Kenny read Fox his Miranda warnings. Kenny read them from the inside cover of a blank police memo book on which they were printed, since he could not at that time locate the more commonly used Miranda police form. Fox stated that he understood and waived each right, although he interrupted Kenny at one point to tell him he did not have to continue because Fox had been through all of this before. Kenny told Fox the warnings were required and continued reading them and eliciting a response from Fox after each right. Fox also stated that he had not done anything and had nothing to hide, and therefore had "no problem" with speaking to Kenny. Kenny did not require Fox to sign any forms acknowledging he understood and had waived his rights. Id. at 56-57, 80.

Beginning at approximately 6:00 AM, Fox gave Kenny an account of his whereabouts over the preceding few days, stating that he was at Reich's house the night of the murder but denying that he knew about the murder or had set fire to Reich's car. From 7:00 AM until 1:45 PM, Kenny came in and out of the interview room, attempting to verify parts of Fox's story and checking to see if he was all right. At approximately 1:45 PM, Kenny entered the room with Polaroid photographs taken of Reich's body and Kenny placed them in front of Fox, asking him how he could do that to a friend. Fox reacted violently by standing up abruptly, throwing a chair, flipping over the table and heatedly asking Kenny, "how could you show [those pictures] to me?" After leaving the room and giving Fox time to cool off, Kenny and a lieutenant returned at 2:00 PM, and Kenny recommenced formal questioning of Fox without rereading him his Miranda rights. There were some inconsistencies*fn3 between Fox's statement at this time and his earlier statement, but he reaffirmed that he had nothing to do with either Reich's murder or the arson. Id. at 62-65, 95-97.

On September 6, 2005, Justice Rooney issued a written decision denying Fox's motion to suppress. With respect to the voluntariness of Fox's post-arrest statements, Justice Rooney found as follows: (1) Fox's statement to Detective Viani at the baseball field was spontaneous and not the product of police interrogation; and (2) Fox's statements to Detective Kenny at the police precinct, although "clearly the product of custodial interrogation," were voluntary because "Miranda warnings were administered prior to any interrogation, and the defendant knowingly, intelligently and voluntarily waived his rights before making statements." Justice Rooney further noted that Kenny's display of photographs of Reich to Fox was not a coercive tactic, and he found no evidence of improper police conduct or anything to "suggest that the statements were evoked by threats, coercion or any severe deprivation of the necessities of life."*fn4

2. The Trial and Massiah-Cardona Hearing

Fox proceeded to a jury trial before Justice Rooney. Among the People's witnesses were Katherine Sadecki and Christopher Franklin, both of whom met Fox in the state penal system after having been arrested in their own cases. They both testified at trial to admissions Fox made to them regarding his involvement in Reich's murder and the burning of Reich's car. Before Franklin testified, the court held a Massiah-Cardona hearing*fn5 to determine whether he had acted as an agent of the state when he spoke to Fox in the holding pens of the state courthouse. See Tr. at 869-906. At the conclusion of the hearing, the court found that the Richmond Country District Attorney was nothing more than a passive recipient of the information about Fox that Franklin provided to him in a letter, and that there was no indication that the District Attorney had promised Franklin any benefit in his pending assault case for having come forward with the information about Fox. Id. at 906. The court therefore found that Franklin had not acted as an agent of the state and permitted him to testify at trial. Id. at 906-07.

Franklin testified at trial that while he and Fox were waiting in the holding pens of the state courthouse on December 9, 2004 to appear for their respective plea proceedings, Fox "said that he was charged for murder, and then he basically broke down and . . . [said] how he accidentally basically killed the guy," a former employer. Id. at 922. Franklin testified that Fox's explanation for the murder was that he "was forced into a situation where . . . he was trying to get money from the man . . . , the guy wanted him out of the house and things got out of hand," and Fox "accidentally killed him," using a "pipe." Id. at 922-23. Franklin also testified that Fox said witnesses saw him "trying to burn the vehicle," and that Fox's reason for burning the truck was that he wanted "to stage a scene, to make it seem like something happened to the guy, trying to stage a murder." Id. at 926.

The court did not hold a Massiah-Cardona hearing with respect to Katherine Sadecki because defense counsel waived such a hearing after reviewing Sadecki's arrest record, rap sheet and other documents. Tr. at 540. Sadecki testified at trial that she met Fox on September 28, 2004 on a bus to Rikers Island, and that he tried to convince her to show him her breasts by saying: "I'm going -- I'm up in here for a murder charge doing 25 to life. I'm never going to see a woman again. You really need to help me out." Id. at 727. Sadecki testified that she then told Fox she didn't believe him, to which he responded by pulling out a newspaper article about him with the headline "Hi-Tech Trackdown," showing it to Sadecki and saying, "[l]ook, look, this is me," and then telling her that he made a bomb, put it under his boss's car and "blew him up." Id. at 728-29, 785; see also id. at 780 ("He said that he murdered his boss.").

On October 31, 2005, the jury found Fox guilty of two counts of second-degree murder, two counts of robbery in the first degree, grand larceny in the third degree, criminal possession of a weapon in the third degree, criminal possession of ...


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