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Nakwan Nelson v. Philip D. Heath

October 3, 2011

NAKWAN NELSON PETITIONER,
v.
PHILIP D. HEATH, RESPONDENT.



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

MEMORANDUM AND ORDER

Nakwan Nelson, who is currently incarcerated at Sing Sing Correctional Facility, brings this petition, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Kings County Supreme Court, Nelson was found guilty of second degree murder (felony murder), first degree robbery, second degree criminal possession of a weapon, and attempted first degree assault. On March 7, 2008, he was sentenced to an indeterminate prison term of twenty years to life on the murder conviction and lesser concurrent terms on the remaining counts. Nelson now seeks habeas relief from his conviction and sentence. Nelson presents four arguments in support of his petition: (1) the court in which he was tried, convicted and sentenced lacked subject matter jurisdiction because Nelson was not named in the body of the indictment in which he was charged; (2) his trial counsel was ineffective for failing to challenge the validity of the indictment; (3) his appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim; and (4) self-incriminating statements made by Nelson to law enforcement agents were erroneously admitted at trial in violation of Nelson's Fifth Amendment rights. For the reasons stated below, the petition is denied.

BACKGROUND A. The Offense Conduct

The evidence presented at trial established that, on October 6, 2006, Peter Sardis

parked and exited his car at Montauk and Stanley Avenues in Brooklyn. While he was retrieving items from the front passenger seat, Nelson, Robert Austin and Sheron Bullock surrounded Sardis. Bullock pointed a gun at Sardis's head and demanded money. Sardis handed over $900 and then heard Khemraj Bonsi calling out for his assailants to leave him alone. Bullock turned and fired three shots in Bonsi's direction. One struck and killed Bonsi's co-worker, Julio Torres. Nelson and his accomplices ran up Montauk Avenue.

B. Nelson's Statements to Law Enforcement

On November 2, 2006, Nelson was in custody at the New York Police

Department's 81st Precinct in connection with an unrelated matter. While in custody, Nelson made several statements to police offers and to an assistant district attorney concerning his role in the October 6 incident. Prior to trial, Nelson moved to suppress his statements. A suppression hearing was held on January 31, 2008. The court heard testimony from two witnesses, Detectives Christopher Obdyke and Edward McDonough, both members of the 75th Precinct Detective Squad who were investigating Torres's death.

1. The Suppression Hearing Testimony

Obdyke testified that Nelson's name had come up in connection with the Torres

investigation, so when he learned that Nelson was in custody on November 2, 2006, he went to the 81st Precinct to question him. At about 4:00 p.m., Obdyke and a homicide detective, John Christopherson, interviewed Nelson for approximately ten to twelve minutes in an interview room at the 81st Precinct. Although Nelson had not been informed of his Miranda rights, Obdyke asked Nelson if he knew anything about the October 6 incident. Nelson said that he was walking towards his house when he saw two men, one of whom he knew as "Dollar," robbing someone and heard two gunshots. Dollar, who was later identified as Austin, subsequently came to Nelson and told him to keep quiet about what he had seen. After providing this initial statement, Nelson asked Christopherson to leave the room. When he and Obdyke were alone, Nelson revised his account. He admitted he was with Austin and his associate during the robbery but said he was standing across the street when it occurred. At that point, Obdyke ended the interview. He and Chrisopherson drove Nelson to the 75th Precinct.

Obdyke again interviewed Nelson at the 75th Precinct. This second interview lasted from about 5:30 p.m. until about 8:00 p.m., although Obdyke took several breaks to complete other work. Obdyke began the interview by informing Nelson of his Miranda rights. Nelson indicated that he understood each right and agreed to continue the interview begun at the 81st Precinct. Nelson told Obdyke that that on the morning of October 6, 2006, Austin and his associate, later identified as Bullock, came to Nelson's house and asked if he wanted to rob someone. Austin and Nelson walked to the corner of Montauk and Stanely Avenues, while Bullock headed to the same area on a bicycle. When Austin and Nelson arrived at the corner, Austin called Bullock to tell him that the man they were going to rob -- Sardis -- was nearby. Bullock arrived on his bicycle, and when Sardis got out of his car, Bullock put a gun to his head and told him he was being robbed. Austin went through Sardis's pockets and took his money. Nelson claimed that he was standing across the street during the robbery, acting as a lookout. He said he heard someone shout, "Leave him alone," and then heard two shots. After that, he ran. Later that day, Nelson met with Austin, who had taken $500 from Sardis. Austin told him not to talk about what had happened but did not give him any of the money. After Nelson provided this account, Obdyke asked if he would make a written statement. Nelson said he would, and his handwritten statement was produced at the suppression hearing.

Once Nelson had made his written statement, Obdyke asked if he was willing to speak to someone in the office of the District Attorney ("D.A."). Nelson agreed and was taken to the D.A's office by Sergeant Mark McCormack and Detective Edward McDonough. Obdyke traveled separately. During the trip, McDonough told Nelson that an assistant D.A. would record his statement so he would need to be completely truthful. Nelson asked what would happen if he left something out, and McDonough responded that he had better tell Obdyke before the audiotaped interview. Nelson confessed that Austin had taken $900 from Sardis of which he gave Nelson $300. Obdyke was informed of this new detail at approximately 10:30 or 11:00 p.m., once both parties had arrived at the D.A.'s office. Nelson was then read his Miranda rights for a second time and interviewed by an assistant D.A. in Obdyke's presence. The interview was audiotaped, and the tape was played at the suppression hearing.

Obdyke testified that during the course of these interviews, he never made any promises to Nelson in exchange for his statements or used any physical force against him. He never threatened Nelson or saw anyone else threaten him. Nelson was offered food and drink and the opportunity to use the restroom throughout the interviews, which lasted from about 4:00 p.m. on November 2 until about 2:00 a.m. on November 3. He refused all offers of food, saying that his stomach was upset, until 2:00 a.m., when Obdyke took him to McDonald's on the way from the D.A.'s office back to the 75th Precinct. According to Obdyke, Nelson never appeared tired, complained of sleepiness, or fell asleep during the course of the interviews.

2. The Hearing Court's Suppression Rulings

The hearing judge credited the police officers' testimony as "basically" truthful.

Based on that testimony, he suppressed the statements made by Nelson at the 81st Precinct prior to his Miranda rights waiver but allowed the government to introduce at trial all subsequent statements, including Nelson's oral and written statements at the 75th Precinct, his statements in the car on the way from the 75th Precinct to the D.A.'s office and his statements at the D.A.'s office.

With respect to the statements made in the 75th Precinct prior to Nelson's waiver of his Miranda rights, the judge found that Nelson was in custody, and Obdyke knew or should have known that his questions were likely to elicit an incriminating response. Although the statements were voluntary, they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and they were accordingly suppressed.

On the other hand, the hearing judge admitted all of Nelson's subsequent statements because he found that they were made voluntarily after a knowing, intelligent and voluntary waiver of his Miranda rights -- or, in the case of the statements made in the D.A.'s office, after two such waivers. The hearing judge based his conclusion on several factual findings. He found that Nelson was not physically mistreated or otherwise pressured into making his post-Miranda statements. He found no evidence of police misconduct, and no indication that the interrogating officers acted pursuant to a policy of inducing defendants to make pre-Miranda self-incriminating statements, which they would then be committed to after being informed of their rights. The judge also noted that Nelson provided more, and more self-incriminating, details with each statement he provided, and he expressed no reluctance to discuss the events of October 6, 2006. Furthermore, the breaks between interviews, and in particular the time spent driving between locations, provided Nelson with an opportunity to consider his situation and decide whether to provide further details. And while Obdyke conducted the interviews at both the 81st and 75th precincts, he played a minimal role in the interview at the D.A.'s office and was not present when Nelson spoke to McDonough of his own initiative. Therefore, the hearing judge concluded, both of Nelson's waivers were knowing, intelligent and voluntary, and the statements made after each were not obtained in violation of Miranda

C. The Direct Appeals

Nelson appealed his conviction to the Appellate Division, Second Department.

He filed a counseled brief and a supplemental pro se brief. His appellate counsel, who did not represent Nelson at trial, argued that all of Nelson's post-arrest statements should have been suppressed, as all were tainted by Obdyke's pre-Miranda questioning. In his pro se brief, Nelson argued that the indictment was jurisdictionally defective because it did not identify Nelson by name in connection with any of the specific charges, and that the trial court therefore lacked jurisdiction.

On May 4, 2010, the Appellate Division affirmed the trial court's judgment. People v. Nelson, 899 N.Y.S.2d 659 (2d Dep't 2010). With respect to Nelson's counseled argument, the court held that the pre-Miranda statement was not so incriminating in nature that it can be said to have committed the defendant to confessing to the crime, and there is no evidence that the defendant felt so committed by the pre-Miranda statement that he believed himself bound to confess. In any event, the defendant's post-Miranda ...


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