The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Dexter Mastowski ("Petitioner"), through counsel,*fn1 has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered August 19, 2003, in New York State, County Court, Ontario County (Hon. Craig J. Doran), convicting him, after a jury trial, of Assault in the First Degree (N.Y. Penal Law ("Penal Law") § 120.10(3) (depraved indifference assault). Petitioner was sentenced to a determinate prison term of seventeen years, plus five years of post-release supervision.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
An Ontario County Grand Jury indicted Petitioner with one count of Assault in the First Degree (depraved indifference assault). The charges arose from an incident that occurred on October 12, 2002, in which Petitioner violently shook his two-anda-half month old daughter Emily ("Emily" or "the victim"), causing traumatic injuries to her.
On October 12, 2002, Scott Upchurch, the Chief of Police in Clifton Springs, New York, was informed of a serious physical injury to a two-month-old infant. The information was received from the Child Abuse Hotline, and Chief Upchurch was informed that the child was located at Strong Memorial Hospital. The following day, Chief Upchurch went to the hospital to investigate. Chief Upchurch spoke separately with Petitioner alone in a waiting room inside the hospital. Hr'g Mins. [H.M.] 4-5. Petitioner was not overly responsive and gave only "yes" or "no" answers. H.M. 5. Chief Upchurch asked Petitioner to write down the events leading up to Emily's admission to the hospital, and Petitioner voluntarily agreed to do so. H.M. 6.
Petitioner then agreed to give a second written statement after being advised of his Miranda warnings. H.M. 6-9. At no time during the interview was Petitioner told that he was under arrest, nor was he verbally or physically threatened in any way. H.M. 9--10. After Petitioner completed the second statement, they took a break from questioning. When Chief Upchurch asked to speak with Petitioner after the break, Petitioner informed Chief Upchurch that he had spoken with his brother and was advised to seek counsel. H.M. 11. At that point, Chief Upchurch stopped talking to Petitioner. H.M. 12.
David Smith, of the Ontario County Sheriff's Department, testified that he was Petitioner's uncle, but because the two were close in age, they referred to each as brothers. H.M. 18-19. Smith called Petitioner at Strong Memorial Hospital on the telephone on October 13, 2002 after Petitioner had spoken with Chief Upchurch. H.M. 21. Smith, aware of allegations of shaken baby syndrome, told Petitioner not to speak with the police and to hire an attorney. H.M. 23.
Also on October 12, 2002, after Petitioner spoke with Chief Upchurch, Janice Mangini ("Mangini"), a case worker for the Ontario County Department of Social Services, spoke with Petitioner "in one of the interview rooms at the hospital on the same floor that the baby was in" regarding Emily's injuries. H.M. 37-38. Petitioner never indicated that he was unwilling to speak with Mangini. H.M. 44. On October 15, 2002, Alisha Testa ("Testa"), also of the Ontario County Department of Social Services, was assigned to the case and spoke with Petitioner and his wife at Strong Memorial Hospital. H.M. 51-52.
Petitioner testified that he spoke to Chief Upchurch in a locked interview room and that Upchurch told Petitioner that if he admitted doing harm to Emily, she would be able to get better medical care. H.M. 75-76. Petitioner also testified that Upchurch told him that if he gave a statement, a court would be more lenient with him. H.M. 76. Petitioner further stated that Chief Upchurch did not advise him of his Miranda rights until he had written both of his statements and Upchurch described the warnings as legal "mumbo jumbo." H.M. 78.
3. The Suppression Decision
The hearing court held that Petitioner was not in custody when he spoke with Chief Upchurch and that the questions asked were investigatory rather than accusatory. The hearing court found that Petitioner's written statements were admissible. The hearing court also held that the conversation between Petitioner and Deputy Smith was personal and not the result of police interrogation. Regardless, the hearing court held that Petitioner was not in custody because the conversation took place over the phone. Accordingly, the court denied Petitioner's request to suppress his statements to Deputy Smith. See Resp't Ex. A.
The hearing court also determined that the statements Petitioner made to caseworkers Mangini and Testa were admissible because they were voluntarily made and the child protective service case workers were not law enforcement officials. See Resp't Ex. A.
On October 12, 2002, registered nurse Barbara Mellor-Conley, Dr. Katherine O'Hanlon, and Dr. Laura Kierston Church were working in the emergency room at FF Thompson Hospital in Canandaigua, New York. Trial Trans. [T.T.] 341-342, 371, 480-482. At around 2:00 p.m., Petitioner and his wife brought in their two-month-old daughter, Emily. The baby appeared to have either a head injury or a neurological problem and was pale and bluish. The baby's eyes were both deviated to the right and her right arm and leg were stiff. T.T. 343-344, 351, 372-373, 482, 486. The soft spot on Emily's head was bulging, indicating brain swelling or bleeding. T.T. 487. Emily was given oxygen and her natural color began to return. T.T. 349-350. She was then intubated, and nine minutes later she went into cardiac arrest. T.T. 354. After thirty seconds of chest compressions, Emily's heart began to beat again. T.T. 355.
Nurse Mellor-Conley and Dr. O'Hanlon asked Petitioner if anything had happened to the baby or if Petitioner had shaken the baby and Petitioner said "no." T.T. 357, 381-384. Emily was then airlifted to Strong Memorial Hospital in Rochester, New York. T.T. 358, 377-378. Nurse Mellor-Conley then called the New York State Child Abuse Hotline and reported Emily's injuries. T.T. 358.
Later in the afternoon, Drs. Heidi Connelly and Karen Powers, who specialized in pediatric intensive care at Strong Memorial Hospital, began to treat Emily. In addition to the previously noted conditions, the doctors also noted that Emily's eyes had massive retinal hemmorrhages. T.T. 581-583, 586, 644, 647-648. An initial CAT scan revealed that there was severe swelling in Emily's brain. A later scan showed that the swelling had subsided, but there was a significant subdural hematoma composed of fresh blood. T.T. 644, 674-675.
Again, both Petitioner and his wife denied knowing what had caused Emily's injuries. With the exception of some vomiting after receiving her first vaccines two weeks earlier, Emily's parents described Emily as a healthy and normal infant. T.T. 587, 595-596, 608, 648-649, 683-684. Dr. Powers called Emily's regular pediatrician, Dr. Kristen Franks-Bissell, for a medical history. According to Dr. Franks-Bissell, Emily did not have any medical problems and appeared to be a normal, healthy baby. T.T. 438-439. Dr. Franks-Bissell gave Emily her vaccinations in late September. T.T. 485. On October 2, 2002, Petitioner called Dr. Franks-Bissell because Emily was vomiting. T.T. 449-450. Petitioner was directed to monitor Emily and call back if the condition did not improve. T.T. 451.
Drs. Powers and Connelly performed numerous tests on Emily while she was at Strong Memorial Hospital to rule out potential causes for her condition. T.T. 582, 586, 589-590, 643-644. They were able to rule out metabolic and blood disorders, asphyxia, infectious diseases and viruses, and congenital defects. T.T. 585-586, 597-598, 625, 650-651, 653, 660, 693-94. Having ruled out these potential causes, the doctors concluded that Emily had been violently shaken, causing massive retinal hemorrhages, severe swelling of her brain, and a massive subdural hematoma that resulted in severe neurological injury. T.T. 581-583, 598-602, 615, 623-624, 626, 648-649, 651, 653, 656-57. Dr. Connelly also reported the situation to Child Protective Services. T.T. 596-598.
The following day, caseworker Mangini and Chief Upchurch went to Strong Memorial to investigate the reports of child abuse. T.T. 496-497, 560. At about noon, Chief Upchurch spoke to Petitioner alone in a conference room in the pediatric care unit. Chief Upchurch asked Petitioner to write down what had happened on October 12, 2002, prior to bringing Emily to the hospital. T.T. 498-500, 516-517. Petitioner wrote that in the morning Emily had been fussy after her feeding and that he had walked around with her, bouncing her up and down in an effort to calm her down. T.T. 503. Petitioner wrote that he was frustrated and "not realizing it" had bounced Emily "a little more than necessary." T.T. 503-504. Petitioner wrote that he was "unknowingly bouncing [Emily] too hard" and that when she woke up later, she was not very responsive so he and his wife called the doctor and brought Emily to the hospital. T.T. 504.
After Petitioner completed his written statement, Chief Upchurch asked him if he would give another written statement to clarify some of the information he had given. T.T. 504, 517. Petitioner was read his Miranda rights and agreed to give a second written statement. T.T. 504-507. Petitioner then confirmed that he had "bounced" Emily "very hard" at around 9:00 a.m. and that he knew "for sure" that it was the cause of Emily's injuries. T.T. 509-510.
Caseworker Mangini spoke with Petitioner next and again admitted that he had roughly bounced Emily. T.T. 562. Petitioner stated that he was frustrated and just wanted Emily to stop fussing and he "unintentionally bounced her too hard." T.T. 563. When Emily finally calmed down, he put her in her bassinet and waited for his wife to come home. When he and his wife noticed that Emily's pupils were dilated, they sought medical attention. T.T. 564.
Smith testified that he was Petitioner's uncle, but the two were close in age and raised in the same household as brothers. Deputy Smith heard about Petitioner's situation and called the hospital on October 13, 2002. T.T. 521-526. Smith told Petitioner not to speak to the police any further and to hire a lawyer. T.T. 528. Petitioner told Smith that he had told Chief Upchurch that he had bounced Emily. Deputy Smith asked Petitioner whether he had gotten frustrated and shook Emily "hard," to which Petitioner responded, "[t]hat's what happened." T.T. 529, 534, 536.
Two days later, on October 15, 2002, caseworker Testa went to the hospital to speak with Petitioner and his wife. T.T. 400-409. Petitioner stated that he was primarily in charge of caring for the children over the weekend preceding this incident and that, in general, he was the primary caregiver. T.T. 414-415. Petitioner told Testa that he thought Emily's condition could have been caused by her being hit in the head with the spinning mobile on her bassinet. T.T. 412-413. Petitioner also told Testa that a nurse suggested that Emily might have had viral meningitis. T.T. 409. Testa was in the room when Dr. Lenane told Petitioner that Emily's injuries were not caused by something falling on her, but rather that Emily had suffered severe trauma. T.T. 417-418. Testa overheard Petitioner tell Dr. Lenane that on October 11, 2002, Emily was not eating well and was sleepy. The following day, Petitioner stated that Emily had to be awakened in the morning to eat, which was unusual. T.T. 421. Later that same morning, Petitioner stated that Emily began to get fussy and in the afternoon, when Petitioner went to get Emily dressed and ready, he noticed something was wrong and she was not acting like herself. T.T. 423. Petitioner then called the doctor, and Petitioner and his wife took Emily to the hospital. T.T. 424.
The following day on October 16, 2002, Testa returned to the hospital and encountered Petitioner in the pediatric care unit. Petitioner told Testa that the hospital staff no longer believed that Emily suffered shaken baby syndrome, but rather that she may have turned her head on a pillow and suffocated. T.T. 425-426.
When Emily left Strong Memorial Hospital, she was in a vegetative state and had minimal brain activity. T.T. 662-663. On July 18, 2003, only weeks before trial, Emily was being treated for long-term care at Monroe Community Hospital. T.T. 662, 704. State Police Investigator Christopher Baldwin visited Emily and found her sitting in a stroller-like wheelchair. T.T. 704. Investigator Baldwin testified that Emily's extremities were tightened and her hands were clenched. She did not appear conscious or responsive. T.T. 704-705.
Petitioner and his wife both testified that on September 27, 2002, they took Emily to the doctor for her two month check-up. At that time, Emily received several vaccinations. T.T. 730, 920-921. Two days later, Emily began vomiting and not acting like her normal self. T.T. 730, 922-923. A couple of days later, Petitioner called the doctor and was told to monitor Emily and call back if the symptoms worsened. T.T. 924.
On October 11, 2002, Kristi went to work and returned home around 4:00 p.m. When Kristi arrived home, Emily was asleep. Kristi then went out with a friend at 5:00 p.m. and did not return until 10 or 11:00 p.m. T.T. 735-736, 930-931. Petitioner testified that he went to sleep at 9:30 or 10:00 p.m., and slept through the night. T.T. 931. The following morning Kristi left for work at 7:00 a.m. T.T. 736, 737, 932.
During the day, Petitioner tried to feed Emily, but she only consumed about half her formula. Petitioner testified that she appeared uncomfortable and he tried to soothe her by carrying her around, rocking her, swaddling her, and playing music. Nothing seemed to comfort Emily and she continued to "whimper." T.T. 934-936. Eventually, Emily quieted down. T.T. 938.
Kristi returned from work at around noon and she discovered that Emily was stiff and her eyes were dilated and fixed in one direction. T.T. 738-740, 938-939. Petitioner called the doctor and they then rushed Emily to the hospital. T.T. 739-740, 940. Petitioner admitted making the written statements to Officer Upchurch, but stated that he was confused and felt pressured by the situation. T.T. 955-956. Petitioner denied shaking Emily or otherwise causing her injuries. T.T. 967.
Eugene Buttram ("Buttram"), a doctor of family and environmental medicine at the Woodland Healing Research Center in Quakertown, Pennsylvania, testified that Emily could have suffered a reaction to the vaccinations that she received, which may have caused her brain to suffer hemorrhagic encephalitis. T.T. 829, 835. As a result, Emily's brain could have swelled and caused bleeding. T.T. 830. Buttram explained that the theory was "virtually unexplored," but dealt with vitamin C deficiencies. T.T. 831-832. Buttram admitted, on cross-examination, he was not board-certified in any field and that he had not reviewed any of Emily's x-rays, MRIs, or CAT scans. T.T. 852-853. On cross-examination, Buttram also admitted that many of his theories had not been proven in scientific studies and most were rebuked by respected medical journals. T.T. 870-892. Some of Buttram's practices, such as Chelation therapy, had been rebuked by FDA Consumer Magazine as one of the top ten health frauds in America. T.T. 845-846. In the mid-1990s, Buttram was charged by the United States Attorney's Office for fraudulently billing Medicare patients. He paid over $50,000 in restitution and a $10,000 fine. T.T. 849.
On August 1, 2003, Petitioner was found guilty as charged and subsequently sentenced to a determinate term of seventeen years imprisonment, to be followed by five years of post-release supervision. T.T. 1155-57; Sentencing Mins. [S.M.] 20.
D. Petitioner's Direct Appeal
On February 3, 2006, the Appellate Division, Fourth Department unanimously affirmed Petitioner's judgment of conviction, and leave to appeal was denied. People v. Mastowski, 26 A.D.3d 744 (4th Dep't 2006) (Resp't Ex. D); lv. denied, 6 N.Y.3d 850 (2006) (Resp't Ex. F). On June 7, 2006, Petitioner submitted a pro se ...