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Michael Carey v. Superintendent Susan A. Connell

January 6, 2012


The opinion of the court was delivered by: Denise Cote, District Judge:


Michael Carey ("Carey"), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction after a jury trial for two counts of sexual abuse in the first degree, one count of course of conduct against a child in the second degree, and one count of endangering the welfare of a child. Carey now asks for habeas relief on four grounds: (1) that his interrogation by the police was coercive, making his confession involuntary, (2) that the district attorney unfairly prejudiced him by vouching for witnesses and evidence during summation, (3) that the trial court erred in disallowing the testimony of Dr. Lazarro, an expert witness who was to testify on the issue of alcohol blackouts, and (4) that the trial court erred in excluding as irrelevant the testimony of Carey's grandmother and half-sister, who were to testify about conversations with the victim that might put her credibility into question, and that of Daniel Rozinsky, who was to testify that Carey did things while drunk that he did not seem to remember afterwards.

Carey also includes a fifth ground for his petition emphasizing the importance of Dr. Lazarro's testimony in showing that Carey's confession was not reliable. Because the issues in this fifth ground are the same as those in grounds one and three, the Court declines to address this fifth ground separately.

This case was referred to Magistrate Judge Lisa Margaret Smith for a report and recommendation ("Report") on June 2, 2010. The Report was issued on August 1, 2011 and recommended that the petition be denied. Carey's objections to the Report were received on September 26, 2011. This Opinion adopts the Report's recommendation that the petition be dismissed.


The facts relevant to this petition are set forth in the Report and summarized here. On January 5, 2007, State Police Investigator Sandra Hall ("Hall") and Village of Goshen Police Department Investigator Richard Buono ("Buono") traveled to Carey's house and attempted to interview him regarding an incident of sexual abuse against Carey's daughter. They asked Carey to come with them to their office to answer some questions and Carey agreed. The officers then drove Carey to their office in their police vehicle, which was unmarked. Carey was not handcuffed nor told he was under arrest.

At the office, the officers escorted Carey into an interview room, gave him a cup of coffee, read him his Miranda rights, and asked Carey to read these rights out loud. Carey then signed a waiver of his Miranda rights, acknowledged that he understood these rights, and agreed to speak with the investigators without an attorney present. Over the course of the subsequent interview, he was given a bathroom break, two cigarette breaks, and water, and was offered food.

Initially, Carey denied that he had sexually abused his daughter, but claimed that he periodically blacked out when drinking and could not remember what he had done. He then corrected and signed a statement, typed by Hall, which stated in part, "My ten year old daughter . . . is a very honest girl," and, "I do not want to believe I did this to her. I just don't know if I did." The statement also advised Carey of his Miranda rights a second time.

After further questioning, Carey admitted to remembering several instances of sexual abuse against his daughter. He then corrected and signed a second statement that recounted details of the abuse, and stated, "I am giving this statement to Investigator Sandra Hall of my own free will. . . . I lied when I said I didn't remember if I touched [my daughter]." This statement advised Carey of his Miranda rights a third time.

While Hall was typing Carey's statements, Carey wrote two letters to his daughter. The second letter stated, among other things, "What I did to you was very wrong and not your fault." After he corrected and signed his second statement, Carey was arrested.

Before trial, Carey made a motion to suppress the statements he made to Hall and Buono. The court held a hearing on this issue on May 4 and 7, 2007, and issued a written opinion on June 20, 2007 denying Carey's motion to suppress in its entirety and ruling the statements admissible. The court held, inter alia, "Under the totality of the circumstances . . . the People have met their burden of proving beyond a reasonable doubt that defendant's statements were voluntary."

At trial, the People presented the testimony of the daughter, her mother, Hall, and Buono, as well as the written statements and letters from the January 5, 2007 interview. Carey testified in his own defense. The defense also presented a witness who was an expert in police interrogation, a health services administrator who produced and identified Carey's medical records from the Orange County Jail, and a caseworker at the Orange County Jail who identified records indicating that Carey had been referred to crisis intervention for depression.

The defense sought to present additional witness testimony from Dr. Lazzaro, an expert witness on the issue of alcohol blackouts, Daniel Rozinsky, who was to testify on Carey's memory of his behavior when drunk, and Carey's grandmother and half sister, who were to testify on issues related to the victim's credibility. The Court, however, determined this testimony to be inadmissible.

During summation, the prosecutor stated that the victim's testimony "had such a loud ring of truth that it was deafening in this courtroom." He also made comments about the neatness of Carey's ...

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