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Gregory Borcyk v. John Lempke

April 13, 2012


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Presently pending before the Court is the pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Gregory Borcyk ("Petitioner" or "Borcyk"), who is incarcerated pursuant to a judgment of conviction entered on July 6, 2005, in Monroe County Court, on one count of second degree (intentional) murder.

II. Factual Background and Procedural History

A. The Crime and Petitioner's Arrest

On October 26, 2002, in the Town of Greece, New York, the naked corpse of Maria Ortiz ("Ortiz") was found on the side of Ling Road by a passing motorist. During their investigation, police learned that Ortiz was an addict who sold drugs from her home and prostituted herself to obtain drugs.

After submitting a sample of semen taken from Ortiz's vagina to a national DNA database, the authorities received notification in December 2004, that it was a positive match to Borcyk, a prior Federal felony offender. At the time of the murder, Borcyk was living about seven-tenths of a mile from the location where Ortiz's body was found.

Borcyk subsequently was questioned by the police and admitted to having a drug habit and soliciting sex with prostitutes in the past. However, he vehemently denied knowing Ortiz. When confronted with evidence that DNA matching his genetic profile was found on Ortiz's body, Borcyk maintained that he had never met Ortiz and had never had sexual relations with her. Borcyk eventually was arrested and charged with second degree (intentional) murder.

B. The Trial

1. The Discovery of Ortiz's Body and the Cause of Death

Carmen Benitez ("Benitez"), Ortiz's sister, testified that she last saw Ortiz alive on October 24, 2002. Ortiz was wearing blue jeans and a yellow t-shirt, which were found in a garbage can outside of her apartment. Susan Casper ("Casper") testified that as she was driving on Ling Road near the intersection of Kirkwood Road on October 26, 2002, she noticed a woman's naked body in a wooded area. The police officers who responded to the crime scene found no footprints or drag-marks near Ortiz's body.

Dr. Scott LaPoint ("Dr. LaPoint"), a deputy medical examiner with Monroe County, conducted the autopsy of Ortiz. He testified the cause of death was strangulation, and that it probably was manually done. Dr. LaPoint testified that Ortiz had not died of a drug overdose, notwithstanding the cocktail of many drugs--prescription, non-prescription, and illegal--found in her system.

In cases of manual strangulation, Dr. LaPoint explained, defense wounds are commonly found on the victim's neck, resulting from the victim attempting to remove the assailant's hands. On Ortiz's neck, Dr. LaPoint noticed abrasions and scratch marks consistent with the type of self-defense wounds typically seen in cases of manual strangulation. Dr. LaPoint could not testify with certainty as to what caused them, although they appeared to have occurred while Ortiz was alive. He found no evidence of forcible rape or other sexual trauma.

2. Borcyk's Statements

Sergeant Steven Chatterton ("Chatterton") of the Greece Police Department testified that on December 19, 2004, he met with Borcyk, who agreed to speak with him at his mother's home at 140 El Rancho Drive. Borcyk's driver's license indicated a previous residence of 4696 Dewey Avenue, which was about seven-tenths of a mile from where Ortiz's body was discovered.

Upon being a shown a photograph of Ortiz, Borcyk said she did not look familiar and that he did not know her. However, he indicated that a photo of Reinaldo Torres ("Torres"), Ortiz's then-boyfriend, looked familiar. Borcyk admitted to having a drug problem and still going on binges occasionally. He also admitted to having had sex with prostitutes in the 1990s but claimed he had not done so since that time. He reiterated that he did not know Ortiz and had never purchased drugs at Ortiz's apartment. When informed that she had been murdered, Borcyk sat back in his chair and said, "'Oh, she was murdered?'". T.378.

The next day, the police stopped Borcyk's truck and asked him to come to the station with them. Borcyk agreed. After he was advised of his Miranda warnings, Borcyk was shown new photographs of Ortiz and, again, he denied knowing her. When he was again told that Ortiz had been murdered, he had the same reaction as he had the day before: He leaned back and said, "'She was murdered?' Like he was surprised." T. 386.

The officers told Borcyk that he had evidence linking him to the incident, and he repeated that he had never met her. When he was informed that there was DNA linking him to the crime, Borcyk adhered to his denials. Upon being informed that Ortiz had been discovered seven-tenths of a mile from his residence at the time of the murder, he smiled and commented, "That doesn't mean a thing."

T.387.*fn1 The police obtained a DNA sample from Borcyk prior to terminating the interview.*fn2

On December 23, 2004, Chatterton received the results from the testing performed Borcyk's recent DNA sample. Borcyk was brought to the police station that same day and given his Miranda warnings, which he waived. The officers informed Borcyk that he was under arrest for Ortiz's murder because his DNA had been found under Ortiz's fingernails and in semen from her vagina. When asked to explain these results, Borcyk continued to deny knowing Ortiz. Chatterton described Borcyk's demeanor as very calm.

The police asked Borcyk if he did not believe that these DNA results existed, Borcyk responded, "My lawyer says there's no way you can have my DNA that fast." T.397. When asked who his lawyer was, Borcyk admitted that he did not have a lawyer and stated that it actually was a friend who had told him that.

The police provided Borcyk with the lab report to review, and he was questioned further about his involvement in the matter. Given another opportunity to explain the presence of his DNA on Ortiz's body, Borcyk reiterated that he did not know Ortiz. He retreated from his position that he had not had sex with prostitutes since the 1990s, admitted that he had done so as recently as 2001. (Ortiz was killed in October 2002.)

While Borcyk was being held in the County Jail, he had a telephone conversation with his mother, which was tape-recorded and introduced into evidence. During the conversation, Borcyk admitted that at the time Ortiz's body was found, he was living at an address nearby.

3. Jameik Lawhorn and Sidney Lawhorn, Jr.

Sidney Lawhorn, Jr. ("Sidney") and Jameik Lawhorn ("Jameik"), his cousin were both sitting a car in a driveway across the street from Ortiz's house on Friday, October 25, 2002. Chatterton obtained a statement from Sidney on February 27, 2003, regarding the events of that evening. Sidney ultimately invoked his Fifth Amendment privilege and refused to testify at Borcyk's trial, even under penalty of perjury if he did not have a legitimate Fifth Amendment privilege to invoke.*fn3 The ...

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