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Avery Baker v. Brian Fischer

May 25, 2012

AVERY BAKER, PETITIONER,
v.
BRIAN FISCHER, COMMISSIONER, NYS DEPT. OF CORRECTIONAL SERVICES, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Avery Baker ("Baker" or "Petitioner"), proceeding pro se, has filed this28 U.S.C. § 2254 petition for a writ of habeas corpus challenging the September 10, 2007, judgment of the New York State County Court, Chemung County, convicting him, following a jury trial, of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.25(4)), Manslaughter in the First Degree (P.L. § 125.20(4)), Manslaughter in the Second Degree (P.L. § 125.15(1)), Reckless Endangerment in the Second Degree (P.L. § 120.20), and Endangering the Welfare of a Child (P.L. § 260.10(1)).

II. Factual Background and Procedural History

A. Overview

On September 12, 2006, Petitioner threw a twenty-month-old child, Jordan Steiner ("Jordan"), into the child's metal crib. Jordan was the son of Petitioner's girlfriend, Kelly Steiner ("Steiner"). Later that night, Jordan had a seizure and was hospitalized overnight. Three days later, when the child drew on a television set with a crayon, Petitioner became incensed. After spanking Jordan, Petitioner picked him up, violently shook him, and threw him to the ground. Jordan died as the result of his head striking the floor. Petitioner initially denied any involvement in Jordan's death, but later gave a written statement to police admitting that he had thrown Jordan to the ground.

On October 19, 2006, a Chemung County grand jury indicted Petitioner on charges of Murder in the Second Degree (P.L. § 125.25(4)), Manslaughter in the First Degree (P.L. § 125.15(1)), Reckless Endangerment in the Second Degree (P.L. § 120.20), and two counts of Endangering the Welfare of a Child (P.L. § 260.10(1)). Petitioner moved to suppress the statements he made to police, and following a hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), the trial court denied the motion. On July 16, 2007, petitioner proceeded to a jury trial before the Honorable Peter C. Buckley.

B. The Trial

1. The Prosecution's Case

On September 12, 2006, Petitioner was with Steiner, her twenty-month-old son Jordan, and Petitioner's son Jamal Baker, in Kelly's Elmira apartment. By all accounts, Jordan was a healthy child. T.537-46. During their four months together, Petitioner had repeatedly physically abused Kelly. T.368-76, 470-71. That night, Petitioner had tried to choke her. T.468-69. Steiner left the apartment to take out the trash and when she returned, Jordan was crying alone in his room. Petitioner said Jordan was being punished for misbehaving. T.377-80.

Petitioner subsequently carried Jordan by one arm from the living room to the bedroom, where Steiner heard Petitioner loudly throw the child into his metal crib. T.247-48, 382-85. Steiner did nothing to intercede on behalf of her child. Later, when Steiner checked on Jordan, he was "breathing funny," turning blue, and his lips were pale; he then arched his back, went limp, and made very little sound. T.385-88. Petitioner called 911 and told the operator that Jordan was having a seizure. T.341, 389-90. Jordan was hospitalized overnight and released. T.390-91, 546-66, 592-600. Petitioner lied to Chataya Adams (Jordan's father's girlfriend) about the incident, telling her that Jordan had been running a fever. T.622.

Joann Swann babysat for Jordan and Jamal on September 14, 2006, and noticed nothing unusual about Jordan. T.168-79, 398-402.

In the early morning hours of September 15, 2006, Petitioner became angry when he saw Steiner cleaning up the television because it had crayon on it. T.402-08. When Jamal told Petitioner that Jordan had colored on the television, Petitioner instructed Kelly to get Jordan out of bed, and she awakened the sleeping child and walked him into the living room. T.408-09. Petitioner pulled Jordan up by one arm and spanked him; Jordan began to cry. T.409. Again, Steiner did not act to protect her child. Petitioner took Jordan to the apartment's entrance where Steiner could not see them, but could hear Jordan crying after Petitioner placed him in a corner.

T.410-11.

A short time later, Steiner saw petitioner pick up Jordan by the child's armpits, raise the child to face level, and shake him violently. T.414-15. Petitioner, who is stands about six-feet, five-inches tall, and weighs around two hundred and eighty-five pounds, then threw Jordan to the ground where Jordan hit his back and head. T.415-16. Neighbor Karen Lopez heard Petitioner tell Jordan to shut up, and then she heard a "boom". T.484-91.

Jordan tried to stand up but could not. T.418-19. When Petitioner picked the child up, Jordan took two breaths but stopped breathing. T.419-20. Petitioner moved the child to the sofa, and Kelly suggested they call 911. Petitioner, who happened to be a trained EMT, told her to wait ten minutes "because he will come out of it like he did last time." T.420-22. Petitioner eventually called 911 and reported that Jordan was having a seizure. T.342, 423.

When EMT John Curione arrived at the apartment, Jordan had no pulse and was not breathing. T.107-16, 134-48. Petitioner failed to tell EMT Christopher Smith that he had thrown the child. T.73-77, 87. When Jordan arrived at St. Joseph's Hospital, he was "lifeless" and was pronounced dead. T.87-91, 117-19, 134-52, 351-57.

At the hospital, Petitioner falsely told Jordan's father, Lajuan Coleman ("Coleman") and Coleman's girlfriend, Chantaya Adams ("Adams"), that he had seen Jordan having a seizure, and had immediately called an ambulance, but by the time it arrived Jordan was dead. T.516, 624.

Elmira Police Officer Amy Taft ("Taft") responded to the hospital, where she spoke with Petitioner in the waiting room about why Jordan had been brought to the hospital. Petitioner lied to Taft, saying that after Steiner had called him into the living room where Jordan was limp and unresponsive, Petitioner held Jordan. When he saw the child was having difficulty breathing, he called 911. T.184-188.

Petitioner and Steiner then went with Investigator Brian Ellis ("Ellis") to the Elmira Police Department to assist with the preliminary investigation into Jordan's death. T.211-12. When Ellis began to interview petitioner, he did not administer Miranda warnings because the police did not know what had happened, and were in the preliminary investigation stage. T.212-14. Petitioner initially denied having any involvement in Jordan's death. He offered a third false story, explaining that Steiner had checked on Jordan after hearing him gasping, and had called to Petitioner. When Petitioner picked Jordan up, he "went stiff." T.214-18.

Petitioner attempted to shift the blame on Jordan's biological father, asking Ellis was questioning him instead of Coleman. T.215, 364-65, 498-99. Ellis typed a statement describing the events Petitioner had related, and Petitioner signed it. T.218-19, 229-33. Petitioner was free to leave, but waited at the police station more than three hours while Steiner completed her interview. T.219-22. When the police had finished questioning Steiner, Ellis drove them back to Steiner's apartment. T.222.

Later that day, forensic pathologist Paul Gosink, M.D. ("Dr. Gosink") conducted an autopsy and determined that the cause of Jordan's death was blunt force injuries of the skull, with a subarachnoid hemorrhage. T.223-24, 689-91, 729-30. When Sergeant William Bresser ("Bresser") and other officers received notice of the preliminary autopsy results, they returned to Steiner's apartment and requested that Steiner to accompany him to the police station for questioning. Petitioner asked if he could go with them, and Bresser assented. T.271-73, 632-35.

Bresser and Investigator Richard Weed ("Weed") administered Miranda warnings, and Petitioner waived his rights. T.275-76, 635-41. After about an hour and one-half to two hours, Professor James Chapman ("Chapman"), a forensic expert employed as a consultant by the Elmira Police Department, joined the questioning.

T. 276-77, 641-48. During the questioning, Petitioner gave varying and widely disparate versions of Jordan's death, including that the boy had died of a seizure, had been running and hit his head on a door, and had accidentally fallen to the floor. T.280-83.

Eventually, Bresser and Weed left the room, and Petitioner told Chapman that he had been angry with Jordan for writing on the television set with crayon. He had then spanked Jordan, picked him up, shook him, and thrown him to the ground. Chapman testified that Petitioner stated that "he slammed the child to the floor in a manner that you would bounce pass a basketball." Petitioner also admitted lying to the police and medical personnel about how Jordan had been injured. T.190-201, 284-85, 648-51. Petitioner signed a written statement containing those admissions. T.285-86, 651-59.

2. The Defense Case

Petitioner called neuropathologist Peter Ostrow, M.D. ("Dr. Ostrow"), as the sole defense witness. Dr. Ostrow reviewed Jordan's medical records and autopsy photographs, and concluded that Jordan's immediate cause of death was "hypoxia" or a lack of oxygen, which had been caused by a blow or blows to the head. Brain swelling was a contributing factor to the child's death. T.774-77, 779-84, 787-801, 809-10, 821-27.

3. The Verdict and Sentencing

The trial court, with the prosecutor's consent, dismissed the child endangerment count arising from Petitioner's conduct on the date of death, September 15, 2006. T.852-60. However, the child endangerment count arising from Petitioner's actions on September 12, 2006, was not dismissed and was submitted to the jury. The jury found Petitioner guilty of all of the remaining counts. T.1047-50.

For his heinous crimes, Petitioner received indeterminate prison terms of twenty years to life for the second degree murder conviction and five to fifteen years for the second degree manslaughter conviction. The prison terms were set to run concurrently to each other and to a determinate twenty-year prison term for first degree manslaughter. For the first degree manslaughter offense, Baker also received a five-year term of post-release supervision. With regard to the convictions for endangering the welfare of a child and reckless endangerment, he received two one-year determinate prison terms, both of which were ordered to run concurrent ...


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