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Tracey Boyce, Pro Se v. Mark L. Bradt

August 29, 2012


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Pro se petitioner Tracey Boyce ("Petitioner") is currently serving concurrent prison sentences of 25 years to life and 15 years, following his conviction in New York State Supreme Court, Kings County, for murder in the second degree, N.Y. Penal Law § 125.25(1), and criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03(2). In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Petitioner claims that: (1) the prosecution failed to prove that he knowingly, intelligently and voluntarily waived his Miranda rights when he made certain inculpatory statements to police officers, and (2) his sentence was harsh and excessive. For the reasons set forth below, the petition is denied in its entirety.


A. Murder of James Green

Around 1990, James Green ("Green") and his brother Milton Green formed a music production company. (Green 297-98.)*fn1 The music studio was located in the first floor of a building in Brooklyn, while the other floors of the building contained apartments. (Green 289-90.) At some point in the early 1990s, Green recruited Petitioner to record in his studio and, eventually, Petitioner began living rent-free in the basement below the studio. (Green 290-92.) However, by at least the later part of 2002, Green began to demand that Petitioner pay $150 per month in rent, because Petitioner's girlfriend, Theresa DeWindt, and her children had started living with Petitioner in the basement. (DeWindt 453.) According to Petitioner's girlfriend, Petitioner would promise Green that he would pay the rent and then not pay it. (DeWindt 454.)

During the morning of May 15, 2003, Green asked Petitioner for rent money, and Petitioner responded that he would pay. (DeWindt 455-56.) He told DeWindt later in private that he actually had no intention of paying the rent money. (Id.) On the evening of May 15, 2003, a witness recalled that he saw Petitioner angrily call Green out of the studio, and when Green returned to the studio after leaving to talk to Petitioner, Green looked upset. (Richards 352-53, 356-59.) The same evening, Petitioner's friend Daniel McKay visited Petitioner in his basement apartment. (McKay 586-87.) While they were in the basement, Petitioner asked McKay, "Do you want to kill somebody?" (Id.) McKay asked who Petitioner wanted killed and Petitioner responded "Country," which was Green's nickname. (McKay 587.) Petitioner told McKay that he wanted to kill Green because Green had been complaining about money Petitioner owed him for rent and studio time. (McKay 587-88.) McKay did not believe that Petitioner was serious about killing Green. (McKay 600.) McKay stayed at Petitioner's apartment until about 2:00 a.m. on May 16, 2003. (McKay 589.)

At approximately 2:00 p.m. on May 16, 2003, Petitioner telephoned DeWindt and told her to come to his apartment immediately. (DeWindt 457.) DeWindt asked Petitioner what was wrong and Petitioner told her that he killed "him." (Id.) DeWindt arrived at Petitioner's apartment approximately 30 to 45 minutes later and found Petitioner sitting on his bed smoking, with a gun in his waistband and a shotgun by the doorway. (DeWindt 458-59.) Petitioner apologized to DeWindt for messing up her life. (DeWindt 459.) When DeWindt asked Petitioner why he was upset, Petitioner said that he had gone upstairs to talk to Green and the discussion turned into an argument. (Id.) Petitioner told DeWindt that the argument became a fight and the only way to get Green off of Petitioner was to shoot Green, so Petitioner shot him. (DeWindt 459-60.) Petitioner also told DeWindt that after shooting Green, he had gone to the basement to get a shotgun and "finish him off," but Petitioner did not tell DeWindt whether he had actually done so. (DeWindt 460.)

Before DeWindt arrived, Petitioner also telephoned his friend Lenrich Prescod and asked him to come to Petitioner's apartment to help Petitioner move some things. (Prescod 531-33.) McKay testified that he saw Prescod on his way to Petitioner's apartment and decided to join him. (McKay 589.) They reached the building together sometime after 5:00 p.m. (McKay 589-90.) Shortly before Prescod and McKay arrived, a recording engineer, David Downie, came to the studio to begin setting up for a recording session scheduled for that night, and ran into Petitioner in the hallway outside the studio. (Downie 308-10.) Petitioner appeared angry and told Downie not to enter the lounge that leads to the studio, "or else." (Downie 310.) Petitioner then lifted up his shirt and revealed that he had a gun. (Downie 311.) Petitioner said to Downie that, if he told anybody that he saw Petitioner in the building, "it was going to be trouble" for Downie's family and friends. (Downie 312.) Around the time that Petitioner was showing Downie the gun, McKay and Prescod arrived and Petitioner let Downie leave the building. (Downie 311-15; McKay 592.)

Prescod, McKay and DeWindt began to move Petitioner's and DeWindt's belongings from the basement to the outside of the building soon after Prescod and McKay arrived. (DeWindt 463; Prescod 533-34; McKay 590-91.) While they were moving the belongings, Petitioner told McKay and Prescod that Petitioner had an argument with Green and then shot him. (Prescod 534, 539; McKay 592-93, 595.) Petitioner also asked McKay if he wanted to see Green's body, but McKay said no. (McKay 593.) While moving, either DeWindt or McKay called two cabs and, once the cabs arrived, they loaded the belongings into the cabs. (DeWindt 463-64; McKay 592.) Petitioner, McKay, DeWindt and Prescod then took the cabs to the apartment of Petitioner's friend Rohan and unloaded the belongings there. (DeWindt 464; Prescod 536; McKay 593-94.)

Meanwhile, after Downie left the studio, he went home, where he met Lloyd Richards, one of Green's friends, as well as a number of Richards' other friends. (Downie 316-17; Richards 350.) The group went back to the studio at approximately 6:30 p.m. and entered the lounge and control areas of the studio. (Downie 318-20; Richards 350-51.) As they entered the room, Downie and Richards saw Green kneeling over a chair, like he was looking for something on the floor or was sick. (Downie 318-20; Richards 350-52.) Downie began talking to Green, but when Green did not answer, Downie touched Green's back and felt that it was cold. (Downie 320.) Richards also touched Green and felt that he had no pulse, and saw that Green had blood on his stomach. (Downie 320; Richards 352.) Downie then called 911. (Downie 320.) The police came to the studio, found Green's body and examined the scene. (Downie 321; Duffy 369-75.)

After speaking with witnesses, the detective assigned to the case, Detective Duffy, focused on Petitioner as a suspect in Green's death. (Duffy 376.) However, Duffy was unable to locate Petitioner through various means and, at the suggestion of Green's brother, Duffy ultimately contacted the television program "America's Most Wanted." (Duffy 377-82.) The program broadcast a segment on Green's killing on May 1, 2004. (Duffy 382.) Paul Holland, a detective in Boca Raton, Florida, watched the program and recognized Petitioner as somebody he knew. (Duffy 385.) Holland and a team of local officers immediately began searching for Petitioner. (Duffy 384-85.) That same day, the officers found Petitioner and arrested him. (Duffy 385.)

B. Interrogation of Petitioner

On May 2, 2004, when a fingerprint comparison confirmed that the man Officer Holland had arrested was indeed Petitioner, Duffy and his partner, Detective Kristofferson, flew to Florida. (Duffy 386.) At approximately 2:00 p.m., local officers led Duffy and Kristofferson into an interview room, where Petitioner was seated and handcuffed. (H: Duffy 11-12.) The detectives introduced themselves to Petitioner and asked whether Petitioner would be willing to talk to them. (H: Duffy 11.) Duffy then read Petitioner his Miranda rights from a sheet of paper. (H: Duffy 12.) After each warning, Duffy asked Petitioner if he understood and Petitioner responded, "Yes." (H: Duffy 14.) Petitioner did not ask any questions about the warnings. (H: Duffy 29.) When Duffy was finished reading all of the Miranda warnings, Duffy asked Petitioner whether he was willing to answer questions. (H: Duffy 14.) Petitioner responded that he was indeed willing to answer questions. (Id.)

Duffy began the interview by asking Petitioner for his name. (H: Duffy 17.) Petitioner responded that he did not have a name anymore and that he only answered to a higher power. (Id.) Petitioner said that before he accepted this higher power, his name was Tracey Boyce. (Id.) Petitioner also explained that, from as far back as he could remember, he was never the same as everybody else. (Id.) Although he generally got along with everybody, there were five people in his life that pushed him to a point that he never wanted to be. (Id.) Petitioner claimed that these five people knew what buttons to push to get him to the point where he wanted them to be dead. (Id.) Petitioner hated feeling that way, but when those people pushed him, Petitioner did not have a choice. (Id.)

Petitioner explained that Green got Petitioner to "that point" because Green put his hands on Petitioner. (H: Duffy 17-18.) According to Petitioner, Green kept complaining about Petitioner's failure to pay rent money. (Id.) Petitioner said he left for a while and went to Philadelphia, but as soon as he returned to Brooklyn, Green again started bothering Petitioner for rent money. (Id.) The day after Petitioner returned to Brooklyn, Green called Petitioner into the recording studio. (Id.) Petitioner stated that Green, who was sitting in a chair and playing with a television remote control, was talking to Petitioner like he was a "loser." (Id.) Then, Petitioner explained, Green got up from the chair and attacked Petitioner, put both hands around Petitioner's neck and began laughing. (H: Duffy 18-19.) Petitioner said that he was unable to get Green off of him and remembered that he had a gun in his waistband. (Id.) Petitioner told Duffy that he then pulled out the gun and shot Green in the stomach. (Id.)

According to Petitioner, Green then let go of Petitioner and asked why Petitioner shot him. (Id.) Petitioner stated he responded that Green was lucky Petitioner only had a single bullet in the gun because, if he had more, he would have shot Green all over his body. (H: Duffy 19-20.) He also told Green that he was going to cut Green's head off and light Green on fire. (H: Duffy 20.) At that point, according to Petitioner, Green started to go into the studio. (Id.) Petitioner thought that Green was going to get another gun, but he fell on a chair inside the studio. (Id.) Petitioner then explained to Duffy that he left the studio to gather his belongings, and called his girlfriend and friends to help him move his things. (Id.) Petitioner said that in the days afterward, he moved into different houses, getting help from people and finding places to sleep. (H: Duffy 20-21.) Petitioner said that, one day, he was walking around Crown Heights, Brooklyn, when he made contact with one of "them," and knew the person was evil and was going to "tell the others." (H: Duffy 21.) At that point, Petitioner explained, he took a bus and travelled to Florida. (Id.) Petitioner then asked Duffy, if Petitioner had to go back to Brooklyn, whether he will have to see "them" again. (Id.)

Duffy testified that it took approximately 45 minutes to an hour for Petitioner to give his statement. (H: Duffy 22.) After Petitioner finished his statement, Duffy asked him if he would be willing to be interviewed on videotape. (H: Duffy 22-23.) Petitioner responded that he thought he was already being videotaped, and Duffy explained that he would not videotape Petitioner without his permission. (H: Duffy 23.) Petitioner then agreed to be videotaped. (Id.) Once the recorder was on, Duffy told Petitioner that he had the right to remain silent. (Barall Aff. Ex. 4.) Petitioner said, "I have the right to do that? So why would you be asking me any questions if I have the right to do that?" (Id.) After Duffy explained that it was Petitioner's right and it was up to him to decide whether to waive the right, Petitioner asked what would happen if he decided not to answer Duffy's questions. (Id.) Duffy said that, if Petitioner decided not to answer his questions, "then I won't ask you anymore questions. Then that'll be it and we will shut it down." (Id.) Petitioner asked "what happens from there?" (Id.) Duffy explained, "It's up to you. Are you going to come back with us or are you going to stay here and we'll have to go back and do what we got to do and we'll come back and get you at another time." (Id.)

Duffy then told Petitioner that he was going to read the Miranda rights from the paper he had in front of him and if "you say no, if you don't want to answer my questions . . . that's it, it's over. I don't question you any more, okay?" (Id.) Petitioner then asked, "when you meet up with me again and I'm still not answering your questions, then what?" (Id.) Duffy responded by explaining that Petitioner could either travel back to Brooklyn with him or stay in Florida until Duffy completed the necessary paperwork. (Id.)

Duffy again read Petitioner his Miranda rights from the card. (H: Duffy 23.) After each right, Duffy asked Petitioner if he understood, to which Petitioner responded yes. (Barall Aff. Ex. 4.) When Duffy told Petitioner that he had a right to a free attorney if he could not afford one, Petitioner said "you mean like today?" (Id.) Duffy responded, "Whenever. If you can't afford an attorney, they'll pay for one for you, that's what I explained to you earlier." (Id.) Duffy then repeated that Petitioner had a right to a free attorney and Petitioner responded that he understood. (Id.) Duffy asked Petitioner whether he was willing to answer questions after being advised of his rights. (Id.) Petitioner said, "Yes." (Id.) Duffy then removed Petitioner's handcuffs and they both signed the paper containing the Miranda card from which Duffy was reading. (H: Duffy 23-24.) As Petitioner's handcuffs were being removed, he mumbled something unintelligibly and then said, "we be chillin'." (Barall Aff. Ex. 4.)

Duffy then asked Petitioner to describe the incident that occurred on May 16, 2003. (Id.) Petitioner again explained that Green confronted Petitioner outside of the music studio about his failure to pay rent, which escalated into an argument. (Id.) Petitioner said that Green got upset when Petitioner said, "What if I expose you for things I know you do? For the secrets I keep for you? S--t I know you do. S--t I know you did. That'll bury all y'all." (Id.) Petitioner again stated that Green proceeded to grab Petitioner around the neck and laugh. (Id.) According to Petitioner, he was unable to fight Green off, so he pulled out the gun in his waistband and shot Green once in the stomach. (Id.) Petitioner said that, after being shot, Green went into ...

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