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Castellanos v. Kirkpatrick

United States District Court, E.D. New York

June 29, 2017

ARTEMIO CASTELLANOS, Petitioner,
v.
ROBERT KIRKPATRICK, Superintendent of Wende Correctional Facility, Respondent.

          MEMORANDUM & ORDER

          MARGO K. BRODIE United States District Judge.

         Petitioner Artemio Castellanos filed the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 3, 2010, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet., Docket Entry No. 1.) Petitioner's claims arise from a judgment of conviction following a jury trial in the Supreme Court of New York, Nassau County, (the “Trial Court”) for committing a criminal sexual act in the first degree and for sexual abuse in the first degree. (Id. at 1.) The Trial Court sentenced Petitioner to concurrent terms of imprisonment of twenty-five years on the criminal sexual act count and seven years on the sexual abuse count. (Id.) Petitioner appealed his conviction to the New York Supreme Court Appellate Division, Second Department (the “Appellate Division”), which affirmed the conviction. People v. Castellanos, 884 N.Y.S.2d 126 (App. Div. 2009). Petitioner sought leave to appeal with the New York Court Appeals, which leave was denied. People v. Castellanos, 13 N.Y.3d 858 (2009).

         On June 10, 2013, Petitioner filed a motion for leave to amend and to stay the petition while he filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law section 440.10 with the Supreme Court of New York, Nassau County (the “440 Court”). (Pet'r Mot. to Amend and Stay Pet., Docket Entry No. 15.) By Memorandum and Order dated July 16, 2013, the Court granted the motion.[1] Castellanos v. Kirkpatrick, No. 10-CV-5075, 2013 WL 3777126, at *1-4 (E.D.N.Y. July 16, 2013). On June 18, 2013, Petitioner filed a motion to vacate his conviction under section 440.10 (the “440 Motion”) with the 440 Court. (Supplemental Record (“SR”) 1-49, Docket Entry No. 26-1.) By Decision and Order dated December 4, 2013, the 440 Court denied the 440 Motion. (SR 776-79.) On April 3, 2014, Petitioner filed an amended petition, adding the claim he raised in the 440 motion. (Am. Pet., Docket Entry No. 20.) By Memorandum and Order dated November 18, 2015 (the “November 2015 Order”), the Court denied the petition in part and stayed decision in part, pending in camera review of the arresting officer's personnel file. Castellanos v. Kirkpatrick, No. 10-CV-5075, 2015 WL 7312908, at *1-10 (E.D.N.Y. Nov. 18, 2015). For the reasons discussed below, the Court grants Petitioner habeas corpus relief on the remaining claim in the amended petition.

         I. Background

         In June of 2005, Petitioner lived in Freeport, New York in the home of Osvaldo Lopez with Lopez's wife, Anna Lillian Rivas DeLopez, and the Lopez couple's two sons, C.L and N.L.[2](T. 370:1, 902:23-904:14.)[3] C.L. was five years old and N.L. was six years old. (T. 381:12-14, 903:20-904:2.) At the time, Petitioner's girlfriend, Flor Sosa, lived in the Lopez family's home, as did DeLopez's brother, Minor Rivas, and two family friends, Elias and Dimas Ramirez. (T. 378:10-25, 380:7-20, 437:24-438:10, 906:3-10.) On the second floor of the home, Petitioner and Sosa shared a room, Elias had his own room, and Dimas slept on a mattress in the common area. (T. 376:6-380:20, 437:24-438:10.) On the first floor of the home, Rivas used a section of the living area as a bedroom and Lopez, DeLopez and the children slept in the bedroom. (T. 376:6-380:20, 437:24-438:10.)

         On the evening of June 30, 2005, the members of the Lopez household were having dinner and Rivas and C.L. went to the living room to play. (T. 913:4-914:1.) While they were playing, Rivas observed that C.L.'s penis became erect and alerted DeLopez. (T. 913:24-914:2.) DeLopez asked C.L. why his penis was erect, but C.L. did not respond. (T. 914:18-915:3.) N.L. expressed that he knew why, explaining that C.L. had told him that Petitioner had done something to C.L. (T. 387:14-388:24, 915:8-23.) DeLopez then took C.L. into her bedroom and asked him to tell her what he had told to N.L. (T. 915:24-916:4.) C.L. was hesitant to answer, but eventually told DeLopez that Petitioner was sexually abusing him. (T. 916:8-25.) DeLopez waited for Lopez to finish his shift at work and went to pick him up. (T. 917:22- 918:8.) When she picked him up, she told Lopez that Petitioner had been sexually abusing C.L. (T. 387:14-388:24, 918:9-14.) When they arrived home, Lopez took C.L. upstairs and confronted Petitioner about the alleged abuse. (T. 388:13-389:2, 918:15-919:1.) Lopez knocked on Petitioner's bedroom door, Sosa answered and Lopez stated that he wanted to speak to Petitioner. (T. 389:5-25, 113513-25.) Lopez asked C.L. what Petitioner had done to him, to which C.L. replied “[y]ou Artemio did something bad to me.” (T. 390:6-15, 1136:5-8.) According to Petitioner, he then asked what the “bad thing” he had done was, received no response from C.L. and Lopez said, “[i]f you say nothing happened we'll leave it like that.” (T. 1136:15-1137:13.)

         The following day, July 1, 2005, C.L.'s parents took C.L. to see Dr. Luis Herrera, C.L.'s pediatrician. (T. 397:17-398:20, 602:14-23, 607:5-9.) C.L.'s parents told Dr. Herrera that C.L. may have been sexually abused. (T. 400:1-5, 608:5-609:5.) C.L. also told Dr. Herrera that Petitioner had anally penetrated C.L. with his penis. (T. 609:7-610:5.) After learning the reason for C.L.'s visit, Dr. Herrera inspected C.L.'s rectum. (T. 611:10-18.) The results of the exam were normal and inconclusive as to any sexual abuse. (T. 611:19-24, 618:16-619:18, 623:9-10.) Dr. Herrera, however, did not have the necessary instruments to determine whether C.L. had been anally penetrated, and he therefore recommended that C.L.'s parents take C.L. to an emergency room for a more thorough examination. (T. 612:2-613:1.) Given the nature of C.L.'s accusation, Dr. Herrera called the police and the Administration for Children's Services (“ACS”). (T. 612:18-613:1.) The police came to Dr. Herrera's office, spoke with C.L.'s parents and C.L. about the sexual abuse accusation and requested that C.L.'s parents bring him to the office where the police handle sexual abuse cases. (T. 400:12-401:24, 923:15-925:25.)

         On July 7, 2005, C.L.'s parents took him to the Nassau County Police Department's (“NCPD”) child abuse center, where C.L. was examined by Dr. Diane Lombardy. (T. 556:14-20, 926:1-11.) Dr. Lombardy physically examined C.L.'s genitalia, rectum and anus with the naked eye and with a colposcope, which is “a free-standing microscope” that has a camera capable of capturing photographs at four-to-twenty-five times magnification. (T. 506:8-23, 526:7-527:23.) Using the colposcope, Dr. Lombardy captured twenty-four photographs of C.L.'s genitalia, rectum and anus. (T. 529:1-530:18.) The photographs revealed “smoothing” of the “folds of skin” on the outside of C.L's rectum and “trauma inside the rectal vault, ” which Dr. Lombardy opined indicated “repetitive penetration.” (T. 543:7-552:20.)

         The NCPD assigned the investigation into the alleged abuse to Detective Diane Barbieri. (T. 642:9-13, 645:9-646:6.) The NCPD also assigned Detective Edwin Trujillo to assist in the investigation because he had special training in investigating child abuse cases and spoke fluent Spanish; C.L. primarily spoke Spanish. (T. 642:9-646:14, 651:25-652:3.) On July 20, 2005, Detective Trujillo interviewed DeLopez and C.L. at the NCPD child abuse center. (T. 652:4- 655:6.) During the interview, C.L. told Detective Trujillo how the sexual abuse took place. (T. 655:11-656:14.) As a result, Detective Trujillo decided to arrest Petitioner. (T. 659:13-21.)

         a. Petitioner's arrest, questioning and confession

         On July 21, 2005, Detectives Trujillo and Barbieri located Petitioner at approximately 9:30 PM, and Detective Trujillo approached Petitioner and requested that he accompany them to the police station to discuss the investigation. (T. 659:15-660:25.) Because Petitioner was with Sosa, he asked Detective Trujillo if Sosa could join them. (T. 661:1-4.) Detective Trujillo consented to the request and Detective Barbieri drove Detective Trujillo, Sosa and Petitioner to the police station. (T. 661:4-662:23.) Petitioner sat, unrestrained, in the rear of the police vehicle with Sosa. (T. 661:4-662:23.)

         After they arrived at the police station, Detective Trujillo took Petitioner to an office where the detectives' desks were located. (T. 663:10-24.) Detective Trujillo sat at his desk, Petitioner sat in a chair across from Detective Trujillo, Detective Barbieri sat at her desk and Sosa sat in a lounge outside the detectives' office. (T. 664:2-667:11.) Another detective that was not involved in Petitioner's investigation was also in the office. (T. 667:8-11.)

         During the questioning, Detective Trujillo and Petitioner conversed in Spanish. (T. 669:15-19.) According to Detective Trujillo, he read Petitioner his Miranda rights from a form.[4] (T. 669:7-770:25.) Petitioner acknowledged that he understood his rights by signing the form and decided to proceed without an attorney present. (T. 675:9-677:6.) Initially, Petitioner denied that he had sexually abused C.L., but after Detective Trujillo informed him that there was medical evidence showing that he had sexually abused C.L., Petitioner admitted that he had anally penetrated C.L. on three separate occasions. (T. 677:15-682:13, 693:1-695:25.) Petitioner told Detective Trujillo that the acts took place in his bedroom on a “tan-colored chair.” (T. 681:12-682:5.) Detective Trujillo memorialized Petitioner's statement in writing, read the statement aloud to Petitioner, asked Petitioner to correct any errors in the statement, had Petitioner read the statement and then had Petitioner sign the statement. (T. 682:6-683:16.) Thereafter, Petitioner was placed under arrest. (T. 696:4-697:12.)

         Based on the foregoing alleged events, on November 1, 2005, Petitioner was charged with one of count of committing a criminal sexual act in the first degree and one count of sexual abuse in the first degree. (H. 5.) Petitioner rejected the State's plea offer, (H. 5-10), and the case proceeded to trial.[5]

         b. Trial

         The trial spanned twelve days. (T. 315-1493.) The State's witnesses were Lopez, Dr. Lombardy, Dr. Herrera, Detective Trujillo, C.L. and DeLopez. (T. 1494.) Petitioner's witnesses were Sosa, Dr. Stephen Ajl and Petitioner.[6] (T. 1494.)

         i. Lopez testimony

         On direct examination, Lopez testified that he and Petitioner were childhood friends in Guatemala. (T. 370:18-371:2.) Lopez believed that Petitioner could read Spanish because he read aloud from the Bible at church services in Guatemala. (T. 394:17-395:8.) Lopez immigrated to the United States in May of 2000. (T. 372:1-4.) Petitioner immigrated to the United States in approximately 2003, and upon arrival, lived with Lopez and his family. (T. 372:19-25.) Approximately six months after Petitioner moved into the Lopez family's home, Sosa immigrated to the United States and moved into Petitioner's bedroom. (T. 377:12-378:6.) Petitioner's bedroom was on the second floor of the home, Elias also had a bedroom on the second floor, and Lopez, his wife and two sons shared a bedroom on the first floor. (T. 375:22- 376:25, 378:10-25.) In June of 2005, Dimas needed a place to stay while he looked for housing and Lopez allowed him to sleep in a common area on the second floor of his home. (T. 379:16- 380:18.)

         From the time Petitioner moved in, he appeared to have a good relationship with Lopez's sons; he often played with them and took them to the park. (T. 381:10-383:8.) In June of 2005, Lopez worked from 10:30 AM to 10:00 PM and DeLopez worked from 7:00 AM to 3:00 or 4:00 PM, and Petitioner would sometimes watch the children while Lopez and DeLopez were at work. (T. 383:12-385:25.) On June 30, 2005, DeLopez picked Lopez up from work and told Lopez that something had occurred between Petitioner and C.L. (T. 387:14-388:24.) As a result of that conversation, when Lopez arrived home, he went to confront Petitioner with C.L. accompanying him. (T. 388:13-17.)

         Lopez knocked on Petitioner's bedroom door and Sosa answered. (T. 389:19-25.) Lopez told Sosa that he wanted to speak with Petitioner. (T. 389:24-25.) Once Petitioner came to the door, Lopez asked if Petitioner “wanted Flor [Sosa] to listen to this, ” and Petitioner “changed color.” (T. 390:1-5.) Lopez then instructed C.L. to state what Petitioner had done to him, to which C.L. said “[y]ou, Artemio, did something bad to me in this chair.” (T. 390:6-15.) Petitioner responded by asking Lopez if he believed C.L., and Lopez said that he “[did not] want to believe it.” (T. 390:22-391:1.)

         Based on the conversation, Lopez decided to take C.L. to see Dr. Herrera. (T. 391:16-21, 398:3-21.) Lopez and his wife informed Dr. Herrera of the reason for C.L.'s visit, Dr. Herrera examined C.L. and then he called the police. (T. 397:17-400:15.) The police spoke with Lopez, DeLopez, C.L. and Dr. Herrera and then instructed C.L.'s parents to bring him to the NCPD's child abuse center. (T. 400:16-402:2.) A few days later, Lopez and DeLopez returned to the child abuse center for Dr. Lombardy to examine C.L. (T. 402:6-23.)

         On cross-examination, Lopez remembered observing Petitioner playing with the children in the yard in front of his home, but could not recall specific instances of when Petitioner played with the children. (T. 444:6-23, 446:1-4, 449:5-450:14.) Although Petitioner worked during the week, he sometimes would be home alone watching the children while the other members of the home were at work. (T. 451:4-452:12, 462:6-18, 466:3-19.) When Lopez or DeLopez was unable to meet the children at their school bus stop after school ended, Petitioner would meet the children at the school bus stop and walk them home. (T. 453:18-458:9, 462:13-463:8.) Elias and Dimas both lived in the home in May and June of 2005, when Petitioner allegedly abused C.L., and they sometimes watched the children when Lopez and DeLopez were at work. (T. 418:8-425:3, 437:11-438:13, 471:4-13.)

         ii. Dr. Lombardy testimony

         On direct examination, Dr. Lombardy testified that she is a licensed physician with a specialization in pediatrics, and at the time, was the attending physician at Nassau County University Medical Center. (T. 504:11-505:10.) In that position, she conducted “forensic evaluation[s]” of children who may have been sexually abused to determine whether there was any evidence of sexual abuse. (T. 506:1-11.) The forensic evaluation included, among other things, interviewing the child and examining the child with a colposcope. (T. 506:6-11.) A colposcope allows the examining physician to observe whether there are any “very small changes within the skin” that indicate sexual abuse. (T. 515:18-516:14.) During a forensic evaluation, a colposcope “is the [most] important instrument” used by the examining physician and allows the examining physician to observe changes that she could not observe with the naked eye. (T. 507:17-18, 520:1-7.) Dr. Lombardy had conducted approximately one thousand forensic evaluations over the course of her career. (T. 514:22-24.) The Trial Court qualified Dr. Lombardy as an expert. (T. 514:7-515:16.)

         Dr. Lombardy explained that:

[t]he tissue within the rectum is a mucosal type of tissue, . . . that [is] very similar to the tissue in your mouth. And the anal tissue is very similar to the tissue on your skin. All of these tissues have a lot of folds in them so they can expand to allow for defecation . . . [and] [they] heal[] very rapidly.

(T. 520:14-521:4, 523:2-524:3.) If a child has been anally penetrated, the physician cannot determine whether the penetration was conducted with a penis or some other object. (T. 519:2- 7.)

         Dr. Lombardy examined C.L.'s penis, scrotum, anus and rectum with the naked eye and used the colposcope to capture photographs of the areas. (T. 526:7-527:23.) The photographs were admitted into evidence and shown to the jury. (T. 528:2-535:23, 542:1-544:24.) Dr. Lombardy opined that the photographs of C.L.'s rectum showed “smoothing” of the folds of skin, which was “abnormal.” (T. 544:12-545:18, 548:5-549:4.) Dr. Lombardy explained that “if you were to stretch [] out” the rectal tissue, it “would make a big circle [] because there [are] folds of skin where they fold in on one another so that there [are] parts that are sticking up and parts that are deep within a crevice.” (T. 548:2-16.) Dr. Lombardy further explained that smoothing means that the “folds are no longer as evident, [t]he creases are not as deep and [] not as frequent as you go around” the rectal tissue. (T. 548:17-549:4.) Dr. Lombardy explained that smoothing of the rectal folds “indicates that the tissues themselves have been stretched over a period of time, that the natural folds of the tissue are no longer present in that area, ” and is “associated with repetitive penetration.” (T. 545:11-18, 549:17-550:13.) Dr. Lombardy also opined that some of the photographs showed that a portion of C.L.'s rectal tissue was “sticking out into the rectal vault” when it “should be actually against the [rectal] wall, ” indicating that C.L.'s rectal tissue had “been stretched and traumatized.” (T. 549:17-550:13.) Dr. Lombardy explained that the findings could result from chronic constipation, but C.L. had no history of chronic constipation. (T. 555:21-556:5.) Dr. Lombardy concluded that the “findings [were] consistent with sexual assault over an extended period of time.” (T. 555:15-20.)

         On cross-examination, Dr. Lombardy explained that she reached her conclusion that the findings were consistent with sexual assault and not chronic constipation because she spoke with DeLopez, who told her that C.L. never suffered from chronic constipation, and nothing in his medical history documented any past chronic constipation. (T. 557:1-559:7.) Petitioner's counsel highlighted that prior to examining C.L., Dr. Lombardy did not have knowledge of the triage assessment that was taken at Nassau County Medical Center when C.L. went to visit Dr. Herrera. (T. 560:3-563:25.) Dr. Lombardy restated that while her findings indicated repetitive penetration, she was unable to conclude whether the penetration was conducted with a penis or some other object. (T. 566:1-568:18.) Dr. Lombardy explained that she did not find any scars, fissures or bleeding in C.L.'s rectum during her examination, but given the speed with which the rectum heals, a lack of scars, fissures or bleeding is inconclusive. (T. 570:7-22, 577:1-578:23.) Dr. Lombardy also explained that she could not determine the date at which the penetration occurred. (T. 572:21-573:2.) Dr. Lombardy further explained that her findings are consistent with repetitive penetration, meaning that penetration occurred on ten to one-hundred separate occasions. (T. 575:6-577:23.) Dr. Lombardy stated that smoothing of the rectal tissue may be a result of a biological disorder and not penetration, but C.L. lacked the indicators and medical history of any such disorders. (T. 586:9-588:10.)

         iii. Dr. Ajl testimony

         Dr. Ajl testified for the defense to rebut Dr. Lombardy's testimony. On direct examination, Dr. Ajl testified that he is a licensed pediatrician, and at the time of trial, had been practicing for approximately thirty years. (T. 1068:5-13.) He was the medical director of the Jane Barker Child Advocacy Center in Brooklyn, New York, which focused on treating and investigating cases of sexual abuse against children. (T. 1069:1-11.)

         Dr. Ajl reviewed the medical reports related to the case, examined the photographs taken by Dr. Lombardy with the colposcope and read Dr. Lombardy's testimony. (T. 1077:2-14.) Dr. Ajl opined that the medical evidence was insufficient to establish that C.L. had been anally penetrated. (T. 1080:13-24.) Dr. Ajl explained that:

the “smoothing of the [rectal tissue] and flattening of the [rectal tissue] and the dilatation of the anus, were findings on which the conclusion was based that there was chronic penetration. The current state of the scientific understanding of those findings is that those findings are not findings which are diagnostic, . . . for children who were anally penetrated. They are findings which could be normal findings, they are findings which could result from irritation or unspecific infection. They are not findings which are, as I said, which are accepted by the medical child abuse community and substantiated by scientific literature to be findings that are diagnostic of chronic penetration.

(T. 1082:1-15.) On cross-examination, Dr. Ajl stated that he could not opine that C.L. had not been sexually abused. (T. 1084:7-8, 1093:13-16.) The assistant district attorney (“ADA”) asked Dr. Ajl if there are cases where a child has been sexually abused, but there is no medical evidence showing the abuse. (T. 1087:5-7.) Dr. Ajl agreed that such cases exist. (T. 1087:8.) Dr. Ajl also admitted that smoothing of the folds of the rectal tissue may indicate that anal penetration has occurred. (T. 1089:25-1090:4.) The ADA highlighted that Dr. Ajl did not examine or speak with C.L. and that his opinions were based only on reviewing the documents and testimony. (T. 1092:8-18.)

         iv. Dr. Lombardy's rebuttal testimony

         Because Dr. Ajl opined that Dr. Lombardy's findings were not indicative of anal penetration, the Trial Court allowed Dr. Lombardy to explain why she disagreed with Dr. Ajl's opinion. Dr. Lombardy testified that:

the smoothing in and of itself is not diagnostic; no finding in sexual abuse is. Very few findings actually, I should say, are diagnostic. Diagnostic is something like, you come in, you're in an accident, you come into the hospital. You've got a bone sticking out of your arm. . . . [If] [i]t's not sticking out of your arm. We do an x-ray. That's diagnostic. That's very clear cut. Most things in medicine are not clear-cut like that. But what this child had was more than smoothing, which is very suspicious for child abuse. He had smoothing with easy dilatation with an asymmetry to different aspects of the rectum, which is usually symmetrical on any side. Whether you look from front to back or side to side, there is always symmetry there. And he had protrusion of the rectal tissues from the wall of the rectum into the rectal vault. That's four aspects of very suspicious findings in one patient. That is all I personally need to make that, with a disclosure of having been penetrated rectally. That's what I need, what I feel any physician would need, to make a diagnosis of sexual abuse.

(T. 1234:19-1235:18.)

         v. Dr. Herrera testimony

         On direct examination, Dr. Herrera testified that he is a licensed physician, specializing in pediatrics, and at the time, owned a private pediatric practice in Freeport, New York. (T. 602:10- 604:3.) C.L. became a patient of his practice in February of 2004. (T. 605:5-10.) On July 1, 2005, C.L.'s parents brought him in for a visit because they believed that “a penis was inserted in C.L.'s rectum.” (T. 607:6-610:5.) When C.L. spoke with Dr. Herrera, he explained how the sexual abuse had occurred. (T. 610:10-611:5.) Dr. Herrera then visually examined C.L. to determine whether he had signs of sexual abuse, but found none. (T. 611:10-11.) Dr. Herrera explained that his examination was inconclusive because he did not have a colposcope, which is necessary to determine whether there are signs of sexual abuse. (T. 611:12-612:9.) Given the nature of the reason for C.L.'s visit, Dr. Herrera recommended that C.L.'s parents take him to an emergency room for a more thorough examination and he called the police as well as ACS. (T. 612:19-613:22.)

         On cross-examination, Petitioner's counsel asked Dr. Herrera if he would agree that appropriate medical protocol in a case of suspected sexual abuse of a child requires a physician to interview the child outside of the parents' presence. (T. 616:13-25.) Dr. Herrera disagreed. (T. 616:25.) Petitioner's counsel highlighted that Dr. Herrera's examination revealed no signs of sexual abuse. (T. 618:16-619:18, 624:12-15.) Dr. Herrera explained that even though the examination revealed no signs of sexual abuse, he called the police and recommended further evaluation because his examination was insufficient to determine conclusively whether C.L. had been sexually abused. (T. 623:15-624:23.)

         vi. Detective Trujillo testimony

         Before Detective Trujillo's direct examination, the ADA moved in limine to exclude Petitioner's counsel from questioning Detective Trujillo about prior allegations accusing him of coercing confessions. (T. 639:8-640:13.) The Trial Court denied the motion and stated that it would address the issue if it arose. (T. 640:14-17.)

         On direct examination, Detective Trujillo testified that he had been employed with the NCPD for over twenty years, eleven of which were as a detective. (T. 642:15-22.) At the time, he was assigned to the Special Victims Squad, which consisted of “a group of detectives that investigate cases of a sexual nature.” (T. 642:23-643:5.) Within the Special Victims Squad, there was a subgroup of detectives called the Child Abuse Section that specifically investigated alleged sexual offenses against children under the age of thirteen and Detective Trujillo was a member of that subgroup. (T. 643:2-20, 646:7-10.) He had specialized training in investigating alleged sexual offenses against children and a certification for interpreting and translating Spanish to English. (T. 644:1-645:1, 651:8-24.)

         The NCPD assigned Petitioner's investigation to Detective Barbieri and assigned Detective Trujillo to assist her because she did not speak Spanish and was not a member of the Child Abuse Section. (T. 646:4-6, 648:4-8.) After Detective Trujillo learned that the case involved allegations of sexual abuse of C.L., he made arrangements to interview C.L. (T. 646:11-647:11.) Detective Trujillo interviewed C.L. on July 20, 2005, and DeLopez was present during the interview. (T. 650:19-25, 652:1-13.) C.L. told Detective Trujillo the specific circumstances surrounding the alleged sexual abuse and how it occurred. (T. 655:11-656:14.) Detective Trujillo also spoke to DeLopez, who provided him with all the information she had concerning the allegations. (T. 653:8-654:13.) Based on his conversations with C.L. and DeLopez, Detective Trujillo decided to arrest Petitioner. (T. 659:13-19.)

         On July 21, 2005 at approximately 9:40 PM, Detectives Trujillo and Barbieri brought Petitioner to the police station for questioning. (T. 659:20-663:24.) Detective Trujillo sat at his desk in the detectives' office, Petitioner sat across from him, unrestrained, Detective Barbieri was a few feet away at her desk and another detective that was not involved in Petitioner's investigation was approximately ten feet away at his desk. (T. 665:15-667:15.) Because Detective ...


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