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Gonzales-Martinez v. Kirkpatrick

United States District Court, E.D. New York

September 6, 2017

Jairon Gonzales-Martinez, Petitioner,
v.
Michael Kirkpatrick, Respondent.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         Jairon Gonzales-Martinez (hereinafter “petitioner”) petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted of murder in the second degree (N.Y. Penal Law § 125.25); attempted murder in the second degree (N.Y. Penal Law § 125.25, as modified by Penal Law § 100.05(3)); assault in the first degree (N.Y. Penal Law § 120.10(1)); gang assault in the first degree (N.Y. Penal Law § 120.07); and assault in the second degree (N.Y. Penal Law § 120.05(2)). Petitioner was sentenced to a period of incarceration of 20 years to life for the murder charge; a determinate, concurrent sentence of ten years' incarceration and five years' post-release supervision for the attempted murder, first-degree assault, and gang assault charges; and a determinate sentence of three years' incarceration and three years' post-release supervision for the second-degree assault charge. In sum, petitioner received a sentence of 33 years to life of imprisonment with five years' post-release supervision.

         In the instant habeas petition (“Pet., ” ECF No. 1), petitioner challenges his conviction and sentence, claiming that his constitutional rights were violated on the following grounds: (1) the trial court committed reversible error when it improvidently exercised its discretion by admitting into evidence autopsy photographs of the decedent when the defense did not contest the cause or time of death; (2) the trial court committed reversible error when it permitted a prosecution witness to testify that petitioner exchanged gang signs with other individuals without having established the proper foundation for such testimony; (3) the prosecution failed to prove petitioner guilty beyond a reasonable doubt, and petitioner's conviction was against the weight of the evidence; and (4) petitioner's sentence, the aggregate of which was a period of imprisonment of 33 years to life, was harsh and excessive and should be modified in the interest of justice. (Pet. at 2.) For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.

         I. Background

         A. Facts

         The following facts are adduced from the instant petition and underlying record.

         On the night of June 4, 2011, petitioner and Abraham Orellana, both patrons of the Fiesta Pool Hall at 1219 Suffolk Avenue in Brentwood, had an argument that ended in Mr. Orellana's hospitalization. (T.[1] 922-936.) The argument began because of petitioner's and his friends' alleged membership in the MS-13 gang. (T. 1241.) Because petitioner's group and Mr. Orellana's group “shouldn't be in the same place, ” the argument ensued. (T.1250.) The argument became physical outside of the bar, and ended after someone struck Mr. Orellana in the head with a brick. (T. 1252; 1524-25.) At this point, petitioner and his friends fled, and Mr. Orellana was transported to a hospital. (T. 1253; 1525.) At the hospital, Mr. Orellana was treated for a laceration above his right eye, a mark on his nose, and a cut to his mouth, which medical records attributed to being struck in the head by a rock. (T. 1979.)

         Approximately 15 minutes later, Jose Valasques, who witnessed the attack, was outside the bar calling for a cab when petitioner and a group of people walked towards the bar carrying bats and iron bars, yelling, “You want to die, you sons of bitches.” (T. 1254, 1524-29.) At this point, Mr. Valasques reentered the bar, where Jorge Martinez, the bouncer and a witness to the attacks, closed the door to prevent both entry and exit. (T. 1258; 1529.)

         Petitioner and his group continued their approach toward the Fiesta Pool Hall, where they surrounded Ramiro Garcia and Rumaldo Bethancourt-Lopez, who pleaded for the group to “not do anything to them, that they didn't want to have problems and not to kill them.” (T.1537.) Petitioner and his cohorts then began striking Mr. Garcia and Mr. Bethancourt-Lopez in their heads with bats and pipes. (T. 1256.) The group also began kicking their victims. (T. 1257.) During the attack, the victims could be heard crying for help. (T. 1573.)

         As the victims were on the ground, petitioner and his group went to the door of the establishment and demanded that Mr. Martinez come out; they then broke the bar's door and fled. (T. 1257.) Mr. Valasques identified petitioner as the individual responsible for jamming an iron bar about sixty inches in length into the door. (T. 1539.) After the group and petitioner fled, Mr. Martinez allowed the occupants to leave the pool hall, where he discovered that one victim, Mr. Garcia, was alive, while the other, Mr. Bethancourt-Lopez, lay dead. (T. 1259.)

         At the time of the second attack, Suffolk County Police Officer Kenneth Meyerback was parked on the side of Suffolk Avenue near Willoughby Street when a lady in a car alerted him that “there [was] a fight going on at the bar back that way, ” at about 1:40 a.m. (T. 1049.) As Officer Meyerback approached the Fiesta Pool Hall, he saw several people outside and two Hispanic males running by him in a westbound direction toward Bergen Street. (T. 1051-1053.) One individual was in a white t-shirt, while petitioner was in a black t-shirt with a graphic design. (T. 1052.) Another woman told Officer Meyerback that “those two guys that are running, get them, they just beat somebody with a bat.” (T. 1058.) Hearing this, Officer Meyerback then turned his car around in pursuit of the two individuals that he saw make a right onto Bergen Street. (T. 1060.)

         After turning right onto Bergen Street and not seeing the fleeing individuals, Officer Meyerback then proceeded to Glenmore Avenue where he saw petitioner, in a dark shirt, running while looking over his shoulder. (T. 1060-61.) As Officer Meyerback turned left onto Glenmore Avenue, petitioner then ran into a backyard. (T. 1061.) Officer Meyerback followed petitioner into the backyard; however, upon not being able to see petitioner and hearing a dog barking in a neighboring yard, Officer Meyerback returned to his car and proceeded to Evergreen Street, which runs parallel to Glenmore Avenue. (T 1062-63.) While proceeding down Evergreen Street, petitioner darted out in front of Officer Meyerback's patrol car. (T. 1063.) At this point, Officer Meyerback chased petitioner on foot past two or three houses before tackling him and placing him under arrest. (T. 1064.)

         While petitioner was in custody and sitting in the passenger seat of the police car, Officer Meyerback performed a quick weapons search and observed what appeared to be blood on petitioner's pants. (T. 1069- 70.) Then, petitioner's phone began to ring, so Officer Meyerback took the phone, without opening or looking through it, into his possession until he transferred it to homicide detectives present at the Fiesta Pool Hall. (T. 1097-98.) Officer Meyerback then returned to Fiesta Pool Hall, with petitioner, “to find out what had happened at the pool hall and if [petitioner] had been involved.” (T. 1071.)

         At the pool hall, Mr. Martinez and Mr. Valasques both identified petitioner, who was sitting in the police car, as one of the assailants. (T. 1261-63, 1542.) Furthermore, Mr. Martinez identified petitioner by his nickname “Mapache, ” as well as two other assailants whom he had seen before and knew as “Sombra” and “Cuervo, ” but who were not present at the scene. (T. 1260, 1266.) Among the items recovered just outside of the door of the pool hall near the victims were three branches, a metal bar, two baseball bats, one pool cue, and two pool balls. (T. 1455-56.) Suffolk County Police Detective Timothy Kelly was unable to obtain fingerprints from any of the items. (T. 1457.)

         Mr. Garcia, the survivor of the second attack, was taken by ambulance to Southside Hospital. (T. 922, 1692.) Mr. Garcia's injuries included lacerations and contusions to the face, fractures of the facial bones and skull, and contusions to the lungs, which resulted in Mr. Garcia's comatose state for a period of time. (T. 1982, 1694.) Accordingly, Mr. Garcia's medical records indicated that his injuries were consistent with being “struck with a baseball [sic] and pipe.” (T. 1983.)

         Mr. Bethancourt-Lopez, the decedent, had been injured so badly that his “face and head were beaten beyond recognition, ” according to Suffolk County Police Officer Michael Levy. (T. 967.) In fact, his autopsy revealed that Mr. Bethancourt-Lopez suffered severe injuries to the face and scalp, and that these injuries were consistent with blunt impact injuries to the head. (T. 1909.) Besides abrasions and contusions, there were also fractures of the facial bones and skull, injuries to the brain, and lacerations to the scalp. (T. 1909.) Also, evidence of patterned contusions, which take the shape of the object used to create the injury, was present on the decedent's torso. (T. 1909.) The internal examination showed “blunt impact injuries of the internal organs, most markedly of the brain, ” which had contusions in multiple areas, and lacerations and hemorrhages in the brain's white matter, suggesting a widespread brain injury. (T. 1917.) Furthermore, fractures were discovered in cartilage of the neck along with contusions to the lungs and the testes. (T. 1917-18.)

         Dr. Hajar Sims-Childs, the Deputy Medical Examiner who conducted Mr. Bethancourt-Lopez's autopsy, concluded that a “fracture of the face and skull would be caused by significant force.” (T. 1918.) Dr. Sims-Childs further concluded that “blunt impact injury” to the head caused the victim's death, and that the injuries were consistent with being struck by baseball bats and a metal pipe. (T. 1918.) In fact, Dr. Sims-Childs found that the square metal pipe recovered outside of the pool hall was consistent with the rectangular patterned contusions found on Mr. Bethancourt-Lopez's chest. (T. 1941.) In addition, the baseball bats recovered were consistent with the injuries on Mr. Bethancourt-Lopez's left arm. (T. 1942.)

         Surveillance video was unrecoverable from the Fiesta Pool Hall; however, video was recovered from the El Salvador Deli and Precision Driving School, both of which are located west of the pool hall. (T. 1185, 1186, 1193.) Although none of the camera angles showed the actual attack, several angles captured petitioner and his cohorts both before and after the two attacks. (T. 1721-79; 1175.) In one video from the deli taken hours before the attack, Suffolk County Police Detective John McLeer identified petitioner, also known as “Mapache, ” in a dark shirt; along with Jeovani Guzman-Hernandez, also known as “Sombra, ” in a white shirt; and Walter Cruz, also known as “Cuervo, ” in a white shirt. (T. 1721-27.) In this same video, Detective McLeer said that all three individuals were “throwing signs, ” or gang signals. (T. 1745-46.)

         The recovered surveillance video timestamped immediately after the first assault of Mr. Orellana showed petitioner and his friends leaving the area and, as petitioner was walking away, petitioner dropping an object to the ground. (T. 1766.) About 15 minutes later, petitioner and two other men approached the Fiesta Pool Hall, each holding objects presumed to be weapons, such as a long metal bar. (T. 1779, 2445.) After the murder, at least five individuals could be seen running away, immediately followed by a police car: two individuals first, followed by another two individuals, and then petitioner, immediately followed by Officer Meyerback's police car, which turned left onto Glenmore Avenue. (T. 1780-81.)

         A warrant was obtained to recover data from petitioner's cell phone. (T. 1699, 1703.) An analysis of petitioner's cell phone, which was immediately recovered by Officer Meyerback, showed calls were made to Guzman-Hernandez's phone on June 4, 2011 at 3:26 p.m. (T. 2025.) Furthermore, incoming calls from Guzman-Hernandez's phone to petitioner's were answered as late as 1:37 a.m. on June 5, 2011. (T. 2027.) Thirteen unanswered calls from four numbers, including Guzman-Hernandez's number, were also present in the missed calls log of petitioner's phone, some of which were timestamped immediately preceding the murder. (T. 2027-30, 2448.) Indeed, Guzman-Hernandez's number was in petitioner's contacts under the name “Sobar.” (T. 2031.)

         An analysis of Guzman-Hernandez's phone revealed that calls were made to his phone from petitioner's phone on several occasions. (T. 2033.) Specifically, petitioner's number under the name “Mapache” could be found in his outgoing calls log. (T. 2034.)

         DNA testing of Mr. Bethancourt-Lopez's clothing revealed blood on a boot matching Mr. Garcia's DNA profile. (T. 2099.) In addition, blood on Mr. Garcia's shoe matched Mr. Bethancourt-Lopez's profile. (T. 2102.) A red metal bat recovered at the scene had blood matching Mr. Garcia's profile. (T. 2103.) Further, the handle of that same bat had blood matching Mr. Bethancourt-Lopez's profile (T. 2104), and the metal pipe had blood that matched Mr. Garcia's profile (T. 2104). The other bat recovered, a Louiseville Slugger, had blood on the barrel and handle that matched Mr. Bethancourt-Lopez's profile. (T. 2105.) Of two sticks recovered at the scene, one had both victims' DNA profiles, while the other had just Mr. Garcia's profile. (T. 2105-2106.)

         DNA testing of petitioner's clothes showed that both victims' blood was present. (T. 2106-2111.) Specifically, a bloodstain on petitioner's shoe matched that of Mr. Garcia's profile. (T. 2107-08.) Moreover, the blood found on petitioner's jeans matched that of the decedent's profile. (T. 2106.) Regarding the samples that matched Mr. Bethancourt-Lopez's DNA, the probability of a randomly selected, unrelated individual having a DNA profile matching that of the blood stains are one in 523 quintillion. (T. 2109.) As for the samples that matched Mr. Garcia's DNA, the probability of a randomly selected, unrelated individual having a DNA profile matching that of the stains are one in 2.15 quintillion. (T. 2111.)

         Along with the DNA analysis, the stains found on petitioner's clothing revealed bloodstain patterns on the black jeans and each sneaker, but not the t-shirt. (T. 2249-50.) The stains found on the t-shirt appeared to be blood, but no connection to the victims was detected. (T. 2250.) However, petitioner's jeans had three bloodstains that were classified as impact spatter patterns, as were the bloodstains on his shoes. (T. 2251.) The forensics analysis concluded that the person wearing these clothes had to be in close proximity to the blood's source, i.e., the victim. (T. 2257.) Because of the way the blood was dispersed, there were impact spatter stains on a car and the door of the pool hall, while cast off patterned stains were present on the awning over the door. (T. 2277, 2281.)

         At trial, the prosecution moved to admit autopsy photographs of Mr. Bethancourt-Lopez into evidence. (T. 1922.) Upon viewing the photographs, defense counsel objected to three of them, arguing the photographs were prejudicial because “the medical examiner already indicated what the injuries” were and that the defense was not contesting the cause of death. (T. 1923-24; 1928-29.) Exhibit 90, which was a picture of Mr. Bethancourt-Lopez's face after the attack, and exhibit 96, which was a picture of Mr. Bethancourt-Lopez's removed lung, were admitted because they tended to prove the “material or disputed issue” of intent and helped the medical examiner's explanation of the decedent's autopsy, and were not “offered for the sole purpose of arousing the emotions of the jury.” (T. 1934-37.) However, exhibit 92, which was a close-up photograph of lacerations to Mr. Bethancourt-Lopez's scalp already depicted in another photograph, was not admitted into evidence. (T. 1934.)

         Also at trial, in addition to his recounting the events of June 5, 2011, Mr. Martinez testified that he had heard petitioner and his friends claim they were part of the MS-13 gang. (T. 1241.) Additionally, Mr. Martinez testified that he observed petitioner and his friends making MS-13 gang signs. (T. 1238, 1242.) After the defense objected, the trial court held that it would admit Mr. Martinez's testimony into evidence, with a limiting instruction regarding petitioner's alleged gang membership. (T. 1228-1234.)

         B. Procedural History

         On April 18, 2013, a jury convicted petitioner in the Supreme Court of Suffolk County of the following: assault in the second degree, gang assault in the first degree, assault in the first degree, attempted murder in the second degree, and murder in the second gegree. (T. 2614-17.) On May 22, 2013, petitioner was sentenced to an aggregate sentence of 33 years to life of incarceration with five years' post-release supervision. (S.[2] 15-18.)

         After sentencing, petitioner appealed his conviction and sentence to the Appellate Division, Second Department and raised the following challenges: (1) the trial court improperly admitted autopsy photographs into evidence; (2) testimony regarding petitioner's membership in a gang deprived him of a fair trial; (3) his guilt was not proven beyond a reasonable doubt and the jury's verdict was against the weight of the evidence; and (4) the sentence imposed was harsh and excessive.

         On February 3, 2016, the Appellate Division, Second Department affirmed petitioner's judgement of conviction. See People v. Gonzales-Martinez, 136 A.D.3d 651 (N.Y.App.Div. 2016). In its opinion, the Second Department held that “the legal sufficiency of the evidence [was] mostly unpreserved for appellate review.” Id. at 651. Nevertheless, in viewing the evidence in the light most favorable to the prosecution, the Second Department found there was enough evidence to find petitioner guilty beyond a reasonable doubt. Id. Moreover, the Second Department conducted an independent review of the record and determined that petitioner's conviction was not against the weight of the evidence. Id. It also held that the trial court did not err in allowing testimony regarding petitioner's gang affiliation because the probative value of that testimony outweighed any prejudice. See Id. at 652. Specifically, the court held that “the testimony was relevant to the issue of [petitioner's] motive, was inextricably interwoven into the narrative, and explained the relationships between the parties.” Id. In fact, the Second Department found that the trial court providently reduced any possible prejudice by “providing appropriate limiting instructions.” Id. Finally, the Second Department held that petitioner's remaining, unaddressed claims were without merit; this included the claims about the admitted autopsy photographs and petitioner's sentence. Id.

         On April 29, 2016, petitioner's conviction became final when the New York Court of Appeals denied petitioner's application for leave to appeal. See People v. Gonzales-Martinez, 27 N.Y.3d 997 (2016).

         C. The Instant Petition

         On September 8, 2016, petitioner moved before this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the following grounds: (1) the trial court committed reversible error when it improvidently exercised its discretion by admitting into evidence autopsy photographs of the decedent when the defense did not contest the cause or time of death; (2) the trial court committed reversible error when it permitted a prosecution witness to testify that petitioner exchanged gang signs with other individuals without having established the proper foundation for such testimony; (3) the prosecution failed to prove petitioner guilty beyond a reasonable doubt and the jury verdict was against the weight of the evidence; and (4) petitioner's sentence, the aggregate of which was a period of imprisonment of 33 years to life, was harsh and excessive and should be modified in the interest of justice. (Pet. at 2.) Respondent filed a memorandum of law opposing petitioner's application on October 19, 2016. (ECF No. 6.)

         The Court has fully considered the parties' submissions.

         II. Standard of Review

         To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides, in relevant part:

         (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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