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October 5, 2009
CARLOS CORONA, PETITIONER,v.V. M. ALMAGER, WARDEN, ET AL., RESPONDENTS.
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner was convicted of attempted murder while personally using a handgun and acting for the benefit of a street gang, and was sentenced to 42 years-to-life in state prison. He claims the prosecutor acted with a racially discriminatory purpose when exercising peremptory challenges to remove the only two African-American prospective jurors from his jury venire (Claim One), and that he was denied the right to secure the presence of a defense witness (Claim Two). (Pet. at 6-9.) Respondent has filed an Answer to the Petition, contending that habeas relief is unavailable because the adjudication of Petitioner's claims by the state courts was objectively reasonable, and has lodged portions of the state court record. (Doc. Nos. 8, 10.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Nita L. Stormes. (Doc. No. 11.) The Magistrate Judge recommends granting habeas relief as to Claim One and denying relief as to Claim Two. Respondent has filed Objections to the R&R. (Doc. No. 16.)
The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
For the following reasons, the Court ADOPTS IN FULL the Magistrate Judge's findings and conclusions with respect to Claim Two, and DENIES habeas relief as to that claim for the reasons set forth in the R&R. The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Magistrate Judge's findings and conclusions with respect to Claim One, and DENIES habeas relief as to that claim for the reasons set forth below.
I. Claim One
Petitioner contends in Claim One that his Sixth and Fourteenth Amendment rights were violated because the prosecutor exercised peremptory challenges to remove the only two African-American jurors in his jury venire. (Pet. at 6-6a.) Specifically, he contends that all three steps of the three-part test set forth in Batson v. Kentucky, 476 U.S. 79 (1986) were satisfied because the two jurors, Edmund O. and George O., were members of a cognizable racial group, the prosecutor used peremptory strikes to remove them, and the totality of the circumstances raises an inference that the strikes were motivated by race. (Pet. at 6a.) Respondent contends that the state appellate court's determination that there was "substantial evidence to support the trial court's finding of no discriminatory purpose" is objectively reasonable, and habeas relief is unavailable because the adjudication of Petitioner's claim was consistent with clearly established federal law. (Answer at 5-7.)
The Magistrate Judge found that the determination by the appellate court that the prosecutor provided race-neutral reasons for striking the two jurors was based on an unreasonable determination of the facts. (R&R at 14-19.) The Magistrate Judge also found that the appellate court's denial of the claim involved an unreasonable application of United States Supreme Court law. (R&R at 19-22.) Respondent objects to these findings, contending that the proper level of deference was not given to the findings of the state courts. (Obj. at 4-10.)
The Supreme Court, in Johnson v. California, 545 U.S. 162 (2005), which was decided on the day the Batson/Wheeler*fn1 motion was initially heard at Petitioner's trial, stated that the Batson inquiry consists of three steps which "should by now be familiar":
First, the defendant must make out a prima facie case by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose. Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination.
Johnson, 545 U.S. at 168 (internal citations, quotation marks and footnote omitted).
In Johnson the prosecutor exercised peremptory challenges to strike all three of the African-American jurors from the jury panel, and the trial judge did not seek an explanation from the prosecutor. Id. at 164-65. Rather, the trial judge in Johnson "explained that her own examination of the record had convinced her that the prosecutor's strikes could be justified by race-neutral reasons." Id. at 165. Petitioner's case here is similar. The defense objected to the fact that the only two African-American jurors on the panel were removed by the prosecutor, stating that: "I don't see anything they could have found objectionable." (Lodgment No. 2, Reporter's Tr. ["RT"] at 53-54.) The trial judge, just before the evening recess, found that the defense had not satisfied the first Batson step, and stated:
I'm not going to require [the prosecutor] to make a showing. I believe there was sufficient indiction from both witnesses that gave rise to a peremptory challenge, specifically with [George O.]. I had a substantial difficulty understanding him. I think that probably translated into a difficulty, at least not a sophistication, in understanding English to the extent we are going to need it in this case based upon what I believe to be the potential evidence. . . . With regard to [Edmund O.], made several responses to family members that had criminal history, family members from law enforcement. Also, there were some issues with regard to those facing charges and having been victims of charges. I think there was sufficient indication that a peremptory challenge was appropriate. The motion is denied. (RT 54.)
The defense requested a reconsideration of the Batson motion at the beginning of the court proceedings the next morning on the basis that Johnson had been decided the previous day. (RT 55.) The Court in Johnson invalidated California's requirement that in order to make out a prima facie case of discriminatory intent the defendant "must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias." Johnson, 545 U.S. at 168. The Court stated the proper standard as: "a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. at 170.
The trial judge in Petitioner's case indicated that he believed that he had always applied the correct Johnson standard because he had always required the prosecutor to give reasons for peremptory challenges whenever there was an inference of a discriminatory purpose. (RT 56.) The trial judge stated that he still believed that "there hadn't even been an inference of a discriminatory purpose" in Petitioner's case, and "[t]here were valid reasons that appeared to be obvious to me on the record to support the challenges" irrespective of race, but in "an abundance of caution" allowed the defense to renew the Batson motion. (RT 56-57.) The defense replied that:
Your honor, first of all, when the court says the manner in which the question posed to them was answered, I didn't see anything. They were both polite, well dressed, well groomed, appearing to be middle-class African-American males. [¶] Edmund O. did indicate that he had in his family people that were actually victims of gang violence. He also indicated that he had people in his family that were connected to law enforcement. [¶] I personally didn't see any race-neutral explanation from what we knew about these two people, which wasn't very much, admittedly. [¶] I don't think there was -- and they were the only two African-American people on the entire panel. So I think with that, there is an inference that it was race-based. (RT 57.)
The trial judge then stated that: "I'll reiterate what I said yesterday," and continued as follows:
The impression I got [from Edmund O.] certainly was that he was born in this country and raised in this country. [¶] The impression I got from [George O.] was -- just based upon what I perceived to be a very thick accent, I, at times, had some difficulty understanding him. He probably immigrated to this country and -- is of African descent and immigrated to this country. Not the fact that he's Black or immigrated, but the difficulty I had in understanding him, notwithstanding the responses, would, in my mind, probably make him not the appropriate juror for this particular case given the facts of this case. [¶] There are a series of, from what I recall, some relatively complex issues that the jury is going to have to resolve in the matter with regard to the sales of the cars and people coming over and what they were doing. I thought there was a basis for it. . . . I'm going to have the prosecutor go ahead and indicate his thoughts so that we make sure that we cover what Johnson seems to require. (RT 58.)
The prosecutor then stated:
With respect to [George O.], I echo the court's thinking on it. That's what I had noted. [¶] Also, in my mind, I had thought -- because of the responses that he gave and the way that he gave them, I had trouble understanding him. I felt that English was not his first language, at least it appeared to me to be the case from when he answered questions in court.
Because of the nature of this case, there's going to be a lot of -- I think the court is right on that. There's going to be a lot of terminology. This case is going to be a lot based on street slang terms regarding the Mexican Mafia that I think it's going to be difficult for someone who English is not their first language to maybe get up to speed on that and maybe comprehend that as much as a person who does not have a language difficulty. That was the primary reason I kicked him. [¶] The other reason was that I just didn't get a feeling from him. I didn't hear a lot from him as far as someone who stood out to me as someone who would be a good juror for me. [¶] The other people -- and I think there are cases -- I don't have them off the top of my head, but there are cases that state that it's a proper reason. I had people behind him that were -- that I wanted to get on to the jury more, people that I felt would be better jurors. I think that's a proper reason in and of itself, although not the primary reason, as I stated before. The primary reason was the language barrier. * * *
The big thing I noted with [Edmund O.] was that while he did have relatives in law, he had three cousins, I think, that were murdered. And then when we explored that more in depth with him, he actually said he had family members that were Crips. [¶] To me, just the nature of this case and the fact that he's had such close ties with the issues that are going to surround this case, being that he had family members who were murdered and that he had family members who were Crips -- and my understanding from it, the inference that I drew was that the murders and the family members who were Crips were somehow related. That may have been an inference that I drew, but it was one that I drew. There was a relation. These weren't completely separate incidents.
And so based on those things, I felt -- he also stated -- I noted that he said that the cops knew who did it. And he obviously didn't -- I don't think he expressed animosity towards the police. I didn't get that feeling. But I just thought that added into sort of the whole picture as someone who was just not right for this case. [¶] In addition, I would note the order of these two men. And I think that is another factor to consider. They were seated right next to each other in line. It's true that they were the only two African-American men on the panel. But had one been No. 1 and the other been No. 50, I think it was basically because they were next to each other that then obviously they are in a position where they are going to get -- they are ripe for going to be kicked. Had one been No. 50, I don't think we would have ever gotten to that issue. (RT 58-61.)
Defense counsel and the trial judge then had the following exchange:
Defense: Your Honor, first of all, [George O.], I personally had no problem understanding [George O]. It may be because I have an accent as well.
The Court: No.
Defense: And certainly someone having an accent, I don't think that's a legitimate reason for exercising a peremptory. [¶] There were absolutely no questions asked by anyone as to whether he had sufficient command of the English language. So we really don't know about that. We are drawing conclusions. The prosecution and the court is [sic] drawing conclusions from his accent. [¶] I would point out that an accent does not necessarily indicate that the person doesn't have a command of the language or doesn't understand. [¶] In regards to --
The Court: Let's say, for example, that you are right and [the prosecutor] is mistaken in that assumption; that it's an incorrect assumption. I don't believe that it was in this particular case. But for the sake of argument, let's say that it was an incorrect assumption. [¶] Does that mean that because he exercises the challenge based upon a good faith belief that that's what would take place, that he should be penalized for it with the loss of the panel that was picked? I don't think that, in and of itself, smacks of a discriminatory reason in the rejection.
Defense: Your Honor, it would appear to me if he had been concerned about that, he would have asked some questions about that.
The Court: Okay.
Defense: In regards to [Edmund O.], again, there was certainly no animosity towards law enforcement that was expressed. The fact that he had both family members who were murdered and family members that were gang members, I think that cancels each other out. [¶] The man was, I believe, a school custodian for a long period of time. I believe his brother-in-law is in law enforcement. His friend's daughter is a police officer. He's holding a city job. I don't think that's the type of person that would be hostile to the prosecution's arguments. [¶] Again, not enough questions were asked of him; what his feelings are, whether or not he could given an impartial consideration of the evidence relating to gangs in this case. So I still submit that the challenges were made improperly, in violation of Batson. [¶] The fact that they were sitting next to each other, they were drawn at random. I don't see how that adds anything to the prosecution's argument.
The Court: Thank you. [¶] The motion is denied. (RT 61-62.)
Thus, the trial court found that the defense had not satisfied the first step of the Batson inquiry because counsel had not shown a prima facie case of discrimination, but allowed the prosecutor to state his reasons on the record out of an abundance of caution. The appellate court, following a lengthy discussion, agreed that no prima facie case had been shown, concluding that:
Based on the trial court's assessment that race-neutral reasons for the exclusion were obvious, combined with the lack of racial ties between the excused jurors, the defendant, and the victim, there is substantial evidence to support the trial court's finding that Corona did not make a prima facie showing of discriminatory purpose.*fn2 (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 15 (Cal.Ct.App. Oct. 26, 2006).)
The appellate court alternately found, after a lengthy discussion, that, assuming a prima facie case had been presented:
We conclude the trial court made a sincere and reasoned effort to evaluate whether the peremptory challenges were exercised for race-neutral reasons, and there is substantial evidence to support the trial court's finding of no discriminatory purpose.
(Id. at 18.)
The Magistrate Judge correctly found, citing Hernandez v. New York, 500 U.S. 352, 359 (1991), that the first step of the Batson inquiry was rendered moot when the prosecutor provided race-neutral reasons for exercising his strikes and the trial judge ruled on the ultimate issue of intentional discrimination. (R&R at 13.) The Court adopts this finding and will move on to the second Batson step.
The second Batson step requires that "once the defendant has made out a prima facie case, 'the burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes." Johnson, 545 U.S. at 168, quoting Batson, 476 U.S. at 94. The Magistrate Judge found that the second Batson step had been satisfied because the prosecutor gave facially race-neutral reasons for exercising both peremptory strikes. (R&R at 14.) For the following reasons, the Court adopts these findings.
Petitioner here was found guilty of attempted murder for the benefit of a street gang. (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 1.) Evidence was presented that Petitioner was a gang member who shot another gang member five times at close range at the behest of the Mexican Mafia gang leadership in connection to a drug debt. (Id. at 2-4.) The Magistrate Judge correctly found that the reasons for striking Edmund O. were facially race-neutral. As set forth above, the prosecutor indicated that Edmund O. had informed the court that he had three cousins who had been murdered, and had family members who belonged to the Crips street gang. In addition, Edmund O. said he had been told by the police that they knew who had murdered his family members but did not have sufficient evidence to bring charges, and the prosecutor drew an inference that the murders were somehow related to the family's gang membership. The Court adopts the Magistrate Judge's finding that the prosecutor offered facially race-neutral reasons for challenging Edmund O., satisfying the second Batson step.
The prosecutor indicated that the "primary" reason he struck George O. was due to a perceived difficulty in understanding English coupled with the fact that the case involved street slang and gang terminology. (RT 58-59.) The prosecutor also indicated that: "I didn't hear a lot from him as far as someone who stood out to me as someone who would be a good juror for me," and indicated there were other jurors on the panel behind George O. he preferred. (RT 59.) As set forth in the R&R, case law supports a finding that difficulty with language has been held to be a valid race-neutral reason to exercise a peremptory strike. (R&R at 14.) The Court adopts the finding of the Magistrate Judge that the prosecutor offered facially race-neutral reasons for challenging Edmund O., and that the second Batson step was satisfied.
The third Batson step provides that "'[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" Johnson, 545 U.S. at 168, quoting Purkett v. Elem, 514 U.S. 765, 767 (1995). "[A] federal habeas court can only grant [the] petition if it was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge." Rice v. Collins, 546 U.S. 333, 338 (2006). "[A] state court's finding of the absence of discriminatory intent is 'a pure issue of fact' accorded significant deference," which "is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations." Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). "[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Id. at 340.
The Magistrate Judge found that the state court's determination that the prosecutor did not act out of a discriminatory purpose was based on an unreasonable determination of the facts, and separately concluded that the appellate court's adjudication of Petitioner's Batson claim involved an unreasonable application of clearly established federal law. (R&R at 14-22.) Because Respondent has objected to these findings and conclusions, the Court will conduct a de novo review of these portions of the R&R. For the following reasons, the Court declines to adopt the findings and conclusions of the Magistrate Judge with respect to the third Batson step, and finds that habeas relief is not available as to Claim One.
a) Unreasonable Determination of the Facts
The Magistrate Judge found that the appellate court's conclusion that the prosecutor and trial judge drew legitimate inferences from George O.'s accent that he lacked proficiency in the English language was based on an unreasonable determination of the facts. (R&R at 15.) The Magistrate Judge noted that a thick accent does not automatically translate into lack of language proficiency, and that the record here supports the opposite conclusion, that George O. was proficient in English. (Id.) This finding was based on his grammatically correct responses on voir dire, the lack of pauses in the proceedings or requests by the court reporter to repeat answers, the fact that he was employed in the manufacturing field which established that he could speak and understand English sufficiently to hold a job, and "most importantly" because no one inquired into his English proficiency. (Id. at 15-16.) Thus, the Magistrate Judge found there were no objective, factual grounds in the record to support the finding that the strike appropriately rested on an inability to speak or understand English. (Id.)
Respondent objects to these findings, contending that both the trial judge and the prosecutor had difficulty understanding George O., and therefore the problem was self-evident, not requiring additional inquiry. (Obj. at 5.) Relying on Hernandez v. New York, Respondent contends that this Court should not substitute its judgment for the judgment of the trial and appellate courts where, as here, there was nothing inherently discriminatory about the stated reasons. (Id., citing Hernandez, 500 U.S. at 360 (stating, with respect to step two of the Batson inquiry, that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral.").) The passage cited to by Respondent from Hernandez does not apply with respect to the third Batson step, where "a court must undertake 'a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Batson, 476 U.S. at 93, quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 262 (1977). With respect to the third step, the Court may consider any "relevant circumstances" which bear on the issue of whether the prosecutor used the peremptory challenges with a racially discriminatory intent. Batson, 476 U.S. at 96.
The entirety of the statements George O. made in court were his brief oral answers to the written voir dire questions, which had been orally answered by 24 jurors before him:
Prospective Juror [George O]: Manufacturing.
No children.
No prior jury duty No friends in law enforcement and legal profession I think I can be fair.
(Lodgment No. 3, Augmented RT. at 44.)
The experienced trial judge here indicated that, based on what he perceived to be a thick accent, he had difficulty understanding George O. (RT 58.) The judge explained that "the difficulty I had in understanding him, notwithstanding the responses, would, in my mind, probably make him not the appropriate juror" in a case with "relatively complex issues that the jury is going to have to resolve . . ." (Id.) (emphasis added). Thus, the record indicates the trial judge took into consideration George O.'s "grammatically correct" responses to the voir dire questions when drawing the inference. Likewise, the prosecutor drew his inference that George O. would have difficulty understanding from the content and manner in which the responses were given, stating that: "because of the responses he gave and the way that he gave them, I had trouble understanding him." (RT 58-59.) The prosecutor, arguably not in a position to judge the juror's grammar, stated that: "This case is going to be a lot based on street slang terms regarding the Mexican Mafia that I think it's going to be difficult for someone who English is not their first language to maybe get up to speed on that and maybe comprehend that as much as a person who does not have a language difficulty." (RT 59.)
The appellate court stated:
We defer to the trial court's assessment that George O.'s strong accent was readily apparent and made him difficult to understand; thus, the prosecutor could draw inferences from this fact without further questioning. The prosecutor is not required to present reasons that rise to the level of a challenge for cause, and could reasonably decide to peremptorily challenge a juror whose English was difficult to understand without further inquiry about his English language ability.
(Lodgment No. 7, People v. Corona, No. D047501, slip op. at 16-17.)
The cold record here cannot adequately convey the circumstances which were present in the courtroom which gave rise to the trial judge's finding that the prosecutor's motive in challenging George O. was genuinely race-neutral, as this Court "is not as well positioned as the trial court is to make" that determination. Miller-El, 537 U.S. at 339. If this Court were sitting as an appellate court, it might find that the prosecutor should have been required to determine the extent of George O.'s language ability. See United States v. Changco, 1 F.3d 837, 840 (9th Cir. 1993) ("So long as the prosecutor (or the defendant, for that matter) can convince the district court that the potential juror who is being struck in fact has difficulty with English, the justification is race-neutral."). However, as the Court in Hernandez noted:
Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." 476 U.S. at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 (1984).
Hernandez, 500 U.S. at 365 (emphasis added).
The present case is one where the genuineness of the prosecutor's motive with respect to George O. "lies peculiarly within a trial judge's province," and the "best evidence [is] the demeanor of the [prosecutor]." Id. The failure to inquire into George O.'s command of the English language, which may have justified the prosecutor's inference, refuted it or left the issue unresolved, is simply one factor to consider in determining whether the prosecutor's motive in exercising the peremptory challenge was motivated by race. Purkett, 514 U.S. at 769 (noting that while Batson step two looks to the reasonableness of the asserted nonracial motive, step three turns on the genuineness of the motive). As set forth above, defense counsel argued at the Batson motion that there had not been an adequate inquiry into George O.'s proficiency in English, and that if it was a legitimate concern he would have expected the prosecutor to conduct a further inquiry. (RT 61-62.) The trial judge disagreed that the prosecutor had made an incorrect assumption regarding George O.'s English proficiency, but took that possibility into consideration when making his finding that the prosecutor had a genuinely non-racial motive. (RT 61-62.) The lack of further inquiry was also identified as a valid factor for consideration in the third Batson step by the appellate court. (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 16-17.)
Thus, the trial and appellate courts considered the lack of further inquiry into George O.'s English proficiency before ruling on the ultimate issue of discriminatory intent. The fact that the prosecutor did not inquire further into George O.'s proficiency in English, but based his inference on George O.'s thick accent, which even the trial judge found difficult to understand, does not provide sufficient evidence to rebut the state courts' findings regarding the genuineness of the prosecutor's motives. Although it is one factor to be considered, it is not strong enough, either standing alone or in conjunction with the other factors this Court must consider, which includes the fact that Petitioner was not the same race as the challenged jurors, to support a conclusion that it "was unreasonable to credit the prosecutor's race-neutral explanations for the Batson challenge." Rice, 546 U.S. at 338. Even assuming the Magistrate Judge is correct that the cold transcript of George O.'s brief voir dire establishes a proficiency in English, or that the prosecutor drew an incorrect assumption in that regard, it is the trial judge's credibility determination, to which the appellate court deferred based on the trial judge's "sincere and reasoned effort to evaluate whether the peremptory challenges were exercised for race-neutral reasons," (id. at 18), which is entitled to deference, and to which this Court "is not as well positioned as the trial court is to make." Miller-El, 537 U.S. at 339. The fact that reasonable jurists can disagree on this issue is further support for a finding that the state appellate court did not base its decision on an objectively unreasonable determination of the facts.
Although the lack of further inquiry into George O.'s English proficiency was the "most important" factor considered by the Magistrate Judge in demonstrating that the appellate court based its decision on an unreasonable determination of the facts, the R&R also found a lack of support for the prosecutor's stated reason that George O. would have trouble understanding gang terminology and street slang since the prosecutor indicated that all the jurors were going to be presented with expert testimony in order to understand the complex issues in the case related to street slang. (R&R at 16.) Respondent objects to this finding, contending it fails to acknowledge a difference between explaining confusing terminology and truly understanding the subtleties involved in a language, a distinction which sometimes requires a translator to be in court even when a witness has a working understanding of the relevant language. (Obj. at 5-6.)
The introduction of expert witness testimony, particularly with respect to gang culture, has been acknowledged as important to assist juries for reasons independent from considerations of language ability. Briceno v. Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009), citing People v. Olguin, 31 Cal. App. 4th 1355, 1371 (1994) ("The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact . . ."). The necessity to present expert testimony regarding gang culture and slang was due to an expected lack of sophistication of the jurors with gang culture, something common to all jurors. That concern was compounded by George O.'s perceived lack of sophistication with the English language which would make it more difficult for him to understand that information. This factor does not support a finding of pretext, and the Court declines to adopt the Magistrate Judge's finding in this regard.
The Magistrate Judge also found pretext arising from the other reason the prosecutor gave for striking George O., namely, that: "that I just didn't get a feeling from him. I didn't hear a lot from him as far as someone who stood out to me as someone who would be a good juror for me." (RT 59.) The Magistrate Judge found that this reason was "both without tangible support in the record and unbelievable," because there were no additional questions asked of George O. regarding his beliefs and experiences. (R&R at 16.) It is true that there were no follow-up questions asked of George O. following his initial responses that he worked in manufacturing, was single without children, had no prior jury experience and no friends in law enforcement, and thought he could be fair. (Lodgment No. 3, Augmented RT at 44.) However, the lack of follow-up questions to George O. does not support a finding of racially discriminatory motive for the reasons discussed above. In addition, the prosecutor was entitled to rely on his "feeling" regarding George O.'s ability to serve as a juror based on the answers given to the written voir dire questions. Burks v. Borg, 27 F.3d 1424, 1429 & n.3 (9th Cir. 1994) (noting that prosecutor's evaluation of a juror's demeanor, tone, and facial expression may lead to a "hunch" or "suspicion" that the juror might be biased, and that a peremptory challenge based on this reason would be legitimate.), citing, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148 (1994) (O'Connor, J., concurring) ("[A] trial lawyer's judgments about a juror's sympathies are sometimes based on experienced hunches and educated guesses, derived from a juror's responses at voir dire or a juror's 'bare looks and gestures.'"); United States v. Bauer, 84 F.3d 1549, 1555 (9th Cir. 1996) ("Peremptory challenges are based upon professional judgment and educated hunches rather than research."). The fact that the prosecutor expressed a feeling that George O. would not be a good juror for him based on what he heard on voir dire without inquiring further does not, alone or in conjunction with the other factors, support a finding of pretext, and the Court declines to adopt the Magistrate Judge's findings and conclusions in this regard.
Respondent also objects to the finding and conclusions in the R&R that Ninth Circuit authority, namely Green v. Lamarque, 532 F.3d 1028 (9th Cir. 2008), Kesser v. Cambra, 465 F.3d 351 (9th Cir. 2006) and McClain v. Prunty, 217 F.3d 1209 (9th Cir. 2000), support a finding that the prosecutor's proffered reasons were pretextual. (Obj. at 6.) These cases are distinguishable from Petitioner's case because they either involve instances where the prosecutor offered reasons which did not exist, see Kesser, 465 F.3d at 363-65; McClain, 217 F.2d at 1221-22, involved overtly race-based reasons, see Kesser, 465 F.3d at 362, involved internally inconsistent reasons, id. at 367, or involved situations where comparative analysis demonstrated obvious pretext, see Green, 532 F.3d at 1031-33; Kesser, 465 F.3d at 362-71; McClain, 217 F.3d at 1221-23. Here, the fact that George O. was difficult for the trial judge and the prosecutor to understand due to his thick accent is established by the record, and as set forth above is facially race-neutral. The inference drawn from that fact that George O. had a thick accent, namely, that English was probably not George O.'s first language and he might have difficulty understanding and making himself understood, is not in any manner overtly racist. The Magistrate Judge's finding that these cases support habeas relief was based on the earlier finding, which the Court has declined to adopt, that the failure to inquire into George O.'s proficiency in English demonstrated that the prosecutor's stated reason that he would have difficulty understanding English sufficiently to serve as a juror was a pretext. However, for the reasons discussed above, the Court finds that evidence to be insufficient to satisfy Batson's third step. The Court declines to adopt the Magistrate Judge's finding that the state appellate court's adjudication of Claim One was based on an unreasonable determination of the facts.
B) Unreasonable Application of Clearly Established Federal Law
The Magistrate Judge found that the appellate court's adjudication of Claim One involved an unreasonable application of Batson and its progeny. (R&R at 19-22.) Respondent has objected to this finding, and the Court will conduct a de novo review of this portion of the R&R.
The Magistrate Judge found that the order in which the trial judge took the Batson steps was contrary to Batson and its progeny, and the appellate court's failure to recognize the trial court's mistake in that regard amounted to an unreasonable application of clearly established federal law. (R&R at 19.) The Magistrate Judge found the trial judge erred when he sua sponte stated that George O.'s accent, and the inference of a lack of English proficiency drawn from it, was a sufficient reason for the prosecutor's strike before ruling on whether a prima facie case had been made or before asking the prosecutor to provide a reason. (Id.) The Magistrate Judge also found that the appellate court impermissibly substituted the reasons given by the trial judge for the reasons given by the prosecutor. (Id.) As set forth above, the trial judge, in response to the defense Batson motion, indicated that the defense had not made a prima facie showing of discrimination because there were obvious race-neutral reasons in the record as to why the two jurors were struck. (RT 54.) The judge, therefore, did not require the prosecutor to state his reasons for exercising the peremptory strikes. (Id.) Upon reconsideration of the motion the day after Johnson was decided, the trial judge reiterated his finding regarding lack of a prima facie case. (RT 57-58.) Out of an abundance of caution, however, the trial judge proceeded as if a prima facie case had been stated and invited the prosecutor to state his reasons for the challenges on the record, and then denied the motion after hearing from the defense. (RT 58-62.) It therefore appears that the Batson steps were taken in the proper order.
Even if the steps were taken out of order, it is clearly established that the order of taking the Batson steps is not rigid. Rather, the Supreme Court has held that a prosecutor who gives reasons without being asked to do so by the trial judge merely renders step one moot. Hernandez, 500 U.S. at 359 ("This departure from the normal course of proceeding need not concern us.") There is no clearly established federal law which prevents the trial judge, when stating the reasons why no prima facie case has been shown, from articulating reasons why a peremptory challenge may have been motivated by reasons other than race. The Ninth Circuit's opinion in Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004), cited in the R&R as holding that the procedure used by the trial judge in this case is an unreasonable application of Supreme Court law (R&R at 19), does not support a finding that clearly established federal law was transgressed in this respect. The court in Paulino refused to defer to the appellate court's finding that there was no prima facie showing of bias, and conducted a de novo review of the issue, because the state appellate court had applied the standard rejected in Johnson. Paulino, 371 F.3d at 1090. The court found that the defendant, who was Black, had in fact made out a prima facie case of discrimination based on statistical disparities where five of the prosecutor's six peremptory challenges were used to remove five of the six Black jurors on the panel, and held that the trial court erred in relying on its own speculation as to what might have been the prosecutor's reasons and never requiring the prosecutor to explain her actual motivations for the challenges. Id. at 1090-92. The Paulino court remanded the case to the district court for a hearing in order to permit the state "an opportunity to present evidence as to the prosecutor's race-neutral reasons for the apparently-biased pattern of peremptories, and determine whether the prosecutor violated Batson." Id. at 1092. Thus, the Paulino court never actually found a Batson violation, and that case supports the proposition that the strict order of the Batson steps are sublimated to the ultimate determination of whether the prosecutor acted with racially discriminatory intent. The Magistrate Judge's finding in this regard was understandably based on the previous finding, which the Court has declined to adopt, that the prosecutor acted with a racially-discriminatory motive when challenging George O. The Court also declines to adopt this finding.
The Magistrate Judge found that the failure of the state courts to adequately investigate the unsupported reason for George O.'s strike, as required by Batson's third step, combined with the questionable strike of Edmund O., the only other African-American on the panel, was an unreasonable application of Batson. (R&R at 19-20.) In addition, the Magistrate Judge found that when the strikes of George O. and Edmund O. are considered together, the reasons appear even more pretextual, and the appellate court erred in failing to consider the two jurors together. (Id. at 20-21.) Respondent objects to these findings, contending that an independent analysis of the two jurors was proper because the state court clearly found that the strikes were not racially motivated and had no occasion to discuss them in conjunction, other than its general obligation under Batson to consider all the relevant circumstances. (Obj. at 9.)
The appellate court noted the correct legal standard for analyzing Batson claims, and discussed both jurors when determining whether there was racial discrimination. (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 9-17.) The appellate court was aware that the only two African-American jurors on the panel were struck, noting that it was what prompted defense counsel to bring the Batson motion. (Id. at 6.) The appellate court's finding that neither juror was dismissed for racially motivated reasons was objectively reasonable and supported by the record, and the race-neutral reasons provided for the challenge to each juror were specifically tailored to the individual jurors and were entirely dissimilar. There being no connection between the two challenges, other than the race of the jurors which was taken into consideration, the appellate court was not obligated to discuss the effect of one challenge on the other. The Magistrate Judge's finding in this regard was based on the previous finding, which the Court has declined to adopt, that the prosecutor acted with a racially-discriminatory motive when challenging George O., and the Court also declines to adopt this finding.
The Magistrate Judge next found that the comparative analysis conducted by the appellate court between Edmund O. and Juror No. 11 was flawed because there was no evidence to support the prosecutor's inference of a relationship between Edmund O.'s murdered cousins and their gang membership. (R&R at 21.) Respondent objects to this finding on the basis that it substitutes the judgment of this Court on this issue for that of the state court. (Obj. at 9.)
Juror No. 11 and Edmund O. were not similarly situated so as to show that the prosecutor excused Edmund O. because of his race. Edmund O., unlike Juror No. 11, had experienced the murders of three cousins, and law enforcement had failed to prosecute those responsible for the murders. Even though Edmund O. stated this experience would not bias him, the prosecutor was entitled to reject this statement and decide not to risk keeping a juror who might have some resentment towards law enforcement. Given Edmund O.'s family history involving gangs and murders, the trial court could reasonably credit the prosecutor's overall assessment that Edmund O. was not a desirable juror for the prosecution because he had experiences too closely associated with the circumstances of the current case. The fact that Juror No. 11 also had family ties to gangs does not override the trial court's conclusion the prosecutor was not setting forth sham reasons regarding Edmund O. (Lodgment No. 7, People v. Corona, No. D047501, slip op. at 18.)
In response to defense counsel's question to the jurors as to whether their experience with gang activity would make it more likely for them to convict, Juror No. 11 stated:
Juror No. 11: I just have uncles and cousins who are involved or who were gang members. But nothing really like -- they had been incarcerated.
Defense Counsel: Were any of them involved in any National City Gangs?
Juror No. 11: Yes. One cousin.
Defense Counsel: Does your experience with your cousins, does that -- do you think that that will affect your decision as to whether or not it was Mr. Corona that committed this offense?
Juror No. 11: I believe not.
Defense Counsel: You are pretty sure about that?
Juror No. 11: Yes. (Lodgment No. 3, Augmented RT at 87.)
Edmund O. responded to that question as follows:
Edmund O.: My mother had some property and had gang activity. They sent her a note from the city. Basically, she was compelled to sell the property because she couldn't control what was happening on her property. It was because of gangs.
Defense Counsel: Did she have to sell at a loss?
Edmund O.: She got market value, but gang activity depressed the market value.
Defense Counsel: Anything else?
Edmund O.: I have two cousins who were in the Crips.
Defense Counsel: The fact that -- if you hear that Mr. Corona is a gang member, would that automatically cause you to convict?
Edmund O.: No.
Defense Counsel: Would that by itself lighten the prosecution's burden of proving that it was
Mr. Corona who committed this act?
(Id. at 85.)
The trial judge asked all the jurors whether they had friends or relatives who had been victims of attempted murder, assault with a firearm, or any crime involving the use of a firearm. (Id. at 63.) Juror No. 11 did not report any such incidents. However, with respect to Edmund O., the following exchange took place:
The Court: When did the incident take place, sir?
Edmund O.: About 10 years ago.
The Court: Was it reported to an investigating agency?
Edmund O.: Yes.
The Court: Was a case filed on the matter?
Edmund O.: Not enough evidence. But I had three cousins murdered. The
Court: At the same time?
Edmund O.: No. Different. One of them was -- had a cousin and daughter killed and another cousin.
The Court: You said there wasn't enough evidence. They didn't know who did it?
Edmund O.: The detectives met with us and told us who did it, but they said they couldn't bring it forth.
The Court: Where did this take place?
Edmund O.: San Diego.
The Court: How do you feel about that decision that law enforcement made in the case that they couldn't go forward? Besides being disappointed, did you see their point or did you think there was plenty of evidence to go forward?
Edmund O.: No, they didn't have no witnesses. They said they couldn't make a case, but they knew who did it.
The Court: Anything about that situation that you feel would prevent you from acting as a fair juror in our case?
The Court: Do you think you could set aside any opinions, attitudes, feelings that might have been generated in that case and decide Mr. Corona's matter solely upon the evidence I present to you?
Edmund O.: I believe so.*fn3
(Id. at 68-69.)
The jurors were also asked if they had friends or relatives in law enforcement, and Juror No. 11 answered that he did not. (Lodgment No. 3, Augmented RT at 47.) Edmund O., however, indicated that: "I have two cousins in law enforcement. One worked in the prison and one worked in the police department. Both of them are dead. I also have a cousin that works in the Chicago Police Department as a detective." (Id. at 44.)
The two jurors were not sufficiently similarly situated so as to draw an inference that the prosecutor was acting with a racially discriminatory purpose when he challenged Edmund O. but not Juror No. 11. Although both jurors had relatives involved in gangs, Juror No. 11 reported no involvement with the authorities with respect to his relatives, and no relatives who had been the victim of gun-related violence. Edmund O. reported that his mother had to sell property due to gang activity. Edmund O. also stated that he had three cousins who were murdered and that the authorities knew who the killers were but did not prosecute. Edmund O. also had several relatives in law enforcement whereas Juror No. 11 had none. The appellate court's finding that "Edmund O.'s family history involving gangs and murders" was sufficient to distinguish him from Juror No. 11 for comparative analysis purposes is not objectively unreasonable. Even if one might speculate that certain aspects of Edmund O.'s background might make him more favorable to the prosecution than Juror No. 11, that alone does not upend the entirety of the trial judge's and the California Court of Appeal's conclusions that the prosecutor's exercise of peremptories was not racially motivated. This Court holds that the state court's decision is far from unreasonable and was in fact a reasonable determination of the facts and application of Supreme Court law. Therefore, habeas relief cannot be granted on Claim One.
II. Claim Two
The Court adopts in full the findings and conclusions of the Magistrate Judge with respect to Claim Two, to which there are no objections. Habeas relief is DENIED as to Claim Two for the reasons set forth in the R&R.
III. Conclusion and Order
The Court ADOPTS IN PART AND DECLINES TO ADOPT IN PART the findings and conclusions of the Magistrate Judge as set forth in this Order, and DENIES the Petition for a writ of habeas corpus. The Court ISSUES a Certificate of Appealability as to all claims presented in the Petition. The Clerk shall enter judgment accordingly.
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January 9, 2012
UNITED STATES OF AMERICAv.TOSHNELLE FOSTER, DEFENDANT.
Defendant Toshnelle Foster, a prior felon, is charged with possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Foster has moved to suppress (1) a firearm recovered at the time of his arrest, claiming that his arrest was not supported by probable cause; and (2) his post-arrest statements, claiming that they are the fruit of an unlawful arrest and were elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966), Oregon v. Elstad, 470 U.S. 298 (1985), Missouri v. Siebert, 542 U.S. 600 (2004), and their progeny. For the reasons stated below, the motion to suppress will be denied in its entirety.
In support of his motion to suppress, Foster submitted an affirmation setting forth the following version of events: On January 25, 2011, New York City Police ("NYPD") officers arrested him and Javon Jones, a close friend whom Foster considers his "cousin." (Foster Aff. ¶ 3) Foster did not display a gun, nor was any firearm visible on his person, prior to or at the time of his arrest. (Id. ¶ 4) While driving to the 44th Precinct, and while in a holding cell at the precinct, Officer Alberto Puente -- the arresting officer -- repeatedly asked Foster "whether [he] was going to let Mr. Jones 'go down' for something he didn't do." (Id. ¶ 5)
Once at the precinct, Foster -- then 18 years old -- told Officer Puente that he wanted to call his mother. (Id. ¶ 6; Tr. 110) Officer Puente brought Foster his cell phone, but before giving it to him asked him if he had "come to a conclusion" about the gun. (Id.) In response, Foster told the officer that the gun was his. (Id. ¶ 7) Officer Puente then told Foster to make a written statement and to include a description of the gun, which Foster did. (Id.) Foster denies being given Miranda warnings or signing a Miranda waiver form prior to making his oral and written statements. (Id. ¶ 8)
After making the written statement, Foster was repeatedly questioned about the gun by other law enforcement officers. (Id. ¶ 9) Between 9:00 p.m. and 10:00 p.m., Foster signed a Miranda waiver form and made a second written statement. (Id. ¶ 10)
The following day, Foster was questioned several times by different law enforcement officers. (Id. ¶¶ 12-14) Foster was never told that his oral and written statements to Officer Puente would not be admissible in court and Foster believed the statements could be used against him. (Id. ¶ 15)
The Court conducted an evidentiary hearing on Foster's suppression motion on November 8 and 14, 2011, and heard argument on December 19, 2011. Foster did not testify at the hearing. The Government called two police officers involved in Foster's arrest -- Officer Puente and Sergeant Danny Diaz -- and Foster called the third officer involved in the arrest -- Officer Angel Andujar. The Court also heard testimony from several officers and agents who questioned Foster post-arrest.
A.January 24, 2011 Gang-Related Attack and Homicide
At the suppression hearing, the Government offered evidence that Foster is a member of a violent gang called "God's Favorite Children" or "GFC." (Tr. 262, 270, 293-94) Foster has the initials "GFC" tattooed on his right arm. (Tr. 293-94) The Bureau of Alcohol, Tobacco and Firearms ("ATF") has been investigating gang activities and related shootings involving GFC. (Tr. 262, 276-78) Members of GFC -- including Foster's "cousin" Javon Jones -- have been charged in Indictment S2 11 Cr. 576(WHP) with violations of the RICO statute, with narcotics trafficking, and with a variety of violent acts, including murder.*fn1 (Gov't Reply Br. 7 n.2)
During the evening of January 24, 2011 -- the night before Foster's arrest in this case -- Foster and other members of GFC were "hanging out" on Courtlandt Avenue in the Bronx when they were chased by members of a rival gang known as YG or "Young Guns" attempting to rob them. (Tr. 189-91, 203-05, 208-09, 270, 278) Foster and his associates barricaded themselves in the back room of a nearby deli. (Tr. 189-91, 203-05, 208-09, 270) After Foster and his GFC colleagues sought refuge in the deli, a friend of Foster's was murdered outside. (Tr. 189-91, 205-07, 234)
B.Foster's January 25, 2011 Arrest
At approximately 1:40 p.m. on January 25, 2011, three members of the 44th Precinct's Anti-Crime Unit -- Officers Puente and Andujar, and Sergeant Diaz -- were driving north on Concourse Village West in the Bronx in an unmarked police vehicle. (Tr. 7, 58, 306) Officer Andujar was driving slowly, approximately five miles per hour or less. (Tr. 8, 311)
Officer Puente and Sergeant Diaz saw Foster and Jones standing on the sidewalk engaged in conversation. (Tr. 8-9, 58-59; Gov't Ex. 103) Sergeant Diaz -- who was seated in the rear passenger-side of the car about five feet away from Foster -- saw him show the brown butt of a gun to Jones. (Tr. 8-10, 31-32) Foster was holding the gun near his waistband. (Id.) Officer Puente -- seated in the front passenger seat -- likewise saw the brown handle of a large gun tucked into Foster's waistband. (Tr. 58-60, 63, 113-114)
Officer Puente told Officer Andujar to stop the car and all three officers then exited the vehicle yelling "police, don't move" and/or "police, stop." (Tr. 15, 63, 101, 307) After the officers identified themselves, Foster began to run, and Officers Puente and Andujar gave chase. (Tr. 15-16, 63, 102, 307) Foster ran up a ramp leading into the courtyard of an apartment building complex. (Tr. 16, 41-42, 63-64, 307-09; Gov't Ex. 105) Officer Puente lost sight of Foster for about two to five seconds as Foster turned up the ramp. (Tr. 64; Gov't Ex. 107) While chasing Foster, Officer Puente had his weapon drawn and was saying "police, stop." (Tr. 68, 107)
In the courtyard, Foster threw himself on the ground and placed his hands behind his back. (Tr. 68, 70, 104-105; Gov't Ex. 113) Officer Puente did a visual inspection of Foster*fn2 and the surrounding area, but did not recover a gun. (Tr. 70-71)
Officer Puente then escorted Foster back to the sidewalk along the same path Foster had run, looking for a gun. (Tr. 71-72, 107-09, 116, 309-10) Officer Andujar also looked on the ground during the walk back to the sidewalk, but testified that he did not know that he should be looking for a gun. (Tr. 310)
While Officers Puente and Andujar chased Foster, Sergeant Diaz remained on the sidewalk with Jones, who did not attempt to flee. (Tr. 16) Sergeant Diaz asked Jones for his name, date of birth, and address. (Tr. 17)
When Officers Puente and Andujar returned to the sidewalk with Foster, Sergeant Diaz instructed Officer Puente to remain with Foster and Jones while he and Officer Andujar canvassed the area for a gun. (Tr. 17-18) While searching, Sergeant Diaz observed a brown object in a pile of snow at the top of the ramp, next to a garbage can. (Tr. 18-19) Sergeant Diaz retrieved the object, which he discovered was a revolver loaded with six rounds of ammunition. (Tr. 19-21; Gov't Ex. 7; Gov't Ex. 8)
Sergeant Diaz then instructed Officers Puente and Andujar to place Foster and Jones under arrest, and they were then handcuffed. (Tr. 19, 22, 75-76) The arrest occurred at approximately 1:45 or 1:50 p.m. (Tr. 17, 52, 123) Sergeant Diaz showed the revolver he had recovered to Officer Puente, who recognized the brown handle of the gun. (Tr. 75) Sergeant Diaz called other members of the Anti-Crime Unit to assist in transporting Foster and Jones to the precinct. (Tr. 22)
Officer Puente testified that he did not ask Foster any questions about the gun either while he was obtaining Foster's pedigree information at the scene or during transport to the 44th Precinct. (Tr. 75, 77, 121) Sergeant Diaz testified that he did not recall any exchanges between a police officer and Foster or Jones during transport back to the precinct. (Tr. 23) Officer Andujar likewise did not recall hearing about any statements made by Foster or Jones while being transported to the precinct. (Tr. 315)
After arriving at the 44th Precinct, Officer Puente obtained pedigree information from both defendants, fingerprinted them, and searched their clothing for weapons or contraband. (Tr. 24, 77-78) Officer Puente placed Foster and Jones in separate holding cells. (Tr. 78) As is required in connection with a gun arrest, Officer Puente also notified Borough Patrol, the Gun Enhancement Unit, and the Evidence Collection Unit of the arrest. (Tr. 90)
During arrest processing, Foster repeatedly asked Officer Puente if he could use his cell phone. (Tr. 78) After Officer Puente completed arrest processing, he permitted Foster to use his cell phone. (Tr. 79)
Officer Puente denied asking Foster any questions about the gun during arrest processing. (Tr. 79) Officer Puente did check on Foster every thirty minutes while he was in the precinct's holding cell. (Tr. 79-80, 124) On one such occasion, Foster told Puente that he did not want his "cousin" to get in trouble and that he wanted to talk. (Tr. 80) Foster's statement suggested to Puente that he intended to take responsibility for the gun. (Tr. 128) Officer Puente testified that Foster initiated the exchange and that he did not ask Foster any questions prior to the statement. (Tr. 80-81) After Foster made this statement, Officer Puente told Foster that he would be debriefed later and that he would receive Miranda warnings before he was asked any questions. (Tr. 81)
Officer Puente testified that he does not typically question detainees (Tr. 80-81), and Sergeant Diaz noted that patrol officers are instructed not to question arrestees, as this task is performed by members of the precinct's detective squad. (Tr. 25) Sergeant Diaz explained that detectives have interrogation skills, are in charge of investigations, and have the forms that must be completed before detainees are questioned. (Tr. 25)
At some point after Foster made the remark about protecting his "cousin," Officer Puente brought Foster to the detective squad's offices on the precinct's second floor. (Tr. 82-83) Officer Puente gave Sergeant Freytes of that unit Foster's pedigree information and told him what charges would be brought against him. (Tr. 82, 132-33) Officer Puente did not tell Sergeant Freytes what Foster had said about wanting to protect his "cousin." (Tr. 167)
Sergeant Freytes's interrogation of Foster began at 5:00 p.m. Officer Puente was present for the interview but did not speak during it. (Tr. 89, 134, 168-69, 172; Gov't Ex. 1) Sergeant Freytes began by administering Miranda warnings, using a Miranda waiver form. (Tr. 83-84, 168-70, 182; Gov't Ex. 1) Sergeant Freytes read Foster each question on the waiver form and asked Foster if he understood it. Freytes wrote a "y" next to each question to indicate Foster's affirmative responses and then asked Foster to write his initials next to each question, which Foster did. (Tr. 170; Gov't Ex. 1) After Freytes had reviewed each question with Foster, Foster stated that he was willing to answer questions. (Tr. 171) Sergeant Freytes then signed the form, printed Officer Puente's name on the witness line, and had Foster sign the form. (Tr. 170) Foster appeared calm and relaxed throughout the interview. (Tr. 85, 171)
Foster first made an oral statement. (Tr. 171) He told Freytes that he had been walking with his "cousin" when he observed the police stop. Foster said that he threw the gun and "took off running." (Tr. 171) He also stated that he was carrying the gun for protection and that his "cousin" did not know that he was carrying a gun. (Tr. 87, 171-72, 234) Foster did not tell Sergeant Freytes about his earlier statement to Officer Puente nor did Sergeant Freytes reference any prior statement. (Tr. 88-89; 172)
After Foster's oral statement, Sergeant Freytes asked Foster to make a written statement. (Tr. 173) Foster's written statement reads as follows:
On this day I Tosh'Nelle was walking with my cousin and officers pulled up and I ran and toss[ed] the gun because I was scared. I had it on me for protection. The gun I tossed had a brown handle and black barr[el]. I confes[s]ed to the situation so that my cousin wouldn't get into trouble for this. I was not forced to write this statement at all by any officers.*fn3 (Gov't Ex. 2)
The interview ended at approximately 5:24 p.m. (Tr. 94; Gov't Ex. 2)
Foster was subsequently interviewed by Detective Jesus Rodriguez of the 40th Precinct, Detective Steven Mayfield from the NYPD's Gun Enhancement Unit, ATF Agent Janice Castillo, and Assistant District Attorney Ann Lee of the Bronx County District Attorney's Office. In his interview with Detective Mayfield, Foster stated that he ran from the police because he had a gun, which he threw into the snow by some garbage before the police apprehended him. (Tr. 234) Foster told both Detective Mayfield and Agent Castillo that he had obtained the gun in October or November 2010. While attending a party in Harlem, he saw "two young kids" playing with a gun and took the firearm away from them. Foster said that he kept the gun at his aunt's house until the gang attack and homicide on January 24, 2011. Foster began carrying the gun the next day for protection. (Tr. 234, 269-70)
A.Legal Standard
The Fourth Amendment requires that an arrest be supported by probable cause. See, e.g., United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008). "[P]robable cause is 'a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules.'" United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). "'Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.'" Valentine, 539 F.3d at 93 (quoting United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949))). "'[T]he probable-cause standard is a practical, non-technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Because the standard is fluid and contextual, a court must examine the totality of the circumstances of a given arrest.'" United States v. Steppello, No. 10-4527-cr, 2011 WL 6450795, at *4 (2d Cir. Dec. 23, 2011) (quoting United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008) (citations and internal quotation marks omitted)). "When making a probable cause determination, '[t]he experience of a [law enforcement] officer is a factor to be considered.'" Arias v. United States, Nos. 09 Civ. 4536(CM), 07 Cr. 813(CM), 2011 WL 1332190, at *8 (S.D.N.Y. Mar. 31, 2011) (quoting United States v. Fisher, 702 F.2d 372, 378 (2d Cir. 1983)).
Probable cause "requires neither a prima facie showing of criminal activity nor a showing that evidence of crime will more likely than not be found. Rather, it requires only the possibility of criminal activity or the possibility that evidence of a crime will be found." United States v. Rodriguez, No. S107 Cr. 699(HB), 2008 WL 52917, at *5 (S.D.N.Y. Jan. 2, 2008) (internal quotation marks and citations omitted). "The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, but it must constitute more than rumor, suspicion, or even a 'strong reason to suspect.'" Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101 (1959)) (citations omitted).
Here, the probable cause determination turns on whether the police officers saw the butt of a gun tucked into Foster's waistband prior to his arrest.
Foster argues that the police officers' testimony on this point is implausible, because it is "unlikely that anyone would display a large gun in broad daylight in the middle of the sidewalk in a residential neighborhood." (Def. Post-Hearing Br. 15, 17) However, the evidence adduced at the hearing was not that Foster displayed "a large gun in broad daylight," but rather that he showed to a very close friend the butt of a gun tucked into his waistband. Given the attack by the rival gang the prior evening and the shooting death of Foster's friend, it is entirely plausible both that Foster would be carrying a gun to protect himself and that he would show the gun to his close friend. It is even more plausible that Foster would show the gun to Jones, in light of his gang membership, as alleged in Indictment S2 11 Cr. 576(WHP).
As to whether the police officers saw a gun in Foster's waistband, the defense has offered no other plausible explanation for why the officers stopped their vehicle and approached Foster. There is no evidence that Officer Puente and his colleagues were targeting Foster or Jones that day or that they had any prior experience with or knowledge of them. Defense counsel's argument that the police officers were engaged in random harassment (Def. Reply Br. 2 n.2) which fortuitously led to recovery of a handgun is entirely unsupported.
The Court must also consider the undisputed evidence that Foster ran after the police officers identified themselves as police. (Tr. 15, 63) While defense counsel argues that Foster recognized the unmarked car and ran because he feared further detention -- having been held for several hours the night before as a witness to a homicide (Def. Reply Br. 2) -- there is again no evidence in the record to support that theory. Foster's affirmation does not explain why he ran. The explanation best supported by the evidence is that Foster ran because he was in possession of a gun, and he feared that the police were telling him to stop because they had seen the butt of that weapon.
The fact that the officers did not observe Foster dispose of the gun does not undermine a finding of probable cause, because the officers had probable cause to arrest Foster based on observing the gun in his waistband.*fn4 The testimony established that Foster ran up a ramp into the apartment complex and that Officer Puente's view of him was momentarily obscured. (Tr. 64) Given that Officer Puente lost sight of Foster for a few seconds while he was running up the ramp near the garbage can, there was an opportunity for Foster to discard the gun out of Officer Puente's sight. The subsequent recovery of the gun near the garbage can -- which was along the route of Foster's flight -- merely supports a finding that Foster did in fact have a handgun in his waistband when the police approached.
Finally, while this Court has considered both Foster's affirmation and the law enforcement officers' testimony at the suppression hearing, the latter is entitled to more weight because it was subject to cross-examination. See, e.g., United States v. Fuentes, No. 07 Cr. 329(SHS), 2007 WL 2319142, at *4 (S.D.N.Y. Aug. 10, 2007) (crediting witness testimony over defendant's sworn statement regarding whether he gave consent); United States v. Robles, 253 F. Supp. 2d 544, 549 n.14 (S.D.N.Y. 2002) (noting that courts "'give greater weight to [witness] testimony, which was subject to cross examination, than to affidavits'") (quoting United States v. Gardner, 611 F.2d 770, 774 n.2 (9th Cir. 1980)); United States v. Juliano, No. 99 Cr. 1197(AGS), 2000 WL 1206745, at *3 n.1 (S.D.N.Y. Aug. 24, 2000) (affording less weight to defendant's affidavit, because the court could not assess the defendant's credibility and the testimony of Government witnesses was "forthright and truthful") (citing United States v. Frank, 8 F. Supp. 2d 284, 291 (S.D.N.Y. 1998)).
Under the totality of the circumstances, it is entirely plausible that Foster possessed a gun on January 25, 2011; that he was showing the gun to his very close friend when the unmarked police vehicle approached; that Officer Puente and Sergeant Diaz saw the butt of that weapon; that because they had seen a weapon they told Officer Andujar to stop the car and announced themselves to Foster; and that Foster ran because he possessed a gun and feared that the police had seen it. Because the police had probable cause to arrest Foster, his motion to suppress the gun and his post-arrest statements as fruits of an unlawful arrest will be denied.
Foster has moved to suppress all of his post-arrest statements. The parties agree that Foster made an oral statement while in the 44th Precinct holding cell prior to receiving Miranda warnings. (Gov't Post-Hearing Br. 8; Def. Post-Hearing Br. 7; Foster Aff. ¶ 7) The Government alleges that the statement was made spontaneously (Gov't Post-Hearing Br. 8), while Foster claims that he made the statement in response to Officer Puente's questioning and that the statement must be suppressed as violative of Miranda. (Def. Post-Hearing Br. 24-25; Foster Aff. ¶¶ 5-6) Foster further argues that all of his subsequent statements must be suppressed because they were obtained through Officer Puente's use of a deliberate, two-step strategy in violation of Missouri v. Seibert, 542 U.S. 600 (2004). (Def. Post-Hearing Br. 21) Because the Court concludes that Foster's oral statement in the holding cell was spontaneous, it is not necessary to reach Foster's Seibert arguments.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. . . . [the following] [p]rocedural safeguards must be employed to protect the privilege [against self-incrimination]":
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Miranda, 384 U.S. at 478-79.
"The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary." United States v. Carter, 489 F.3d 528, 534 (2d Cir. 2007) (citing Miranda, 384 U.S. at 444-45). Only unwarned statements made after interrogation are prohibited, however. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind of are not barred by the Fifth Amendment . . . ." Miranda, 384 U.S. at 478. For purposes of Miranda, "interrogation" "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 292 (1980).
Where a defendant "has alleged police custodial interrogation in the absence of Miranda warnings, the burden shifts to the government to prove Miranda voluntariness, either because there was no custodial interrogation implicating Miranda, there was some exception to the Miranda rule, or because [the defendant] was properly Mirandized and waived his rights." United States v. Miller, 382 F. Supp. 2d 350, 362 (N.D.N.Y. 2005) (citing Lego v. Twomey, 404 U.S. 477, 489 (1972); United States v. Anderson, 929 F.2d 96, 98 (2d Cir. 1991)).
Foster argues that the oral statement he made to Officer Puente while in the holding cell of the 44th Precinct -- to the effect that he did not want his cousin to get in trouble and that he wanted to talk*fn5 -- was made in response to Officer Puente's questioning and must be suppressed under Miranda.*fn6 The Court concludes that the Government has met its burden of establishing that the statement was made spontaneously and not in response to interrogation and that, accordingly, Foster's motion to suppress the unwarned statement will be denied. Because Foster's motion to suppress his subsequent statements is based solely on the argument that they are the fruit of the earlier, unwarned statement in the holding cell, his motion to suppress will be denied as to these statements as well.
Foster claims that he was first questioned while being transported to the precinct; Foster maintains that Officer Puente repeatedly asked him whether he was going to let Jones "go down" for something he did not do. (Foster Aff. ¶ 5) Officer Puente testified, however, that none of the officers questioned Foster during the car ride to the precinct (Tr. 77, 121), and Sergeant Diaz and Officer Andujar denied speaking with Foster during the car ride. (Tr. 23, 314-15)
Foster claims that while he was in the holding cell, Officer Puente again repeatedly asked him whether he was going to let Jones "go down" for the gun. (Foster Aff. ¶ 5) When Officer Puente gave Foster his cell phone -- so that he could call his mother -- Foster alleges that Officer Puente asked Foster if he had "come to a conclusion" about the gun. (Id. ¶ 6) Foster claims that in response to Officer Puente's questioning, he admitted that the gun was his. (Id. ¶ 7)
Officer Puente testified that he did not question Foster while he was in the holding cell and that interrogation of arrestees is a task performed by the detective squad. (Tr. 80) Sergeant Diaz likewise testified that arresting officers such as Officer Puente do not conduct interviews or debriefings of detainees, because these activities are the responsibility of detectives. (Tr. 25) Officer Puente testified that as soon as Foster made a statement to him, he advised Foster that he would be debriefed by the detective squad, which would administer Miranda warnings. (Tr. 81)
Numerous law enforcement officers questioned Foster after his arrest. Sergeant Freytes, Detective Mayfield, and Detective Rodriguez all testified that Officer Puente did not advise them of any prior statements made by Foster. (Tr. 167, 181, 195-96, 219, 224)*fn7 Had Officer Puente taken it upon himself to interrogate Foster during the car ride to the precinct or in the holding cell -- in violation of procedure -- it seems likely that he would have reported his success in extracting information from Foster to subsequent interviewers. But there is no such evidence.
Here, the Court finds credible Officer Puente's account that he followed protocol and did not question Foster. Officer Puente appears to have understood that his role as the arresting officer was limited to processing Foster and Jones and that it was solely the responsibility of the detective squad to interrogate Foster. (Tr. 80-81)
The Court rejects defense counsel's argument that Foster's statement in the holding cell was necessarily responsive to Officer Puente's alleged demand that he take responsibility for the gun so that his "cousin" would not be prosecuted. Foster knew that Jones had been arrested and taken to the precinct. No suggestion from Officer Puente was necessary for Foster to decide to take responsibility for the gun.
Because Foster's unwarned statement in the holding cell was spontaneous and voluntary, it is not necessary to reach Foster's argument that the subsequent interrogations violate Elstad, Seibert, and their progeny. Accordingly, Foster's motion to suppress his post-arrest statements will be denied.
Defendant Foster's motion to suppress the gun recovered at the scene of his arrest and his post-arrest statements is denied in its entirety. The Clerk of Court is directed to terminate the motion (Dkt. No. 16).
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