Opinion
9:98-CV-0509 (DNH)(GLS)
December 20, 2000
Ivan Towndrow, Attica Correctional Facility, Attica, NY, Petitioner, Pro Se.
Eliot Spitzer, Office of Attorney General, Valerie Singleton, Esq., Christopher A. Quaranta, Esq., Ass't Attorney Generals, New York, NY, for Respondent.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Ivan Towndrow ("petitioner" or "Towndrow") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on March 26, 1998. Then-Magistrate Judge David N. Hurd issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition. Docket No. 4. Respondent filed a response and memorandum of law in support of his request that this court dismiss Towndrow's petition. Docket Nos. 9 and 10. Petitioner filed a traverse, Docket No. 11; in response, the respondent withdrew his argument that petitioner failed to exhaust his state court remedies prior to filing this petition. Docket No. 14.
By Order filed October 13, 1999, then-Chief Judge Thomas J. McAvoy reassigned this matter from the Hon. Lawrence E. Kahn to Judge Hurd who had been elevated to the position of U.S. District Judge, and referred this matter to this court for a Report-Recommendation.
II. Discussion
A. State-Court Proceedings
On February 17, 1995, an Onondaga County Grand Jury indicted Towndrow for the strangulation death of 75 year old Mabel Ropers ("Ropers"). The testimony at trial revealed that Michael Boyle ("Boyle"), a paint contractor, entered into a contract with Ropers to paint her house for $2,700.00. Trial Tr. of Ivan Towndrow (5/17/95) ("Tr.") at 414-17. Boyle employed Towndrow as one of his painters. Id. at 416. As down payment for painting the house, Boyle agreed to accept a 1966 Ford Fairlane that Ropers owned.
On September 24, 1994, Towndrow, along with two other individuals, James Footman ("Footman") and Todd Burley ("Burley), went to Ropers' house in order to determine whether Footman could purchase the car for $300.00. Tr. at 483. After inspecting the vehicle, Footman gave $300.00 to Towndrow and asked him to purchase the car, which he did. Id. at 485-87. Since the vehicle needed mechanical work, a tow truck was called. Footman waited with the tow truck operator for Towndrow to emerge from Ropers' house, who had gone inside to get the key to the driveway's gate. Id. at 492-93. Upon leaving the house, Towndrow attempted to unlock the gate but was not able to, apparently because he had taken the wrong set of keys. Id. at 493. Towndrow went back inside the house, emerged "jittery" and unable to unlock the gate. Id. at 493-94. The car was eventually towed away.
On September 26, 1994, a volunteer for the Meals-On-Wheels program entered the partially opened door to Ropers' house and discovered her lying on her back on the floor. Id. at 388-89. After determining that she was dead, the authorities were called. Id. at 389.
On September 27, 1994, Sergeant Mark Rathbun ("Sergeant Rathbun") of the Syracuse Police Department went to Towndrow's residence and asked him to go to the Criminal Investigation Division ("CID") to assist the police in the investigation of a missing automobile. Id. at 563-64. Towndrow agreed and upon arriving at the CID, Sergeant Rathbun read Towndrow his Miranda rights. Id. at 565-66. Sergeant Rathbun then advised Towndrow that the two were also going to discuss a "serious" matter involving an elderly woman named Ropers. Id. at 570.
Miranda v. Arizona, 384 U.S. 436 (1966).
Sergeant Rathbun questioned petitioner for about two hours; Towndrow then agreed to accompany Sergeant Rathbun's partners in an attempt to locate either Footman or Burley. Tr. at 565, 577. When Towndrow returned to the CID, Sergeant Rathbun re-introduced himself, read Towndrow his Miranda rights again and questioned him for approximately one hour. Id. at 577-80.
Sergeant Patrick Lynch ("Sergeant Lynch") and Investigator Daniel Malay ("Investigator Malay") resumed questioning Towndrow later that same day. Id. at 613. Sergeant Lynch asked Towndrow if he had been read his Miranda rights and he indicated that he had. Id. at 615. After approximately two more hours of questioning, petitioner was told that his arrest was imminent. Id. at 620. At this point, Towndrow "broke down and confessed that he had been involved in the woman's death." Id. Soon thereafter, Investigator Malay was assigned to take an affidavit from petitioner. Id. at 635. Towndrow "was cooperative," stated that he "understood his rights" and was willing to provide the police with "a written affidavit as to the events leading up to and including the murder." Id. at 637.
This affidavit also acknowledged that Towndrow had been read his Miranda rights. Id. at 645.
On January 20, 1995, a Huntley hearing was held to determine whether the affidavit in which Towndrow admitted his involvement in the crime could be admitted. At this hearing, the Hon. William J. Burke heard testimony from Towndrow, Rathbun, Sergeant Lynch and Investigator Malay. In a decision dated January 31, 1995, Judge Burke denied Towndrow's motion to suppress, finding that: (i) Towndrow had been fully apprised of his rights; (ii) the statements were not obtained by promises, threats, force or trickery; and, (iii) the length of the questioning did not render the statements involuntary. See Decision/Order of Judge Burke (1/31/95) (attached to Docket No. 9 at Ex. H) ("Decision/Order") at 4.
People v. Huntley, 15 N.Y.2d 72 (1965).
Towndrow's trial began on May 17, 1995. Following instructions on the crimes of depraved indifference murder in the second degree, second degree manslaughter, the jury convicted Towndrow of second degree murder, Id. at 751-52, 759, 781. He was sentenced to twenty-five years to life imprisonment. Pet. at ¶ 3. The Appellate Division, Fourth Department affirmed the conviction, People v. Towndrow, 236 A.D.2d 821 (4th Dep't 1997), and the Court of Appeals denied Towndrow leave to appeal. People v. Towndrow, 89 N.Y.2d 1016 (1997).
Petitioner asserts two grounds in support of his petition, both of which were raised by him in his appeal. First, Towndrow contends that the evidence was insufficient to support a conviction for depraved indifference murder, and that the jury's verdict was against the weight of the evidence. Petitioner also argues that his confession was not voluntarily made, and that he did not "voluntarily and intelligently" waive his Miranda rights. Pet. at ¶ 12(b).
B. Merits of the Petition
(1) Ground One
In reviewing a habeas petition challenging a conviction on grounds of insufficient evidence, the reviewing court "must consider whether a rational trier of fact could properly find or infer that the accused is guilty beyond a reasonable doubt." Malette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984). The habeas court does not weigh the evidence or determine the credibility of witnesses, Glasser v. United States, 315 U.S. 60, 80 (1942), but rather must "view the evidence in the light most favorable to the government and construe all possible inferences in its favor." United States v. Salerno, 868 F.2d 524, 530 (2d Cir.), cert. denied, 491 U.S. 907 (1989). A reviewing court cannot substitute its view of the evidence for that of the jury. See Jackson v. Virginia, 443 U.S. 307, 326 (1979). Rather, if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the conviction must stand. Id. at 319; Salerno, 868 F.2d at 530; see also, Steele v. Walter, 11 F. Supp.2d 252, 258 (W.D.N.Y. 1998) ("[w]hen considering a habeas petitioner's claim that the state court verdict was against the weight of the evidence, "'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'") (quoting Jackson, 443 U.S. at 319).
"A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person." People v. Russell, 91 N.Y.2d 280, 287 (1998) (citing N.Y.Penal.L. § 125.25(2)).
In this case, petitioner was seen leaving Ropers' apartment around the time of her death acting in a nervous fashion. Burley testified that as Towndrow left Ropers' home around the time of her death, he "was shaking and kept dropping the keys [to the driveway gate]." Tr. at 460. Additionally, Towndrow's palm and finger prints were recovered on a receipt book belonging to the victim. Id. at 551-53.
See also, Id. at 493-94 (describing petitioner's demeanor as "jittery").
Roper died of "asphyxia due to neck compression," Id. at 677; Towndrow confessed to choking the victim. Id. at 654-55. The testimony also established that petitioner's conduct demonstrated a depraved indifference to the victim's life. Ropers weighed seventy-six pounds and was seventy-five years old. Id. at 671. In the process of being choked to death, three of the victim's ribs were fractured causing internal hemorrhaging. Id. at 675. The internal injuries to Ropers' neck were consistent with a "considerable" amount of force being used by the perpetrator. Id. at 676-77, and the chief medical examiner for Onondaga County testified that Ropers was the victim of a homicide. Id. at 677. Additionally, Towndrow confessed that after he began choking her, they fell to the floor and Towndrow climbed on the victim's back to prevent her from moving. Id. at 654. As Ropers was lying down, petitioner choked her with both hands from behind until she "passed out." Id. at 655. He then dragged her by her shoulders away from a telephone because he "was afraid that she could be able to reach the telephone." Id.
As is more fully discussed later in this Report-Recommendation, the court finds that the confession was properly admitted into evidence at trial.
Since a rational trier of fact could have found that the prosecution established all elements of a depraved indifference murder beyond a reasonable doubt, petitioner is not entitled to relief on this theory. Therefore, the court recommends that this Ground in the petition be denied.
(2) Ground Two
This Ground alleges that the trial court erred by finding that Towndrow legally waived his Miranda rights and admitting into evidence the statement in which Towndrow admitted his role in the death of Ropers. In support of this claim, petitioner contends that his waiver and confession were not knowingly, voluntarily or intelligently made. He claims that the confession was the product of a continuous, twelve-hour interrogation which contained short breaks and changing interrogators.
A waiver of one's Miranda rights, to be effective, must be voluntarily, knowingly and intelligently made. Ortiz v. Artuz, 113 F. Supp.2d 327, 338 (E.D.N Y 2000) (citations omitted). An analysis of whether a waiver of these rights is legal involves both factual and legal questions.
Factual findings relevant to the voluntariness of a habeas petitioner's confession made by the state court are entitled to the presumption of correctness; a petitioner is required to rebut this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(d)(2)(e)(1); Mask v. McGinnis, ___ F.3d ___, 2000 WL 1701646, at *6 (2d Cir. Nov. 15, 2000); Leka v. Portuondo, 76 F. Supp.2d 258, 275 (E.D.N.Y. 1999) (in context of habeas review of the voluntariness of a confession, subsidiary factual questions such as "whether in fact the police engaged in the intimidation tactics alleged by the defendant are entitled to the § 2254(d) presumption [of correctness]" (citation omitted)) (citing Miller v. Fenton, 474 U.S. 104, 112 (1985)).
The legal determination as to whether a statement was, in fact, voluntarily made in light of all relevant facts is a question of law entitled to de novo review by a federal court. Leka, 76 F. Supp.2d at 275 (citations omitted). In making this determination, a federal court is to consider the totality of the circumstances. Tankleff v. Senkowski, 135 F.3d 235, 244-45 (2nd Cir. 1998); see also, Green v. Scully, 850 F.2d 894, 901 (2nd Cir.) ("[n]o single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances."), cert. denied, 488 U.S. 945 (1988). "In applying the totality of the circumstances test, the pertinent factors which merit consideration are '(1) the characteristics of the accused, (2) the conditions of [the] interrogation, and (3) the conduct of [the] law enforcement officials.'" Pou v. Keane, 977 F. Supp. 577, 583 (N.D.N.Y. 1997) (Kahn, J.) (quoting Green, 850 F.2d at 901-02). In connection with the third factor, whether a suspect has been advised of his rights under Miranda is an important consideration in determining whether a confession is voluntary. See Davis v. North Carolina, 384 U.S. 737, 740-41 (1966).
(A) Factual Findings
A Huntley hearing was conducted by Judge Burke relative to the issues raised by petitioner in this Ground. See Docket No. 9 at Ex. G. Subsequent to this hearing, Judge Burke issued his Decision/Order in which he made the following factual findings concerning Towndrow: (i) he was read his Miranda rights several times, he understood them and indicated that he was willing to talk to the police without counsel; (ii) he was relaxed and cooperative; (iii) at no time was he: (a) intoxicated; (b) threatened; or, (c) physically harmed; (iv) throughout the questioning, Towndrow was allowed to smoke and use the bathroom; and, (v) Towndrow's testimony was not credible. Decision/Order at 1-4.
Petitioner has not provided the court with any evidence, much less clear and convincing evidence, that rebuts these findings of the trial court. Thus, this court defers to Judge Burke's factual findings as to the circumstances surrounding the questioning of Towndrow and the statement he provided police.
(B) Legal Conclusion
In considering the totality of the circumstances of this case, the court finds that petitioner knowingly, voluntarily and intelligently waived his Miranda rights, and that his confession was properly admitted into evidence. The characteristics of Towndrow, such as his physical and mental condition, support a conclusion that his statements were made voluntarily. Towndrow was relaxed, cooperative, sober and alert. (Docket No. 9, Ex. G, at 14, 15, 16 and 48). The conditions under which petitioner was questioned were not coercive. The record gives no indication that the initial interrogation of petitioner involved either physical or psychological coercion. Towndrow was not placed under arrest when he accompanied the officers to the CID, nor was he handcuffed. While petitioner was questioned for several hours, the record reveals that he was allowed to use the restroom, smoke and drink during this period of time. Id. at 16, 45, 86-87. Towndrow was brought to a more comfortable room as the questioning proceeded (Id. at 27-28). He was advised of his Miranda warnings several times, and questioned as to whether he understood them. (Id. at 13, 48, 52, 85, 96-98). Finally, there is no evidence that the individuals conducting the questioning of petitioner were coercive or abusive toward Towndrow in their questioning of him.
Since Towndrow voluntarily, knowingly and intelligently waived his Miranda rights and signed the affidavit in which he confessed to the crime, the trial court properly admitted the confession into evidence, and the court recommends that this Ground for relief be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Towndrow's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court.
FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.