Giles v. Lamanna

1

DAIKWAN GILES, Petitioner, v. AMY LAMANNA, Superintendent of Five Points Correctional Facility, Respondent.

Civil Action No. 22 Civ. 5804 (GHW) (SLC)

United States District Court, S.D. New York

April 15, 2024

REPORT AND RECOMMENDATION

SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE GREGORY H. WOODS, United States District Judge:

I. INTRODUCTION

Petitioner Daikwan Giles (“Giles”) filed a counseled petition challenging his 2013 conviction in New York State Court for second degree murder and criminal possession of a weapon and seeking a writ of habeas corpus under 28 U.S.C § 2254. (ECF No. 1 (the “Petition”); see ECF No. 3 at 4). Specifically, Giles argues that his criminal trial did not comport with constitutional due process due to the suppression of an eyewitness's identification, misconduct by the prosecutor, and bias by the trial court. (ECF No. 1 at 5-10).^[1]Respondent Amy Lamanna Superintendent of Five Points Correctional Facility (“Respondent”) where Giles is serving a prison term of 25 years to life, opposes the Petition. (ECF No. 16). For the reasons set forth below, the Court respectfully recommends that all the claims in the Petition be DENIED and the Petition be DISMISSED in its entirety.

II. BACKGROUND

A. Factual Background^[2]

1. The Shooting and Investigation

Shortly before 10:00 p.m. on June 12, 2009, City of New York Police Department (“NYPD”) Detectives Frankie Rosado and Victor Mercado-Gomez responded to a report of a shooting of a 15-year-old male (the “Victim”) near East Bedford Park Boulevard and Minerva Place. (ECF Nos. 15 at 11; 17 at 1265). Emergency medical technicians had arrived a few minutes earlier, at 9:47 p.m., to find the Victim not breathing and in cardiac arrest. (ECF No. 17 at 933-37). Also on scene was Police Officer Kaluszewski,^[3]who had stopped four individuals he observed running from the scene of the shooting. (ECF Nos. 15 at 11; 17 at 7-8). Detective Rosado spoke to one of the four individuals, Carlos Rodriguez (“Rodriguez”), who stated that he and his friends had run from the scene when the shooting started. (ECF Nos. 15 at 11; 17 at 7). Detective Rosado instructed other officers to take Rodriguez and his friends, Jesus DeSoto (“DeSoto”) and Jeremy Lantigua (“Lantigua”), to the 52d Precinct to be interviewed. (ECF Nos. 15 at 11, 14, 16; 17 at 9). Officers also recovered from the scene six discharged shell casings, which a ballistics expert later identified as having come from a .380 semi-automatic handgun. (ECF No. 17 at 1018-22, 1104).

At 10:08 p.m., the Victim, who had been shot four times, was pronounced dead at St. Barnabas Hospital. (ECF Nos. 15 at 12; 17 at 1125-29, 1138). The cause of death was a “gunshot wound of the chest with the perforation of the lung, heart[,] and the liver.” (ECF No. 17 at 1136).

When Detective Enrique Garcia arrived on scene at 10:30 p.m., Detective Rosado told him that the Victim had been playing basketball when a Black male approached him, exchanged some words, and began shooting at the Victim and his friends. (ECF No. 15 at 12). Detective Tyrone Walton and other officers canvassed the area of the shooting and spoke with 15 witnesses, whose names and statements Detective Walton recorded in a Form DD5 dated June 13, 2009 (the “DD5”). (ECF No. 1-1 at 18). Among the 15 witnesses listed in the DD5 was Annabelle Mejia (“Mejia”), who told Detective Mercado-Gomez that she “heard shots” and “saw [the] shooter,” who “was a tall dark[-]skinned male with a gray sweater and gray hoody with blue jeans” and “had a heavy beard.” (Id.)

Detectives Mercado-Gomez and Garcia returned to the 52d Precinct, where Rodriguez was receiving emergency medical treatment for bullet grazes to his legs. (ECF Nos. 15 at 12; 17 at 9, 1266). Before being transported from the 52d Precinct to the hospital, Rodriguez gave the following statement to Detective Garcia: “We were all on Minerva a group of us and this black guy approached us and pulled a gun to his side. He said something and just started shooting. He was about 19 years old. The gun was small like a .22.” (ECF No. 15 at 12). Rodriguez's friends and three of the Victim's friends gave similar descriptions of the shooter's age, size, clothing, and actions. (Id. at 13-18; ECF No. 17 at 1038).

In the early morning hours of June 13, 2009, NYPD Detectives Rosado and Walton interviewed Rodriguez in the emergency room of St. Barnabas Hospital, where Rodriguez was being treated for his leg wounds. (ECF Nos. 15 at 10; 17 at 6-7, 1269). When the detectives showed him a photo array, Rodriguez positively identified the fifth photo-Giles-stating, “El estaba tirando tiros,” which translates to, “He was shooting.” (ECF Nos. 15 at 10; 17 at 6-7, 10- 11, 38, 66-68).

Rodriguez told the detectives that he had been standing with several friends at the northeast corner of Minerva Place and Creston Avenue when he observed the shooter, who had come from the direction of Grand Concourse, standing across the street with two Black males and one Hispanic male. (ECF Nos. 15 at 10; 17 at 6, 10). He described the shooter as a tall Black male approximately 19 years old, wearing a white shirt and blue jeans. (ECF No. 15 at 10). He saw the shooter first “not arguing, just talking” with the Victim in front of 2860 Creston Avenue, and then approach the southeast corner with a silver automatic pistol in his right hand, “kind of trying to hide the gun behind his leg.” (Id.; ECF No. 17 at 10). The shooter “started saying something,” Rodriguez and his friends ran away, and Rodriguez then heard “6 to 7 shots.” (ECF No. 15 at 10; see ECF No. 17 at 10-11).

Also on June 13, 2009, Detectives Mercado-Gomez and Garcia interviewed Duane Estevez (“Estevez”), who stated that he had been with the Victim when the shooter, whom he had seen in St. James Park the prior week, approached, and shot at them “numerous times.” (ECF No. 17 at 54, 143, 1267). Estevez described the shooter as a Black male, 18 years old, six feet tall, approximately 150 pounds, and wearing a white shirt and baggy pants. (Id. at 143). Detective Garcia showed Estevez a photo array, from which Estevez identified the fifth photo as the shooter. (ECF Nos. 15 at 18; 17 at 143-44, 146, 151, 156). Two other eyewitnesses-Lantigua and DeSoto-were shown the same photo array and identified the fifth photo as “look[ing] like” the shooter but offered that they could identify him “better in person.” (ECF Nos. 15 at 18; see ECF No. 17 at 145-46, 154).^[4] The detectives subsequently identified the person in the fifth photo as Giles, who was 17 years old at the time. (ECF Nos. 15 at 18; 17 at 1344).

2. The Arrest and Giles' Post-Arrest Statements

Just before 3:00 a.m. on June 13, 2009, Detective Mercado-Gomez and five other detectives located Giles, who was wearing a black t-shirt and blue sweatpants, at his residence on Creston Avenue and transported him in handcuffs to the 52d Precinct. (ECF Nos. 15 at 20, 3435, 117-18, 137-38; 17 at 1272-73, 1278, 1341; but see ECF No. 15 at 68 (stating that arrest occurred at 5:40 a.m. near 3016 Webster Avenue)). On arrival at the 52d Precinct, around 3:10 a.m., Giles was placed in an interview room and uncuffed. (ECF No. 17 at 1281).

At 5:15 a.m., Detectives Mercado-Gomez and Garcia advised Giles of his Miranda rights,^[5]following which Giles agreed to speak with them and provide a written statement. (ECF No. 1-3 at 194-95 (the “Statement”); see ECF Nos. 15 at 46, 65-66, 124-29; 17 at 1283-87). In the Statement, Giles said:

I was approached by about 6 or 7 male Hispanics from 198 St. about a problem we had three years ago. “Elias” walked up to me and asked “What's good now, what's good now”? Elias reached into his front pants pocket and pulled out a silver gun. I told Elias to shoot it. “No” he stated, “the only [reason] I won't shoot you right now is because you're a snitch.” All the males walked away. This happened at 2:30 in the afternoon. About eight o'clock that night I went and got the gun and went to 198 St. I approached the same group of males and asked about Elias. They all started speaking Spanish and started walking towards [me]. I began to get nervous and pulled out the gun from my back pocket. I just started shooting at the group. I was not shooting at just one person, I just started shooting. I didn't see anyone get hit. I ran away afterwards. I got into a cab to get away. At about ten o'clock I went to the movies with my girl. We saw Pelham 1, 2, 3. I did not have the gun at that time. I threw the gun down the sewer at Creston and 196 St.

(ECF No. 1-3 at 194-95). At approximately 5:45 a.m., Giles was placed under arrest. (ECF Nos. 15 at 139, 192; 17 at 1347). Detectives Mercado-Gomez and Garcia searched near the sewer drain at Morris (not Creston) and East 196th Street but did not locate a gun. (ECF No. 17 at 1354-56). At 10:30 a.m., Detective Rosado learned, from the medical examiner, that the Victim had been shot four times. (Id. at 1358-59).

Shortly before noon the same day, Giles was transported to the Bronx Homicide Task Force at 1086 Simpson Street. (ECF No. 17 at 1297-98, 1349). While there, Giles submitted to a videotaped interview by Assistant District Attorney Terry Gensler, at which Detective Mercado-Gomez was also present. (ECF No. 15 at 27 (the “Interview”)).^[6] After being informed of his Miranda rights, Giles agreed to answer questions about the shooting, and proceeded to recount the same events he described in the Statement. (ECF No. 15 at 27-29). Giles stated that on the afternoon of June 12, 2009, six or seven Hispanic males approached him and one, “Elias,” with whom Giles “had a prior problem” in which his niece was robbed, said, “what's good now what's good [] with the problem we have [sic] before.” (Id. at 29). ...