Vidal v. Artus

Filing 15

MEMORANDUM & ORDER: For the reasons stated herein, the 1 Petition for a Writ of Habeas Corpus is denied. Since Vidal has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. The Clerk of the Court is directed to enter judgment and to close this case. SO ORDERED by Chief Judge Carol Bagley Amon, on 6/27/2011. C/mailed. (Forwarded for Judgment) (Latka-Mucha, Wieslawa)

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U.S. DISTRICT CQIIRT

* jUN 2 7 2011
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

BROOKLYN OFFICE

---------------------------------------------------------)(
JORGE VIDAL,
Petitioner,

NOT FOR PUBLICAnON
MEMORANDUM & ORDER
08-CV-1956 (CBA)

-againstDALE ARTUS, Superintendent,
Clinton Correctional Facility,
Respondent.

---------------------------------------------------------)(
AMON, United States District Judge.
INTRODUCTION
Jorge Vidal ("Vidal"), pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.c.

§ 2254, seeking to vacate his convictions on one count of Murder in the Second Degree, one
count of Criminal Possession of a Weapon in the Fourth Degree, and two counts of Tampering
with Physical Evidence. Vidal asserts: (I) that his written and videotaped statements, made after
he was given Miranda warnings, should have been suppressed because they were allegedly
preceded by, and were the product of, hours of custodial interrogation without such warnings;
and 2) that he was deprived of his due process right to a fair trial when, in the justification charge
to the jury, the trial court included an instruction on the use of excessive force, where Vidal
alleges there was insufficient evidence to find that excessive force was used, and where the trial
court failed to include an instruction that Vidal could be convicted on the basis of excessive force
only upon proofthat the use of excessive force caused death. For the reasons stated below,
Vidal's claims do not warrant habeas relief and his petition is denied.
BACKGROUND
On the morning of April 15,2002, Carmen Abergo ("Abergo") was observed working at
a commercial building in Long Island City. Later that day, Vidal was observed at the same

I"

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building with bandages on his hands. Although Vidal worked for the same employer as Abergo,
that day his assignment had been in Manhattan, and, thus, he had no employment-related reason
for his presence at the Long Island City commercial building. Two days later, Abergo and
Vidal's employer found Abergo's body in the basement of another commercial building he
owned. Medical examiners determined that Abergo had died due to multiple chop and incise
wounds to his head, neck and arms, inflicted by a sharp, heavy object. Medical examiners
counted more than 129 separate injuries to Abergo's body, but could not determine which single
injury had caused his death.
At approximately 4:00pm on April 19, 2002, police approached Vidal at his place of
employment, and he voluntarily returned to the station house with the officers to be questioned in
connection with Abergo's death. Vidal was not placed under arrest, and he continued to answer
questions over the next eleven to twelve hours. At no point did Vidal explicitly ask to leave, nor
did officers tell him he was required to stay at the police station. Early the next morning, at
approximately 4:00am, an officer asked whether Vidal would tell him what happened to Abergo.
Vidal responded that he would tell the truth. At that point, the officer read Vidal his Miranda
rights. Vidal did not make any incuplatory statements prior to the Miranda warnings. Vidal then
confessed to killing Abergo by hitting him several times with a machete. Vidal claimed that he
was acting in self-defense, but he did not give an explanation for Abergo's alleged attack. Vidal
made a written, signed statement of his confession. Afterward, police officers videotaped Vidal.
The officers again read Vidal his Miranda rights, which he voluntarily waived. Vidal then gave a
full, more detailed confession on video. He stated that Abergo had lured him into the basement
with the promise of marijuana, but instead attacked him. He said that he disarmed Abergo, but
then "lost control" and continued to repeatedly strike him with the machete. Vidal also led

2

police to the murder weapon and a bloody rag, which were hidden at his place of employment in
Manhattan.
Vidal was charged with two counts of second degree murder, fourth degree criminal
possession ofa weapon, and three counts of tampering with evidence. Prior to trial, Vidal's
motion to suppress both his written and video confessions was denied. Vidal was convicted of
one count of second degree murder, fourth degree criminal possession of a weapon, and two
counts of tampering with evidence. On June 1,2005, Vidal was sentenced to concurrent terms of
25 years to life imprisonment for the murder conviction, one and one-third to four years
imprisonment for the evidence tampering conviction, and one year of imprisonment for the
weapon possession conviction.
On appeal to the New York State Supreme Court, Appellate Division, Vidal claimed: I)
that his confessions and the machete should be suppressed because his pre-Miranda interview
was custodial in nature; and 2) that the trial court's excessive force jury charge was improper
because there was insufficient evidence to find that excessive force was used, and because the
trial court failed to include an instruction that Vidal could be convicted on the basis of excessive
force only upon proof that the use of excessive force caused death. People v. Vidal, 44 A.D.3d
802,802-03 (N.Y. App. Div. 2d Dep't 2007). In affirming the judgment, the Appellate Division
held that Vidal's pre-Miranda interview was non-custodial in nature, and thus his suppression
motion regarding his confessions and the machete was properly denied. Id. at 802. The
Appellate Division concluded that Vidal's confessions were made intelligently and voluntarily.
Id. Additionally, the Appellate Division found that Vidal's "contention regarding the Supreme
Court's charge on the use of excessive force is unpreserved for appellate review[.J" Id. at 803.

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Vidal sought leave to appeal to the New York Court of Appeals, but the Court of Appeals denied
his application. People v. Vidal, 9 N.Y.3d 1010, at *1 (2007).
DISCUSSION

I.

AEDPA Standard of Review
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"):
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d). When a claim is adjudicated on the merits by the state courts, a federal
habeas court will apply AEDPA deference. Where a state court finds a claim to be "unpreserved,
and, in any event, without merit," that claim is deemed to have been reviewed on the merits. See
Harris v. Reed, 489 U.S. 255, 264 n.1 0 (1989). A state court need not enunciate a rationale for
its decision in order to properly dispose of a claim on substantive grounds. Brown v. Artuz, 283
F.3d 492,498 (2d Cir. 2002) (holding that claims had been "adjudicated on the merits" where the
Appellate Division merely stated that "defendant's remaining contentions are without merit.").
The Supreme Court has said that "clearly established federal law" means "the holdings,
as opposed to the dicta," of its decisions at the time of the state court adjudication. Williams v.
Taylor, 529 U.S. 362,412 (2000). A decision is contrary to clearly established federal law ifit
"arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or

4

if [it] decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts." Id. at 412-13.
A decision involves an unreasonable application of clearly established federal law if it
"identifies the correct governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. The
"unreasonable application" phrase of § 22S4(d)(l) means that "a state court decision must be not
only erroneous but also unreasonable. Some increment of incorrectness beyond error is needed."
Francis S. v. Stone, 221 F.3d 100, III (2d Cir. 2000). The Second Circuit has cautioned "that
the increment need not be great; otherwise, habeas relief would be limited to state court decisions
so off the mark as to suggest judicial incompetence." Id. (internal quotation marks omitted).
II.

Suppression of Written and Videotaped Confessions
Vidal's first claim is that his confessions should have been suppressed because, although

taken after Miranda warnings were given, they were preceded, and thus tainted, by hours of
allegedly-custodial interrogation. Vidal claims that the lack of Miranda warnings during the first
approximately twelve hours of his questioning tainted his post-Miranda testimony, rendering his
confessions inadmissible. Vidal did not make any inculpatory statements prior to the Miranda
warnings. The Appellate Division concluded that Vidal's pre-Miranda interview was not
custodial in nature, and the confessions were properly admitted. Vidal, 44 A.D.3d at 802. The
Appellate Division further held that Vidal's written and videotaped confessions were "voluntary,
as they were made following his intelligent, voluntary, and knowing waiver of his Miranda
rights[.]" Id. AEDPA deference applies to these conclusions.
Under Miranda, an accused must be adequately informed of his constitutional rights prior
to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 464-67 (1966). "[F]ailure to give

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the prescribed warnings and obtain a waiver of rights before custodial questioning generally
requires exclusion of any statements obtained." Missouri v. Seibert, 542 U.S. 600, 608 (2004).
However, in Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court held that an accused who
answered questions before receiving Miranda warnings was not necessarily "disabled from
waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at
318. Under Elstad, such statements are generally admissible where the post-warning statement is
itself voluntary. Id.

In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court recognized an exception
to Elstad, "for cases in which a deliberate, two-step strategy was used by law enforcement to
obtain the postwarning confession." United States v. Carter, 489 F.3d 528, 536 (2d Cir. 2007).

In all other cases, "the holding in Elstad applies." Id. "[AJ court should review the totality of the
objective and subjective evidence surrounding the interrogations in order to determine
deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not
entirely, upon objective evidence." United States v. Capers, 627 F.3d 470,479 (2d Cir. 2010).
Objective factors to consider in reviewing whether a Miranda waiver given after an initial round
of questioning is effective include, "the completeness and detail of the questions and answers in
the first round of interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police personnel, and the degree to which the
interrogator's questions treated the second round as continuous with the first." Seibert, 542 U.S.
at 615 (plurality); see also Carter, 489 F.3d at 536.
To the extent that Seibert is even applicable to an interrogation where the suspect did not
make any incriminating statements before he was read his Miranda rights, I reviewing the totality

1 But see United States v. Ferguson, No. 10 Cr. 843(LTS), 2011 WL 1347002, at *7 (S.D.N.Y. April 4, 2011)
("Because the initial non-Mirandized questioning of Ferguson was not illegal, it is unnecessary for the Court to

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of the objective and subjective evidence, there is no indication that the officers adopted a
deliberate two-step strategy to obtain the postwarning confession. No inculpatory statements
were made during petitioner's interrogation prior to his being warned. Detectives gave petitioner
his Miranda warnings immediately after the petitioner informed them that he would tell them
what really happened. 2 There is no evidence of relevant overlap between the pre- and postwarning interviews, and, thus, unlike in Seibert, the interposition of petitioner's Miranda
warnings would effectively advise the petitioner that he had a real choice about giving an
admissible statement. 542 U.S. at 612; see also McMillon v. Culley, 380 Fed. Appx. 63, 66-67
(2d Cir. 2010) (finding officers who did not first obtain confession did not engage in two-step
process under Seibert). Accordingly, the Court finds that a deliberate two-step process like the
one in Seibert was not applied. As petitioner does not dispute that his post-Miranda statements
were voluntary and that the Miranda warnings were complete - and there is no evidence in the
record to suggest otherwise - the Court finds the statements admissible under Elstad.
Moreover, the state court is entitled to AEDP A deference with respect to its conclusion
that petitioner was not in custody prior to the issuance of his Miranda warning. Custody "is
determined by ascertaining whether that individual is •subjected to restraints comparable to those
associated with a formal arrest.'" Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir. 2009)
(quoting Berkemer v. McCarty, 468 U.S. 420, 441 (1984)). "The ultimate question is how a
reasonable man in the suspect's position would have understood his situation." Id. (internal
quotation marks omitted). Due to the fact-specific nature of a Miranda claim, "unless the facts
clearly establish custody, a state court should be deemed to have made a reasonable application

address the defense's further arguments as to whether there was improper 'two-step' questioning that would
rrec1ude the admission of his additional, post-Miranda statements to authorities.").
Petitioner's statement that he would tell the detectives what really happened was not self-incriminating. See Nova
v. Bartlett, 211 F.3d 705, 708 (2d Cir. 2000) (fmding the statement, "I'll tell you the truth." was not incriminating).
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of clearly established Federal law in concluding that custody for Miranda purposes was not
shown." Cruz v. Miller, 255 F.3d 77, 86-87 (2d Cir. 2001). Vidal went to the precinct
voluntarily, and although he was certainly present at the police station for an extended period of
time, he did not explicitly ask to leave at any point. Nor did police tell him that he was required
to stay and answer their questions. Although "some ofthe circumstances admittedly point
toward custody[,]" the Appellate Division's holding was not an unreasonable application of, or
contrary to, clearly established Supreme Court law. See Cruz, 255 F.3d at 87. Vidal's first claim
fails to provide the basis for federal habeas relief.
III.

Excessive Force JUry Instruction

Vidal claims that the trial court deprived him of his due process right to a fair trial when
it instructed the jury to consider the issue of excessive force in determining petitioner's
justification defense. Respondent contends that Vidal's claim is procedurally barred because the
Appellate Division relied on an independent and adequate state ground-the contemporaneous
objection rule codified in N.Y. CPL §470.05[2]. This Court agrees, and as Vidal has not asserted
sufficient grounds to overcome the procedural default, finds that federal habeas relief cannot be
granted based on this claim. Even if the claim were not procedurally barred, the Court finds that
it is without merit.

a. Procedural Bar
The Appellate Division held that petitioner's claim regarding the trial court's charge on
the use of excessive force was "unpreserved for appellate review[.]" Vidal, 44 A.D.3d at 803
(citing New York Criminal Procedure Law ("CPL") § 470.05[2]). Where a state court rejects a
claim based on the petitioner's failure to comply with a state procedural rule, the procedural
default may constitute an independent and adequate ground for the state court's decision, thus

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barring appellate review. See Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). A
determination that a claim is unpreserved is a sufficient indication that the state court denied the
claim based on state procedural grounds. See Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005).
Under the New York contemporaneous objection rule codified in N.Y. CPL § 470.05[2],
appellate review of a trial court ruling is precluded unless an objection was made to the ruling
"by the party claiming error, at the time of such ruling or instruction or at any subsequent time
when the court had an opportunity of effectively changing the same." N.Y. CPL § 470.05[2].
The Second Circuit has held that failure to comply with the contemporaneous objection rule is an
adequate and independent bar to federal habeas review. See Whitley v. Ercole, 10-3119-pr.,
2011 WL 2184287, at *9-*13 (June 7, 2011); Gonzalez v. Cunningham, 670 F. Supp. 2d 254,
261 (S.D.N.Y. 2009) (citing Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007); Felder v.
Goord, 564 F. Supp. 2d 201,223 (S.D.N.Y. 2008)); see also Bossett v. Walker, 41 F.3d 825,829
n.2 (2d Cir. 1994); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991); Peterson v. Scully,
896 F.2d 661, 663 (2d Cir. 1990).
Although "novelty or sporadic application" may render a state procedural rule inadequate
to create a procedural default precluding federal habeas review, the Second Circuit has regularly
"observed and deferred to New York's consistent application of its contemporaneous objection
rules." Garcia v. Lewis, 188 F.3d 71,79 (2d Cir. 1999); see also Whitley. 2011 WL 2184287, at
*7; Richardson, 497 F.3d at 218. "Accordingly, New York's contemporaneous objection rule is
not rendered 'inadequate' on account of novelty or sporadic application, as sometimes is the
case." Garcia, 188 F.3d at 79 (citing NAACP v. Alabama ex reI. Patterson, 357 U.S. 449, 45758 (1958); Williams v. Lane, 826 F.2d 654,659 (7th Cir. 1987)).

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Where "a state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255,
262 (1989).
To show cause for a procedural default, petitioner must demonstrate "some external
impediment preventing counsel from constructing or raising the claim." Murray v. Carrier, 477
U.S. 478, 492 (1986). Petitioner has stated no such cause for his default and none is apparent
from the trial transcript. Without cause for the default, prejudice is immaterial. See Brennan v.
United States, 867 F.2d III, 119 (2d Cir. 1989) ("We need not consider the issue of 'prejudice,'
because Brennan has failed to show any 'cause' excusing his procedural default.").
Likewise, a procedural bar may be overcome by a showing that a fundamental
miscarriage of justice would occur were this court to decline to consider petitioner's claim.
Coleman, 501 U.S. at 750. This is an extremely high bar for petitioner to meet, as it is "tied ...
to the petitioner's innocence." Schlup v. Delo, 513 U.S. 298, 321 (1995). To overcome a
procedural default, a claim of actual innocence, "must establish that, in light of new evidence, it
is more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt." House v. Bell, 547 U.S. 518, 536-37 (2006) (citation omitted). Such a claim
requires "new reliable evidence-whether it be eXCUlpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence-that was not presented at trial." Id. at 537
(citation omitted). As Vidal has not put forth any new evidence supporting a claim of actual

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innocence either here or in the Appellate Division, he cannot meet the standard required to show
a fundamental miscarriage of justice.
Accordingly, the consistently-applied New York contemporaneous objection rule is an
adequate bar to federal habeas review in Vidal's case. As federal habeas review of this claim is
procedurally barred, Vidal is not entitled to federal habeas relief based on this claim.

b. Merits
Even if the Court were to consider Vidal's claim regarding the excessive force instruction
on the merits, Vidal has not established his entitlement to habeas relief. It is now well-settled
law that an improper jury charge alone does not necessarily amount to a due process violation.
Thus, "the fact that [an] instruction was allegedly incorrect under state law is not a basis for
habeas relief." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Instead, the Court must inquire
"whether there is a reasonable likelihood that the jury has applied the challenged instruction in a
way that violates the Constitution." Id. at 73. The allegedly erroneous instruction must "so
infect[] the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414
U.S. 141, 147 (1973). This occurs when the instruction was "sufficiently harmful to make the
conviction unfair." Davis v. Strack, 270 F.3d Ill, 124 (2d Cir. 2001); see also Duckett v.
Godinez, 67 F.3d 734, 746 (9th Cir.l995) (asking whether trial court's refusal to give requested
instruction rendered the trial "fundamentally unfair"); Means v. Solem, 646 F.2d 322, 332 (Sth
Cir.19S0) (granting habeas relief where trial court's refusal to instruct the jury on self-defense
was an error of "constitutional magnitude"). The jury instruction "must be considered in the
context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 73. "An
omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the
law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

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,,-

Where an instruction has the effect of denying a defendant a "highly credible defense,"
such an instruction may violate due process. Davis, 270 F.3d at 131. Thus, courts have found
that the failure to charge the jury on justification may constitute a due process violation. See,
~,

Jackson v, Edwards, 404 F,3d 612, 625 (2d Cir. 2005); Davis, 27 F,3d at 131-32. Even if a

defense may be raised under state law, however, failure to instruct is not a due process violation
where that defense is, "a fantastic, improbable defense that the jury was unlikely to adopt,"
Davis, 270 F.3d at 132 (citing Blazic v. Henderson, 900 F.2d 534, 541-43 (2d Cir. 1990), or
where "the absence of an instruction" is "mitigated by other portions of the charge." Id. (citing
Henderson v. Kibbe, 431 U.S. 145,156-57 (1977)).
Here, the trial court instructed the jury on justification. Petitioner, however, objects to a
portion of that instruction, in which the trial judge charged the jury as follows:
In addition, there is evidence in this case that after Carmen Abergo was disarmed
and incapacitated the defendant continued to use deadly physical force upon him.
Even if you find that Mr. Vidal was initially justified in using deadly physical
force defensively against Mr. Abergo, the law permits him to do so only to the
extent he reasonably believed such force to be necessary to defend himself. If the
evidence convinces you beyond a reasonable doubt that at some point in his
encounter with Carmen Abergo the defendant continued to use deadly physical
force when he no longer believed that such force was necessary to defend himself,
you may find that he was no longer acting in self-defense and you may find him
guilty of such crimes as the evidence establishes he committed.
Thus, you as the finders of fact are required to apply the same standard of
reasonableness to the issue of the degree of force allegedly used by Mr. Vidal in
this case. It is for you to determine based upon all of the facts and circumstances
as you find they were known to Mr. Vidal at the time of his encounter with
Carmen Abergo whether Mr. Vidal honestly believed the degree of force he used
was warranted and necessary to defend himself from the use or imminent use of
deadly physical force by Carmen Abergo. And whether under all of the
circumstances as they existed at the time a reasonable person would also have
believed that that degree of force was necessary.
(Tr. 609-10.) Petitioner argues that the instruction had the effect of denying him his
defense of justification.
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,.
"

The Court concludes that, on the facts of this case, including an excessive force
instruction as part of the trial court's justification charge was not itself a violation of due process,
"Justification is a defense only to the use of such force as is reasonably believed necessary to
repel the threat." People v. Brathwaite, 276 A.D.2d 707, 707, 714 N.y'S.2d 754, 755 (2d Dep't,
2000); see also N.Y. Penal Law § 35.15; Matter ofY.K., 87 N.Y.2d 430, 433 (1996). According
to Vidal's brief in his state court appeal, Vidal first hit Abergo with a machete in the elbow,
which he then dropped to the floor:
The two men then struggled on the floor for possession of the machete, with
[petitioner1prevailing. When Abergo still appeared to be looking for something,
appellant, again losing control, got up and hit him two to three times on the head
with the machete.
(Def. Br. App. Div. 9-10.) Petitioner, therefore, had prevailed in seizing the only known weapon
from Abergo, at which point he, "lost control," and struck Abergo in the head.
At trial, Medical Examiner Lara Goldfeder, who performed an autopsy on Abergo,
testified that Abergo had suffered more than 129 separate injuries. (Tr.420.) The most severe
were described as "chop wounds." (Tr.421.) There were two large chop wounds in Abergo's
head, one that penetrated the top of his head and continued for five inches down through the
forehead, causing a four-inch fracture of his skull and slicing the brain, and the other a four-inch
cut over his left ear. The medical examiner also observed a wide gaping wound caused by a
cluster of chop wounds, running from the top of Abergo's neck, on the left side, six and one-half
inches along the jaw below the left ear, and involving multiple fractures of both the left jaw and
the top of the spinal column near the back of the neck. (Tr.426-27.) The medical examiner
testified that these chop wounds, which extended into the vertebrae at the top of the neck, were
caused by at least three or four blows. (Tr. 427.) Under the circumstances, an unreasonable
force jury charge was entirely appropriate.
\3

..
Petitioner argues that even if an excessive force charge was proper, the charge should
have contained an instruction that the jury could convict petitioner of murder on the ground that
he used excessive force only ifthey also found that the excessive force caused death. Under
New York law, where there is medical evidence of a specific, fatal wound, "the People must
prove that it was the excessive force which caused death." People v. Carrer!!, 282 A.D.2d 614,
615,725 N.Y.S.2d 344, 346 (2d Dep't 2001). However, in People v. Darden, 57 A.D.3d 1522,
871 N.Y.S.2d 522 (4th Dep't 2008), the court rejected an argument similar to that raised by
petitioner in this case. In Darden, the victim sustained three gunshot wounds. Defendant argued
that the first two shots were justified as self-defense, and that the third shot was justified because
it was either not fatal or the victim had already died. The court rejected defendant's argument
that a jury instruction clarifYing the application of the excessive force doctrine was required,
"because there was no evidence that there was a single fatal gunshot. Rather, the medical
evidence established that the victim died as a result of multiple gunshot wounds and that it could
not be determined in which order the wounds were sustained." Id. at 1523, 871 N.Y.S.2d 522,
523.
Here, the medical examiner testified that Abergo died as a result of "multiple chop and
incise wounds of the head, neck and upper extremities." (Tr. 440.) She testified that she could
not conclude, based on the medical evidence, which wounds were inflicted first (tr. 462), or what
"ultimately caused [Abergo'sj death." (Tr.452.) According to petitioner'S own version of
events, Abergo was alive after petitioner initial struck Abergo's elbow, at which point, after a
struggle, petitioner disarmed Abergo and struck him in the head with the machete two or three
times. (Def Br. App. Div. 9-10.) Abergo was still alive when petitioner left him in the
basement, and Abergo was even alive when petitioner returned to the basement later that day.

14

(Def. Br. App. Div. 1D.) The jury, therefore, was highly unlikely to conclude that the allegedly
excessive force did not itself cause Abergo's death.
Moreover, although there is no causation language in the excessive force charge itself,
both the second degree murder charge and the first degree manslaughter make clear that it was
the people's burden, with respect to both ofthose crimes, to prove that "Vidal caused the death
of Carmen Abergo by striking him multiple times with a machete." (Tr. 613, 616.) Accordingly,
the Court finds that petitioner's due process rights were not violated by the trial court's failure to
instruct the jury that it could convict petitioner of murder on the ground that he used excessive
force only if they also found that the excessive force caused death. Thus, even if Vidal's claim
was not procedurally barred, he is not entitled to federal habeas relief based on this claim.
CONCLUSION
For the reasons stated, the petition for a writ of habeas corpus is denied. Since Vidal has
failed to make a "substantial showing of the denial ofa constitutional right," a Certificate of
Appealability shall not issue. 28 U.S.c. § 2253(c). The Clerk of the Court is directed to enter
judgment and to close this case.
SO ORDERED.
Dated: Brooklyn, N.Y.
JUne1,2DID

/S/

'C~ol Bagl~lN'r::;-on ()

-7-«'

United Stated District Judge

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•