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August 7, 2000


The opinion of the court was delivered by: Larimer, Chief Judge.



Petitioner Richard Bernard Lyon*fn1 was convicted in New York State Supreme Court, Steuben County, of two counts of murder, second degree, and single counts of burglary, first degree, burglary, third degree and petit larceny. He received two consecutive sentences of twenty five years to life. Lyon has filed a habeas Petition under 28 U.S.C. § 2254, challenging his conviction and sentence. (Item no. 1.) The Steuben County District Attorney, appearing on behalf of Respondent, argues that the Petition must be dismissed since it includes unexhausted claims; that Lyon procedurally defaulted on a number of claims; and that none of the claims has merit. (Items no. 9, 10.) Lyon submitted a Reply that contests each defense. (Item no. 13.)

Now, upon review of the parties' submissions, and upon consideration of the issues presented herein and applicable law, Petitioner's Petition is denied and this action is dismissed, for the following reasons.


Robert J. Wills and his wife Dorothy Wills lived in Wayne, New York, and ran an antique shop in a carriage house adjacent to their home. On June 15, 1980, Mr. and Mrs. Wills were found dead in their home. Both victims had been shot twice in the head with a .22 caliber pistol. Mr. Wills had a fractured skull and lacerations to the side of his skull in addition to the bullet wounds. Mrs. Wills also had head wounds and an electrical cord was wrapped around her neck. (C373-74, 425-34.)*fn2

The crime went unsolved until November, 1981, when Sidney Wright, through an attorney, informed police that he had information regarding the homicides. Wright was in custody in Georgia on robbery and kidnaping charges. He negotiated a deal in which he was permitted to plead guilty to burglary for his involvement in the Wills crime, if he cooperated with the investigation and prosecution. The agreement also provided that Wright be sentenced to 7½ to 15 years on the burglary conviction, to run concurrent with his Georgia sentence, and that he would be permitted to serve the concurrent sentences in New York rather than Georgia. (C70-74, 545-55.)

Wright told police and later testified that he committed a prior burglary with John Wayne Ross, and that Ross introduced him to Lyon. Lyon knew the Willses' son and was aware that they collected antique dolls. Lyon suggested that he, Wright and Ross burglarize the Willses' antique shop. The three men drove to the shop to scout the location. Lyon stopped at a tavern on the way to get directions. (H10-25, C561-63.)

The next night, Ross and Wright drove in one car and Lyon drove in his own car, a blue Lincoln Continental. When they got near the antique shop, Lyon told Ross and Wright to wait and drove further up the road. About an hour later, Lyon returned and they parked at a distance from the shop. Lyon and Wright walked through a wooded area to the shop. Wright entered through a window while Lyon waited outside. When Wright was unable to locate any dolls in the antique shop, they decided to burglarize the Willses' home. (H25-37.)

Although Wright was the prosecution's only eyewitness, a number of other witnesses corroborated parts of his story. Reginald Wills, the victims' son, testified that he and Lyon had been schoolmates, that Lyon had visited the Willses' home a number of times, that his parents collected antique dolls, and that he saw a number of the dolls in his parents' home the Sunday before the murders. (H445-49.)

Wallace Gary Williams, an antique dealer, testified that Ross introduced him to Lyon the week before the murders, that Lyon asked what antique dolls were worth, and Williams said that he would have to see the dolls to give an estimate. The day after the murders, Ross sold Williams a small German doll and a toy train. (H377-83.)

John Gary, who worked at a tavern near Wayne, testified that Lyon entered his establishment the night before the murders and asked for directions to an antique shop, which Gary "believe[d]" was Wills' Antiques. (H364-65.) Gary stated that Lyon was driving a light colored Lincoln Continental. (H366-67.) John Bierwiler testified that he had sold Lyon a blue Lincoln Continental in March, 1980. (H375.)

Lyon's defense at trial was that Wright committed the murders, and he attempted to shift the blame to Lyon. Lyon called two witnesses, Jean Gilliam and George Wilson, who testified that they heard Wright say that he murdered the Willses. (H491, 525-27.) Lyon also called Ross, who testified that Lyon was not in the Willses' house at the time of the murders, and that Wright admitted killing the Willses and then urged Ross to blame the murders on Lyon. (H563-66, 573-77, 582.) However, Ross also testified that Lyon planned the burglary in order to steal antique dolls, that Lyon waited in his car in the vicinity of the antique shop during the burglary, that he met Lyon later that night and told him about the murders, and that Lyon then told him to "get [Wright] out of here." (C576, 598-602, 607.) Ross also admitted that, when he was first questioned by the police, he implicated Lyon in the murders. (C590-92, 629-32.)

During cross-examination of Wright and of Bernard Marro, the police investigator who took Wright's statement, Lyon's counsel brought out the fact that Wright did not come forward until after he was arrested in Georgia, and that Wright's deal enabled him to escape his Georgia prison sentence and to avoid murder charges for his role in the Willses' deaths. Counsel also brought out the fact that Wright initially told Marro that he drove away before the murders occurred, leaving Lyon at the scene of the crime. (H197-264, C544-48, 568-72.)

In his summation, Lyon's counsel argued that Wright made up the story about Lyon's involvement in order to get out of his Georgia sentence and to avoid a murder charge in New York. Counsel stressed the fact that Wright did not come forward until his Georgia arrest, the favorable terms of the plea agreement, Wright's attempt to convince Ross to blame Lyon for the murders, his alleged admissions to Gilliam and Wilson that he killed the Willses, and his initial statement to Marro that he drove away before the murders. (C826-28, 834-44.) Counsel also argued that Marro destroyed notes from his initial interview with Wright, contending that "those things that . . . fit Mr. Wright's story, . . . were kept. Those things that did not found their way to a paper shredder and were destroyed." (C838.)

Near the conclusion of defense counsel's summation, Reginald Wills, who was seated in the gallery, stood and shouted to the jury: "[w]hy not put Richard Lyons on the stand." (C869.) Wills made a number of other comments that were not recorded by the court reporter before he was escorted out of the courtroom by police. (C870.) Defense counsel moved for a mistrial on the ground that Wills, the victims' son, essentially told the jury that they should infer Lyon's guilt from the fact that he did not testify. (C871-72.) Counsel also adverted to Wills' "threat of someone having to pay for this homicide." (C872.) The prosecutor opposed the motion, noting that the outburst was not attributable to prosecutorial misconduct and that the court could cure any prejudice by a cautionary instruction to the jury. (C872-73.)

The judge declared that he planned to voir dire the jurors to ascertain whether the outburst affected their ability to decide the case impartially. (C873.) After a recess during which defense counsel met with Lyon, counsel gave the judge a number of suggestions for his voir dire of the jurors. (C874-75.) Counsel also stated that Lyon waived his right to be present "during this process." (C874.) The judge then spoke with each juror in chambers, in the presence of the prosecutor and defense counsel. The judge asked each juror what he or she had heard, and whether Wills' statements would affect their objectivity. He emphasized that sympathy for the victims must not affect their deliberations, and that they must not draw any inference from the fact that Lyon did not testify. (C877-912.)

With one exception, jurors stated that they could follow the judge's instructions and that Reginald Wills' outburst did not bias their opinion regarding Lyon's guilt or innocence. (C878, 882, 888, 891, 893, 895-96, 899, 902, 904, 907-08, 909.) However, juror number 3 initially stated that, "there is a question in my mind now. . . . I feel that its very unfortunate what has happened, but what is instilled there, I don't know. I can't honestly say." (C883-84.) Asked if the incident "might have some impact on your duties as a juror," he replied, "I'm not sure if it would, but to be very honest, I'm not sure that it wouldn't," and added, "maybe if I had a little more time, I would be able to evaluate it better." (C884-85.) The judge suggested that juror number 3 ponder the question during voir dire of other jurors. (C886.) Following his questioning of the other jurors, the judge again asked juror number 3 if he felt he "could set aside any of the occurrences in there and decide [the case] strictly on the evidence[.]" The juror replied, "I believe so now," and stated that he would not focus on the fact that Lyon did not testify or let sympathy for the family affect his judgment. (C913.) The judge denied Lyon's mistrial motion. (C913-14.)

The prosecutor then delivered his summation. Referring to the defense contention that Marro destroyed interview notes, the prosecutor stated:

if you believe that he destroyed intentionally what could have been material evidence for you, he came in here and lied to you for two days. . . . It didn't happen, not in this case, not with that policeman.


In his jury charge, the trial judge stressed that sympathy for the victims and their family must not affect the jury's deliberations (C950), and that

the fact that the defendant did not testify may in no way be used against him, because the prosecution always has the burden of proof. The defendant is under no obligation to prove anything by offering his testimony and may not be compelled to do so. . . . [I]t is a requirement of our constitution that you may draw no inference unfavorable to the defendant because he has not testified in this case.

(C969-70.) The judge also stressed that the prosecution bore the burden of proving intent beyond a reasonable doubt (C959), stating that intent

is not always easy to establish and depends upon the particular circumstances of the case, including the actions of a person. . . . You may, but you are not required to do so, after careful consideration of all of the facts and circumstances in the case, infer criminal intent from the natural and ordinary consequences of a person's acts. However, the fact that you may infer any such unlawful intent does not shift any burden of proof whatsoever. The burden of proof as to each element of the crime submitted to you remains upon the People.


The jury found Lyon guilty of larceny, first and third degree burglary, and felony murder on both counts. However, it found Lyon not guilty of both counts of intentional murder and of conspiracy. (C1177-79.) In other words, the jury found that Lyon participated in a felony in which he or another participant caused the death of Mr. Wills and Mrs. Wills. However, it did not specifically find that Lyon was the individual who actually killed the Willses. (Id. See also Indictment, Ex. A.)

For the murder of Robert Wills, Lyon was sentenced to twenty-five years to life, concurrent with lesser sentences on the larceny and burglary convictions. (People v. Lyon, Sentencing, at 9.) For the murder of Mrs. Wills, Lyon was given a twenty-five year to life sentence, consecutive "to all other terms imposed." (Id., at 11.)

In Lyon's direct appeal, his attorney submitted a brief that raised claims corresponding to the First through Fifth Claims in the present Petition. (Ex. B.) Lyon submitted a pro se Supplemental Brief, raising claims equivalent to the Sixth through Twelfth Claims. (Ex. D.) The Appellate Division affirmed the conviction and sentence. People v. Lyon, 134 A.D.2d 909, 521 N.Y.S.2d 930 (4th Dept. 1987).

Lyon's counsel submitted a request for permission to appeal to the New York Court of Appeals, raising the First and Fifth Claims in the present Petition. (Ex. G.) In response to an inquiry by Lyon, the Court of Appeals sent him a letter indicating that "a copy of [Lyon's] pro se Supplemental Brief was included in the papers." (Item no. 13, Ex. B.) The Court of Appeals denied Lyon's application for permission to appeal. People v. Lyon, 71 N.Y.2d 970, 529 N.Y.S.2d 82, 524 N.E.2d 436 (1988).

Lyon subsequently filed a post-trial motion pursuant to New York Criminal Procedure Law (CPL) ยง 440, raising claims corresponding to the Thirteenth through Sixteenth Claims in the present Petition. (Ex. I.) In a Decision denying the motion, the state court held that the basis for Lyon's Thirteenth Claim "is a matter of record and should have been subject for Appellate review," and denied the other three claims on the merits. (Ex. K.) Lyon then requested permission to ...

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