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COX v. MILLER

July 30, 2001

PAUL COX, PETITIONER
v.
DAVID MILLER, SUPT., ETC., RESPONDENT.



The opinion of the court was delivered by: Brieant, United States District Judge.

MEMORANDUM & ORDER

By his counseled Petition filed May 3, 2001 in this Court, Paul Cox, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction after a jury trial in the County Court of the State of New York, County of Westchester (Cowhey, J), on December 6, 1994, for two counts of manslaughter in the first degree in violation of New York Penal Law. The conviction was affirmed by the Appellate Division of the New York Supreme Court, Second Judicial Department on September 27, 1999. People v. Cox, 264 A.D.2d 854 (2d Dept. 1999) and leave to appeal to the New York Court of Appeals was denied on February 7, 2000. He was sentenced on March 14, 1995 to two consecutive terms of 8-1/3 to 25 years, for a total of 16-2/3 to 50 years. The Petition asserts some six separate Points as grounds for relief. We now consider Points 5 and 6.

In Point 5, Petitioner claims that his fingerprints and palm print found at the scene were the fruits of an arrest unsupported by probable cause and that their admission was in violation of the Fourth Amendment. In Point 6, Petitioner claims that his statements to his fellow [Alcoholics Anonymous] members constitute confidential communications, the use of which [to establish probable cause to arrest him and take his fingerprints (Point 5)] violated Cox' rights under the First and Fourteenth Amendments."

This Court now summarizes the factual background of the conviction solely to the extent necessary to support discussion of these two issues. Petitioner, age twenty-one at the time of the crime, who had throughout his life suffered with a serious learning disability and personality disorder with borderline psychotic and anti-social traits, murdered Lakshman Rao Chervu and his wife Shanta Chervu in the early morning hours of December 31, 1988. The crime was committed in the bedroom of their single family residence at 36 Lincoln Street in Larchmont. The murder was particularly brutal, effected with a knife taken from the Chervu kitchen after Cox had broken into the house by breaking a windowpane. Mr. Cox had lived in that home until age seven, at which time his parents moved to another residence about six-tenths of a mile away.

In the evening of December 30, 1988, Petitioner along with two others had gone on a drinking spree at a local bar. They had consumed from a pitcher several portions of a drink known as a Kamikaze.*fn1 After midnight and in the early morning of December 31st they left the bar with Cox driving his mother's automobile. He drove off the road and the car crashed into a guardrail. The two fellow drinkers returned to the bar and Cox began to walk towards his parent's house where he resided (a distance of 2.8 miles) in the course of which he passed the Chervu home (2.2 miles from the accident) broke into the building and committed the murders. He left a fingerprint and a palm print at the scene of the crime. Psychiatric testimony adduced at trial was to the effect that in addition to his psychiatric problems previously mentioned, Mr. Cox was an alcoholic and suffered from an acute alcohol amnesic syndrome, or blackout, at the time of the crime. He walked to his family home after the crime and disposed of his bloody clothes, as well as the knife which he had stolen from the Chervu kitchen.

As may be imagined, this remained for some time an unsolved crime. When he awoke the next day, Cox heard the news of the crime, and that it had taken place in his former home. He had a history of parricidal impulses and he knew, notwithstanding his alcohol induced "blackout," that he was the killer.

On November 11, 1990, Petitioner joined the Harbor Island Chapter of Alcoholics Anonymous.*fn2 Alcoholics Anonymous was founded in 1935 in Akron, Ohio as an effort to help Alcoholics obtain sobriety. Initially AA was a self-help group which did not consider or represent itself as an established religion, but helped many Alcoholics, who continued to belong to and worship with their own churches or other religious groups while belonging to AA. In 1939 the founders published a text which set forth the "Twelve Steps of Recovery." This represents the core belief of AA, which in the ensuing years has been extremely successful internationally, with more than a million members in the United States alone.

The Twelve Steps must be accomplished one by one, beginning with the first step. A new member will be sponsored and assisted by one or more existing members of the organization. Members interact on a first name basis only. The entire relationship is both anonymous and confidential. Members are forbidden from telling outside, statements made at a meeting. The eighth step requires the new member to have "made a list of all persons we had harmed and became willing to make amends to them all." Step five, preliminary to step eight, required that the new member have "admitted to God, to ourselves, and to another human being the exact nature of our wrongs." (Emphasis added)

In late 1992 or early 1993, a woman member of AA, identified in the trial record as "Ms. H" met Petitioner through her membership in AA, and in February 1993 began to share an apartment with him and with one "Mr. R," another member of AA.*fn3 Ms. H revealed to her own psychologist that she knew of the crime. On his advice and on the advice of an attorney whom he obtained for her, the District Attorney was made aware of her knowledge and that of the other AA members, all of whom were interrogated by the authorities and in apparent violation of the confidentiality which AA holds out to its communicants, and possibly the psychologist's duty of confidentiality, corroborated the story. As a result of this information Petitioner was arrested and his fingerprints taken. As might be expected, they matched the fingerprint and palm print at the crime scene.

The doctrine of inevitable discovery cannot be applied in this case. Although Cox had been fingerprinted in the course of his military service, those prints ordinarily would not have been accessed in connection with the investigation. Accordingly, the fingerprints which tie Petitioner to the crime are a direct result of the disclosure to authorities of the communication which Petitioner had with his fellow members of AA.

Petitioner's argument is that his efforts to comply with the Twelve Steps are privileged and that communications in furtherance of the discipline imposed by AA on its communicants may not be disclosed to his detriment. In light of § 4505 of the New York C.P.L.R. relating to confidential communications to clergy, Petitioner now contends that what he told his fellow members was privileged and if this statutory codification and extension of the priest/penitent privilege does not extend to such communications then the statute is unconstitutional as applied. In either case, he is entitled to relief on due process or equal protection grounds.

Section 4505 reads in relevant part as follows:

Section 4505. Confidential Communication to ...

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