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THOMAS v. KUHLMAN

April 7, 2003

LARRY THOMAS, PETITIONER,
v.
ROBERT KUHLMAN, SUPERINTENDENT, SULLIVAN CORRECTIONAL FACILITY; DENNIS VACCO, ATTORNEY GENERAL OF NEW YORK, RESPONDENTS.



The opinion of the court was delivered by: Jack B. Weinstein, Senior District Judge

MEMORANDUM, ORDER & JUDGMENT

I. Introduction

At trial in this murder case, the prosecution elicited pivotal testimony from its key witness that she observed defendant on the fire escape of the victim's apartment building shortly before the victim was killed. When considered in the context of the state's case as a whole, this testimony placed defendant precisely at the window of the victim's apartment just before the murder.

It is now undisputed that it was physically impossible for the witness to have seen defendant at the victim's window, since the fire escape that abuts the victim's apartment was not visible from her vantage point. Even a rudimentary inspection of the crime scene would have made this crucial fact clear to police, prosecution and defense counsel.

Counsel's failure to make any investigation of the crime scene left him unable to challenge the witness's account and unable to counter the prosecution's factually incorrect summation argument — supported by the trial court's marshaling of the evidence — that defendant was seen on the fire escape of the victim's apartment shortly before her murder. Because the remaining evidence presented by the state was relatively slight and the jury was on the verge of hanging — requiring an Allen charge there is a substantial likelihood that the jury would not have convicted defendant if the witness's testimony had been refuted.

Although defense counsel's performance was, in general, highly professional and efficacious, his failure to perform an adequate investigation in preparation for trial rendered his performance constitutionally ineffective. Defendant's petition for a writ of habeas corpus will be granted. His actual innocence or guilt of the crime of conviction is not implied.

This case raises the recurring issue of the ethical obligations of counsel when defending an impecunious client. Cf. Jelinek v. Costello, No. 97-CV-2327, 2003 U.S. Dist. LEXIS 2775, at *16 — *165 (E.D.N.Y. Feb. 27, 2003) (interplay between wealth and representation). In particular, the state or defense counsel has a duty to expend resources for necessary investigations where a criminal defendant is unable to afford the attendant expenses.

II. Facts

Eva Sawyer, a social acquaintance of defendant, was beaten and stabbed to death in her apartment in Brooklyn in May 1988. Police investigators found no evidence of forced entry into her apartment. The door and all windows were locked save for the window leading to the fire escape.

The day after the murder, defendant voluntarily accompanied a police detective to the precinct for questioning. He was asked about and described his romantic relationship with the victim, and suggested that he had recently endeavored to end it. He claimed not to have seen her for several days prior to her murder. He also stated that he had spent the entire night in question with another woman.

During the interview, detectives noticed spots that appeared to be dried blood on defendant's sneakers. He claimed the spots were mud from a newly planted tree, and over protest surrendered the sneakers to the police. Later testing proved the spots to be Type O blood, consistent with the victim's blood type (along with 45 percent of the population) but not with defendant's. He was subsequently arrested in July 1988.

At trial in June of the next year, proof of defendant's guilt included the evidence that blood spots on his sneakers were consistent with the blood type of the victim, that he enlisted a girlfriend in an attempt to falsely corroborate his alibi, and — most critically — that a witness had observed him on the fire escape just outside of the victim's apartment immediately before the crime was committed.

Although defendant persistently challenged the admissibility of the blood evidence at trial and on appeal, see People v. Thomas, 188 A.D.2d 569, 569-72 (N.Y.Sup.Ct. 1989), he does not now press that claim.

The only issues in the present proceeding center on the witness testimony concerning defendant's presence on the fire escape of the victim's apartment.

Various police officers at trial established the likelihood that the murderer had entered or exited the victim's locked, second-floor apartment through a window opening onto the fire escape. The victim's cousin testified that the apartment's fire escape was at "the rear of her building." Trial Tr. at 55. There was no testimony at trial that there were other fire escapes on the building aside from one on the front of the building.

Having established that the murderer likely utilized the only fire escape that was located at the rear of the victim's building, the prosecution called as a witness Yvette Walker Artis (variously referred to in court papers as "Walker" and "Artis"), a young woman who at the time of trial was being held at Riker's Island on felony drug possession charges. On direct examination she acknowledged that in exchange for her testimony the district attorney would allow her to plead to a misdemeanor offense, thus avoiding altogether what might have been a potential 25-year prison sentence. Artis, whose parents lived at 836 Crown Street — the apartment building situated across a courtyard from 826 Crown Street, where the victim resided — was at her parents' apartment building on the evening of the murder.

At trial, Artis testified that at about 2:00 a.m. she was in a stairwell in her parents' building, staring out of a window that overlooked 826 Crown Street. As she stated on direct examination, from this vantage point she could see the back of the victim's building:

Q. Where is 836 Crown Street in relation to 826 Crown Street?
A. Right next door.
Q. When you look at the back of the buildings. what does it look like from there?
A. A courtyard, people's windows and fire escapes.
Q. And can you see the fire escapes of 826 Crown Street from 836 Crown Street?
A. Yeah, if the [hallway] window's open.

Id. at 216-17. Artis, who had not been entrusted with a key to her parents' apartment, was waiting to be let into the apartment when she "saw something move across 826 on the fire escapes" and then "saw somebody on the fire escape" on the second floor of the building. Id. at 218.

Although she had failed to identify defendant when police first showed her his photograph during their investigation of the murder, at trial she identified defendant as the man she observed on the fire escape at a second floor apartment window. If her testimony was credited by the jury, then it could only have concluded that defendant was on the fire escape outside of the victim's apartment at about the time of the murder.

Defense counsel's examination of Artis more firmly fixed for the jury the (incorrect) assumption that the apartment Artis observed was the victim's. On cross examination, counsel queried Artis about the layout of the buildings and the fire escapes:

Q. Now, when you're looking out this window, can you describe for us — you said the buildings are next to each other. How can you see the other building?
A. Because it's a courtyard and you can see all the back windows to the back apartments and the side apartments, like this. So, there is a gate here, and then this window is here, and there's some buildings here.
Q. ...

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