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LEAKE v. SENKOWSKI

June 30, 2004.

EDWARD LEAKE, Petitioner,
v.
DANIEL A. SENKOWSKI, Superintendent, Respondent.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Edward Leake brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Westchester County Supreme Court, Leake was convicted of Murder in the Second Degree, Attempted Murder in the Second Degree, Assault in the Second Degree, and two counts of Criminal Possession of a Weapon in the Third Degree. He was sentenced as a second violent felony offender to a total of 31 years to life in state prison. He is currently incarcerated pursuant to that judgment at Clinton Correctional Facility in Dannemora, New York. For the following reasons, the petition should be denied.

I. FACTUAL BACKGROUND

  This case arose out of a fight that broke out shortly before midnight on November 19, 1991, at the intersection of Fifth Avenue and Third Street in Mount Vernon, New York. The fight resulted in the stabbing death of William Fitzgerald.

  A. Pretrial Hearing

  A pretrial hearing was held to determine the validity of Leake's arrest in his home, the admissibility of identification evidence and of Leake's statements to the police, and the scope of cross-examination if Leake chose to testify at trial.

  1. The People's Case

  Detective James Garcia testified that during the early morning hours of November 20, 1991, he was called at home to investigate Fitzgerald's death. (Garcia: Hr'g Tr. I. 17-18; Hr'g Tr. II. 22-24).*fn1 From interviewing witnesses, he learned that Leake might have been involved in the incident. (Garcia: Hr'g Tr. I. 20; Hr'g Tr. II. 24-25). Around 3:30 or 4:00 a.m., Detective Garcia and four other officers went to Leake's apartment at 160 Warburton Avenue, Apartment 18E in Yonkers, New York. (Garcia: Hr'g Tr. I. 19-20, 23; Hr'g Tr. II. 33-34). Detective Garcia knocked on the door and Leake opened it. (Garcia: Hr'g Tr. I. 20; Hr'g Tr. II. 35-36). Detective Garcia identified himself and asked if they could speak to him about an incident in Mount Vernon earlier that evening. Leake said "fine" and let the officers into his apartment. (Garcia: Hr'g Tr. I. 21; Hr'g Tr. II. 36-38, 70, 121-22). Detective Garcia noticed another male lying on a mattress in the apartment so he asked Leake if he would come to the Mount Vernon Police Headquarters. Leake agreed. (Garcia: Hr'g Tr. I. 21-22; Hr'g Tr. II. 38-41, 44). Leake got dressed and accompanied the officers to the police station. (Garcia: Hr'g Tr. I. 22-24; Hr'g Tr. II. 42-43, 122-25).

  Upon arriving at police headquarters, Leake was taken to a conference room where Detective Garcia advised him of his Miranda rights. (Garcia: Hr'g Tr. I. 25-26; Hr'g Tr. II. 72-73, 126-27). After the Miranda card was read to Leake, he signed it, acknowledging that it had been read to him. (Garcia: Hr'g Tr. I. 27-30, 45-46; Hr'g Tr. II. 74, 80-81). He signed the card a second time, acknowledging that he understood his rights and that he wished to speak with the detectives. (Garcia: Hr'g Tr. I. 30-31; Hr'g Tr. II. 74, 81-83). Detective Garcia, Detective Daniel Fischer, and Lieutenant Robert Astornio then began questioning Leake. (Garcia: Hr'g Tr. I. 32; Hr'g Tr. II. 84). Detective Garcia testified that he brought in coffee and doughnuts during this interview. (Garcia: Hr'g Tr. II. 128).

  During the questioning, Leake stated that he had been in Mount Vernon earlier that night to visit a friend named "Eddie." (Garcia: Hr'g Tr. I. 32). He initially denied having any problems with anybody. (Garcia: Hr'g Tr. I. 32-33). After about an hour of questioning, Leake conceded that when he was with his friend Eddie Brown on Third Street, he had gotten into a fight. (Garcia: Hr'g Tr. I. 33-34; Hr'g Tr. II. 85-86). Leake first denied that there had been any weapon involved but later admitted that one of the individuals had a knife that Leake had taken. (Garcia: Hr'g Tr. I. 34).

  Leake then gave the following account of the events of the previous evening. He was walking on Third Street with Brown. When they passed a pool hall, Brown encountered a person with whom he had earlier had an altercation and the two started fighting again. (Garcia: Hr'g Tr. I. 34-35). Leake tried to break up the fight and others became involved. (Garcia: Hr'g Tr. I. 35). At one point, Leake saw an individual come at him with a knife, which he blocked with his hand, knocking the knife to the ground. (Garcia: Hr'g Tr. I. 35). Leake picked up the knife, which was four inches long and silver, and started swinging it at people who came close to him. (Garcia: Hr'g Tr. I. 35-36). He stated that he thought he might have stabbed two or three people. (Garcia: Hr'g Tr. I. 36). The only person he saw on the ground, however, was Brown, whom he helped into a car. (Garcia: Hr'g Tr. I. 36). An unidentified person drove Leake home. Leake did not know where Brown was dropped off. (Garcia: Hr'g Tr. I. 36).

  Detective Garcia then informed Leake that someone had been killed and that another individual had been stabbed and was in the hospital. (Garcia: Hr'g Tr. I. 37; Hr'g Tr. II. 91). He asked Leake if he would like to give a written statement as to what occurred and Leake said that he would. (Garcia: Hr'g Tr. I. 37-38). Before Detective Garcia began typing Leake's statement onto a form, he advised Leake of his Miranda rights again and Leake signed the waiver form again. (Garcia: Hr'g Tr. I. 41-42, 46). At the conclusion of Detective Garcia's recorded questioning, at about 6:45 a.m., Leake read the statement and signed the bottom of it, acknowledging that it was true. (Garcia: Hr'g Tr. I. 44-46).

  Leake then agreed to give a statement on video. (Garcia: Hr'g Tr. I. 47-48). After Assistant District Attorney Doug Fitzmorris and Detective Garcia questioned Leake, it was discovered that the microphone for the videotaping system had not been turned on and thus no audio had been recorded. (Garcia: Hr'g Tr. I. 48-49; Hr'g Tr. II. 5-6, 11-12). As a result, Detective Garcia asked Leake if he would mind giving another statement on video, to which Leake agreed. (Garcia: Hr'g Tr. I. 49). ADA Fitzmorris did not take part in the second interview. (Garcia: Hr'g Tr. I. 50). The second videotaped interview began at 9:55 a.m. (Garcia: Hr'g Tr. I. 53-54). Both videotapes were played at the hearing. (Garcia: Hr'g Tr. I. 53; Hr'g Tr. II. 3-4).

  On cross-examination, defense counsel brought out that Detective Garcia had gotten Leake's address from Leake's parents, whose home a group of detectives visited at approximately 3:00 a.m. on November 20th. (Garcia: Hr'g Tr. II. 26-31, 68-69). When asked if he had told Mr. and Mrs. Leake that their son had been involved in a car accident, Detective Garcia stated that he did not recall saying anything about an accident. (Garcia: Hr'g Tr. II. 32).

  Detective Garcia admitted that he made no attempt to obtain an arrest warrant before going to Leake's apartment. (Garcia: Hr'g Tr. II. 70). He described Leake's appearance when he began speaking to him at his apartment as "calm" and "cooperative." (Garcia: Hr'g Tr. II. 50-51). He stated that he believed Leake understood his Miranda rights "absolutely." (Garcia: Hr'g Tr. II. 82-83). When Detective Garcia informed Leake that Fitzgerald was dead, Leake stated "that he didn't mean to hurt or kill anybody." (Garcia: Hr'g Tr. II. 91).

  Detective Garcia later executed a search warrant at 160 Warburton Avenue, recovering a pair of Bally's shoes, a pair of eyeglasses, a bloody blue sweatshirt, two green army jackets, and personal papers. (Garcia: Hr'g Tr. II. 118-19).

  Detective Dewitt Mack testified that he was called to come back to work during the night of November 19-20. (Mack: Hr'g Tr. II. 143-44). He said that when he went to 160 Warburton Avenue with the other officers, Leake let them into the apartment after they had knocked. (Mack: Hr'g Tr. II. 144-47). Detective Garcia asked Leake if he would come to police headquarters and he said, "[Y]es, . . . I would like to put my clothes on." (Mack: Hr'g Tr. II. 146). The detectives went with Leake into the bedroom where he got dressed and then they all left. (Mack: Hr'g Tr. II. 146, 148).

  Later that day, Detective Mack prepared a photo array consisting of pictures of six black males, including Leake. (Mack: Hr'g Tr. II. 149-52, 168-70). He showed this array separately to Leonard Swain, Travis Swain ("Swain"), and Ronald Ross, all of whom had witnessed or been involved in the incident. (Mack: Hr'g Tr. II. 153-54). Leonard Swain was unable to make an identification. (Mack: Hr'g Tr. II. 154, 177-80). Swain identified photograph number 1. (Mack: Hr'g Tr. II. 154-58, 180-82). Ross also identified photograph number 1. (Mack: Hr'g Tr. II. 159-63, 182-83). The photograph Swain and Ross identified was that of Leake. (Mack: Hr'g Tr. II. 180, 182). Detective Mack had received a description of the assailant from each of the three men before preparing the photo array but he had not written these descriptions down. (Mack: Hr'g Tr. II. 170-75).

  Detective Fischer testified that at about 5:45 a.m. on November 20th, he went to the Mount Vernon Hospital to see if Billy Edwards, who had been injured in the incident, could make an identification. (Fischer: Hr'g Tr. II. 231-32). Detective Fischer showed Edwards the photo array and he identified photograph number 1. (Fischer: Hr'g Tr. II. 232-36, 240-41).

  ADA Fitzmorris testified regarding his presentation of the case to the Grand Jury. (Fitzmorris: Hr'g Tr. II. 196). During the course of that presentation, ADA Fitzmorris presented the photo array to Edwards and Ross. (Fitzmorris: Hr'g Tr. II. 196-202). The prosecution introduced into evidence portions of their Grand Jury testimony concerning the identification each made of Leake. (Fitzmorris: Hr'g Tr. II. 200-03).

  2. The Defense Case

  Priscilla Leake, Leake's mother, testified that during the early morning hours of November 20, 1991, several detectives visited her home at 126 South High Street in Mount Vernon. (P. Leake: Hr'g Tr. II. 214-15). Detective Garcia told her that they were looking for Leake because he had been involved in a car accident. (P. Leake: Hr'g Tr. II. 215-16). Because she wanted to know how her son was doing, she went upstairs and called him while the detectives remained downstairs talking to her husband (P. Leake: Hr'g Tr. II. 216, 224-25). She told Leake that the detectives were looking for him and asked if he had been in a car accident. (P. Leake: Hr'g Tr. II. 216, 222). He told her that he had not been in an accident and that he would be at home. (P. Leake: Hr'g Tr. II. 217, 222).

  Leake also testified on his own behalf. He testified that he had lived at 160 Warburton Avenue in Yonkers since October 1991. (Leake: Hr'g Tr. II. 248). Prior to that, he had lived with his parents at 126 South High Street in Mount Vernon. (Leake: Hr'g Tr. II. 249). When Leake's mother called him early in the morning of November 20, 1991, she told him that some police officers had woken her up looking for him because he had been in a car accident. (Leake: Hr'g Tr. II. 250-51). The officers arrived at Leake's apartment approximately 15 minutes after that call. (Leake: Hr'g Tr. II. 251).

  Leake's version of his encounter with the detectives was as follows: the police knocked on his door and said, "[P]olice, open up." (Leake: Hr'g Tr. II. 252). He said that he would but that he wanted to put pants on before he opened the door. (Leake: Hr'g Tr. II. 252). The police knocked harder and louder and said, "[O]pen up now." (Leake: Hr'g Tr. II. 252). He went straight to the door wearing just his underwear. (Leake: Hr'g Tr. II. 252). As Leake turned the knob to open the door, the police pushed the door open and he jumped back. (Leake: Hr'g Tr. II. 252). They told him to stay facing the wall and three or four officers ran into his apartment. (Leake: Hr'g Tr. II. 252). Detective Garcia asked him if he had been in Mount Vernon that night and Leake responded that he had but that he had not been involved in a car accident. (Leake: Hr'g Tr. II. 253). Detective Garcia told Leake they wanted him to come to the police station to talk. Leake responded that this was his home and asked, "[W]hy can't you ask me questions here?" (Leake: Hr'g Tr. II. 253). Leake heard one of the detectives respond, "you can make it harder on yourself or you can make it easy on yourself." (Leake: Hr'g Tr. II. 253-54). Because he needed to get dressed, Leake went towards the bedroom to get his clothes. (Leake: Hr'g Tr. II. 254-55). The officers followed him to the room and then stopped him before he entered the room, insisting on going in first. (Leake: Hr'g Tr. II. 254-55). They asked Leake what he wanted to wear and got clothing for him out of the closet. (Leake: Hr'g Tr. II. 255). After getting dressed, Leake was taken out of the apartment by two officers holding his arms. (Leake: Hr'g Tr. II. 255).

  Leake was taken to the Mount Vernon Police Headquarters, where he was put into a room and the officers "kept asking [him] questions." (Leake: Hr'g Tr. II. 257). When they asked him what happened in Mount Vernon that night, he "told them a few times that if [they] didn't know, [they] wouldn't have [him] here." (Leake: Hr'g Tr. II. 257). Leake told the officers that maybe he would talk in the morning if they arrested him and put him in a cell to sleep. (Leake: Hr'g Tr. II. 257-58). Leake testified that he dozed off during the questioning because he had taken a sleeping medication. (Leake: Hr'g Tr. II. 257). He claimed that a couple of times he fell asleep at the table and one of the officers banged on the table to wake him up. (Leake: Hr'g Tr. II. 258-59). He testified that he was "confused [and] scared" throughout the time he gave the various statements to the police. (Leake: Hr'g Tr. II. 261). During questioning by ADA Fitzmorris, Leake first learned that one of the men involved in the fight had died. (Leake: Hr'g Tr. II. 261-62).

  On cross-examination, Leake testified that in November 1991 he was living with Tony Jones. (Leake: Hr'g Tr. II. 270). Although Leake had gotten married in June 1991, he had never "really" lived with his wife. (Leake: Hr'g Tr. II. 271-72). Once the officers entered his apartment, Leake "figured" that he was being restrained when he was told to stay facing the wall and when he was prevented from entering his bedroom or closet without two officers going in before him. (Leake: Hr'g Tr. II. 275). He further believed he was being restrained when his arms were held as he was escorted to the car and felt he was "mistreated when they walked into my house at that time of night." (Leake: Hr'g Tr. II. 275).

  With respect to the questioning that took place at the station, Leake complained that the officers would not let him get some sleep before talking, that they would not give him any food, and that they would not give him a lawyer. (Leake: Hr'g Tr. II. 285). Leake acknowledged that on the videotapes Detective Garcia appeared courteous towards him. (Leake: Hr'g Tr. II. 266). Also, he acknowledged that in the videotapes he never appeared to be dozing off or otherwise indicated that he wanted to get some sleep. (Leake: Hr'g Tr. II. 267-68, 285). However, Leake maintained that Detective Garcia did not give him anything to eat until he said that he was not going to do the second video until he got something to eat. (Leake: Hr'g Tr. II. 266). On cross-examination, Leake asserted for the first time "I asked to go home and to speak to a lawyer . . . and I didn't get that." (Leake: Hr'g Tr. II. 267). According to Leake, during the first videotape (the one without recorded sound) he asked Detective Garcia, "[W]here is the lawyer?" (Leake: Hr'g Tr. II. 285-86).

  At the end of the second taped statement, Detective Garcia asked Leake whether he had anything to say or add. (Leake: Hr'g Tr. II. 277). Leake responded:

  Only the fact that I was really in the wrong place at the wrong time because usually [at] 11 o'clock I would be in the bed because I work, you know, long hours every day of the week and missing one hour is enough. I wish I was home tonight. You know, my intention[] was not to hurt no one. (Leake: Hr'g Tr. II. 277-78). He never said anything about being mistreated. (Leake: Hr'g Tr. II. 276-79). In fact, when Leake was asked, "Were you treated well?," he answered, "Yes." (Leake: Hr'g Tr. II. 280). Leake acknowledged that he was read his Miranda rights but maintained that Detective Garcia asked him questions prior to reading him the rights card. (Leake: Hr'g Tr. II. 280-84, 286-88). Leake further testified that at his apartment and at the precinct, he was not willing to cooperate with the police. (Leake: Hr'g Tr. II. 297-98).

  The prosecution also cross-examined Leake about his prior convictions and prior contacts with the police. In 1980, the police called Leake and asked him to come to the station concerning a burglary. (Leake: Hr'g Tr. II. 268-69). Leake immediately went to the station as requested and eventually pled guilty to Burglary in the First Degree and two counts of Rape in the First Degree. (Leake: Hr'g Tr. II. 269-70). His plea involved three similar scenarios in which he was charged with breaking into apartments and sexually assaulting female tenants. (Leake: Hr'g Tr. II. 305-13). Leake admitted that he had broken into an apartment in the building where he was living at the time and had sexually abused the woman living there. (Leake: Hr'g Tr. II. 305-07, 311-12). He denied committing the two other burglaries and rapes and denied ever testifying in the Grand Jury in connection with any crime. (Leake: Hr'g Tr. II. 307-18).

  3. The People's Rebuttal Case

  Because Leake's testimony that he asked for a lawyer during the first videotaped statement was the first time such an issue had been raised, the court allowed the People to present rebuttal on this point. (Hr'g Tr. II. 319-24). ADA Fitzmorris testified that he first met with Leake at around 8:00 a.m. on November 20, 1991. (Fitzmorris: Hr'g Tr. II. 330). He was present for the first videotaped statement and subsequently learned that the audio portion of the statement had not been recorded. (Fitzmorris: Hr'g Tr. II. 330). During this interview, Leake "most definitely [did] not" ask or otherwise indicate that he wished to speak to an attorney. (Fitzmorris: Hr'g Tr. II. 331). On cross-examination, ADA Fitzmorris stated that at some point during the statement he may have left the room to get Leake a glass of water. (Fitzmorris: Hr'g Tr. II. 334-35).

  4. Hearing Decision

  The trial judge issued an oral decision following the close of testimony on January 4, 1993. The judge concluded that Leake "was not in custody at the apartment on Warburton Avenue, that he willingly accompanied police officers to the Mount Vernon police headquarters for questioning and that before any questioning took place he was given his complete warning[s] under Miranda and made a knowing and voluntary waiver of his rights to remain silent and to be represented by counsel during the questioning." (Hr'g Tr. II. 382). The judge determined that the police did not use coercive behavior or deprive Leake of sleep so as to overbear his free will. (Hr'g Tr. II. 382). The judge found Leake's testimony that he had asked for an attorney to be not credible. (Hr'g Tr. II. 382-83). Accordingly, the motion to suppress Leake's written statement, verbal statements, and two videotaped statements was denied. (Hr'g Tr. II. 383).

  With respect to the identification evidence, the trial judge found that there was "nothing improper in the pretrial identification procedures." (Hr'g Tr. II. 383-87). Therefore, the motion to suppress the identification testimony of Swain, Ross, and Edwards was also denied. (Hr'g Tr. II. 385, 387).

  The judge also heard from the parties and made rulings regarding the prosecution's ability to cross-examine Leake regarding his prior convictions should he testify at trial. (Hr'g Tr. II. 388-411). The judge refused to allow cross-examination regarding a 1980 incident in which Leake entered a woman's apartment and sexually abused and threatened her on the ground that the incident was too remote in time. (Hr'g Tr. II. 405-06). But the judge ruled that the People would be permitted to cross-examine Leake regarding two incidents on the same day in 1981 in which he broke into the apartments of two women and raped them. Leake pled guilty to two counts of Rape in the First Degree in connection with these crimes and served nine years in prison. (Hr'g Tr. II. 405-07).

  B. The Trial

  The following evidence was presented at trial:
1. The People's Case
  During the evening of November 19, 1991, Edwards and Swain were standing on the sidewalk in front of a pool hall — Nice Guys Game Room — near Third Street and Fifth Avenue in Mount Vernon, New York. (Edwards: Tr. 188-89, 192; Swain: Tr. 448-49). Robert Dubose*fn2 and Brown pulled up in front of them in a tan car. (Edwards: Tr. 189-90; Swain: Tr. 450). Dubose got out of the car and walked away. (Edwards: Tr. 189-90). Swain approached Brown, who had remained sitting in the car, and started punching Brown in the face. (Edwards: Tr. 189-91; Swain: Tr. 450-51). Swain explained that he punched Brown because he had heard that Brown had thrown a drink on Swain's girlfriend at a party three nights prior. (Swain: Tr. 447-48, 451). Dubose got back in the car and Dubose and Brown drove away. (Edwards: Tr. 191; Swain: Tr. 451). Ross, a friend of Edwards and Swain, also witnessed this incident and testified to seeing Swain punch Brown in the face. (Ross: Tr. 345-49). Later that evening, at around 10:00 or 10:30 p.m., Edwards was again standing on the sidewalk at Third Street and Fifth Avenue. (Edwards: Tr. 194-95). Ross was again present. (Ross: Tr. 350-54). Edwards saw Dubose drive up the street in the same tan car, make a U-turn, stop, and get out of the car. (Edwards: Tr. 194-97). Then Edwards noticed a blue car with four occupants come up the street and pull into a gas station. (Edwards: Tr. 196-97). Brown and a friend got out and approached Edwards. (Edwards: Tr. 197-99). Edwards did not know Brown's friend, who was wearing a hooded sweatshirt and a green army-type coat. (Edwards: Tr. 198; Ross: Tr. 354). At trial, Edwards, Ross, and Swain all indicated that Leake was the friend with Brown. (Edwards: Tr. 219-20; Ross: Tr. 353-54; Swain: Tr. 454-55). As Brown approached, he was putting on gloves and saying repeatedly, "I'm going to beat the crap out of you." (Edwards: Tr. 216). Edwards replied, "[W]ho is you talking to?," to which Brown responded, "I'm talking to you." (Edwards: Tr. 216-17). When Edwards stepped down off the curb ready to fight, Brown stated, "[G]o in and get your man, I want to fight your man first." (Edwards: Tr. 217). So Edwards went into the pool hall and got Swain. (Edwards: Tr. 217; Swain: Tr. 452-53). At some point while Edwards was outside, he noticed Fitzgerald walking down the street. (Edwards: Tr. 217). Swain did not notice Fitzgerald, with whom he had gone to school, when he came outside. (Swain: Tr. 456-57).

  Brown and Swain began "shadow boxing," swinging punches at one another but not causing any harm. (Edwards: Tr. 218; Ross: Tr. 355; Swain: Tr. 456). Edwards became concerned that Brown was trying to tire Swain out so he said, "I'm not going to let you fight him, you're trying to tire him out. If you want to fight someone, fight me." (Edwards: Tr. 220; Ross: Tr. 355, 368-69). According to Edwards, Leake then got involved by proposing that the four men go around the corner. (Edwards: Tr. 221). Leake and Brown were insisting that they wanted to fight while Edwards was insisting that they fight him rather than Swain. (Edwards: Tr. 221-22). Edwards then punched Brown in the mouth and Brown fell on Edwards. (Edwards: Tr. 222-23; Ross: Tr. 369; Swain: Tr. 457). Edwards "dragged" Brown to the corner and Edwards and Brown continued to fight (Edwards: Tr. 222-24; Ross: Tr. 369-70), with Edwards knocking Brown out at some point (Swain: Tr. 506).

  According to Edwards, while he was fighting Brown he noticed Leake moving behind him and he also noticed Fitzgerald hitting somebody. (Edwards: Tr. 224-25). Then Fitzgerald hit Brown. (Edwards: Tr. 225). Fitzgerald also hit Leake in the head several times and Edwards said to Fitzgerald, "Hit him again and you should be able to put him out." (Edwards: Tr. 225, 320-22). Then Edwards saw Leake hit Fitzgerald in the ribs from behind. (Edwards: Tr. 225-27). Fitzgerald grabbed his side. (Edwards: Tr. 226-27). Then Leake ran behind Edwards and hit him in the back with what Edwards thought was a pipe as Edwards was still beating up Brown. (Edwards: Tr. 227-29). Edwards went after Leake, who started running down Fifth Avenue, but then Edwards looked back and noticed Fitzgerald on the ground so he went back to help him. (Edwards: Tr. 229-30, 232). As Edwards approached, Brown started swinging at him again, so Edwards beat up Brown some more. (Edwards: Tr. 230). Edwards noticed Leake sneaking up on him again, so Edwards said he was "going to beat the crap out of" Leake as well — at which point Leake and Brown ran towards their car and left. (Edwards: Tr. 230, 233). Edwards then discovered that he had been stabbed in the back and went to the emergency room. (Edwards: Tr. 234-35). According to Swain, after Edwards and Brown went to the corner to fight, Leake went towards Edwards and Swain pushed Leake away. (Swain: Tr. 458). Leake started backing up, pulled out a knife from behind his back, and tried to cut Swain. (Swain: Tr. 458, 464). Swain described the knife as a "hunting knife." (Swain: Tr. 464). Swain jumped out of the way and the next thing he knew, Leake was coming at him again with the knife. (Swain: Tr. 458-59). This second time, Swain again moved out of the way and Leake stabbed Edwards in the back as Edwards was beating up Brown. (Swain: Tr. 459). Then Leake and Brown ran towards the blue car parked at the gas station and drove away. (Swain: Tr. 460). Swain took Edwards to the hospital. (Swain: Tr. 460-61). Swain did not see Leake stab Fitzgerald but saw Fitzgerald later at the hospital. (Swain: 461-62).

  Ross also saw Leake pull out a knife from behind his back. (Ross: Tr. 356, 371). Ross described the knife as a "big hunting knife," like the kind used in the movie "Rambo." (Ross: Tr. 373). He saw Leake stab Fitzgerald in the side. (Ross: Tr. 356, 374-75). Ross took the keys to the tan car from Dubose and drove Fitzgerald to the hospital. (Ross: Tr. 357-58, 376).

  Dr. Paul Koltovich treated both Edwards and Fitzgerald in the emergency room of Mount Vernon Hospital. (Koltovich: Tr. 73-74). He testified that Fitzgerald came in at about 11:00 p.m. complaining of shortness of breath and discomfort in his chest. (Koltovich: Tr. 74-75, 81-82). Doctors ascertained that Fitzgerald had multiple stab injuries to his back and probably had a collapsed lung. (Koltovich: Tr. 74-75, 81-82). Fitzgerald's condition deteriorated as his blood pressure dropped and he became unresponsive. (Koltovich: Tr. 83). Despite the efforts of doctors and surgeons, Fitzgerald died at approximately 12:40 a.m. (Koltovich: Tr. 81-85). The autopsy confirmed that Fitzgerald had two stab wounds — one in the right side of his back and one in the right side of his chest slightly below his armpit. (Roh: Tr. 631-32). The Medical Examiner concluded that in order to penetrate Fitzgerald's jacket and shirt as well as his body, "considerable force" had to have been used. (Roh: Tr. 644-45). He also concluded that if the knife was held in the right hand of the attacker, the attacker must have inflicted the wound when Fitzgerald's back was turned to the attacker. (Roh: Tr. 645-46).

  Dr. Koltovich also treated Edwards, who arrived at the emergency room shortly after 11:00 p.m. (Koltovich: Tr. 88-89, 95). Edwards was admitted to the hospital for two days for treatment of two stab wounds to his back and was released with bandages covering his wounds. (Koltovich: Tr. 95-101).

  Meanwhile, the Mount Vernon Police Department began investigating the crime. Officer William Podszus responded to South Fifth Avenue and West Third Street shortly after midnight. (Podszus: Tr. 120). At that time, the area was quiet. (Podszus: Tr. 121-22). He discovered a bloodstained, yellow sweatshirt in the gutter on the southwest corner and a black baseball hat on the southeast corner. (Podszus: Tr. 122-23). He also saw bloodstains on the pavement and on the sidewalk. (Podszus: Tr. 122, 129). He marked and roped off ...


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