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.
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 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.
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.
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,
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).
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.
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).
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.
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
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 ...