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Elliott v. Conway

March 28, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Petitioner, Robert C. Elliott ("Elliott"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Erie County) on one count of depraved indifference murder. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The conviction here at issue stems from Elliott's alleged involvement in the death of his forty-two-year-old girlfriend, Carol Dunnigan ("Dunnigan"). Dunnigan, who was last seen alive at 7:00 a.m. on May 11, 1997, was discovered lifeless in her bed by neighbor Michael Mueller ("Mueller") at 9:30 p.m. that night. Mueller had gone to Dunnigan's apartment after receiving a phone call from Elliott in which Elliott claimed to have strangled Dunnigan. The grand jury returned an indictment charging Elliott with two counts of murder in the second degree (N.Y. Penal Law §§ 125.25(1) (intentional murder), 125.25(2) (depraved indifference murder). He was tried before a jury in Erie County Supreme Court (Burns, J.).

At trial, the prosecution produced evidence that Mueller and his wife Karen were neighbors and friends of Elliott and Dunnigan. T.47-48.*fn1 Between 11:30 p.m. and midnight on May 10, 1997, Mueller returned home from work. As he pulled into his driveway, he noticed that the light was on at Dunnigan's apartment, and he decided to visit. T.50. Dunnigan invited Mueller in for a beer; she and Elliott drank coffee. Mueller observed that the "house was a mess, papers all over and broken glass." T.51-52. Dunnigan, whom Mueller saw was drunk, began arguing with Elliott and calling him names. According to Mueller, Elliott just laughed it off.

T.53. When Mueller told Dunnigan to "cut it out" and go to bed, she threw her cup of hot coffee at Elliott, spilling it on his pants. Id.

Sometime after 1:00 a.m., Dunnigan retired to bed, and Mueller and Elliott visited the neighborhood bar where they remained until closing time at 4:30 a.m. T.54. When they returned to Dunnigan's apartment, they continued drinking. Dunnigan awoke, became angry at Elliott, and another argument erupted between the two of them. Mueller recalled that Dunnigan was screaming at Elliott that she wanted him out of her house and kept hitting him in the head and shoulders with her closed fists. T.57-58. Elliott responded by walking over to a hutch filled with knickknacks and hurling it onto the floor. T.59.

Dunnigan then ran next door, pounding on Karen Mueller's bedroom window until Karen woke up. T.60. Karen recalled that Dunnigan was angry and upset; she told Karen that she wanted Elliott out of her house. T.122. Karen got up and went over to Dunnigan's apartment with her, where she observed "beer cans everywhere and broken glass." T.123. Karen returned to Dunnigan's apartment and cleaned up the broken glass, after which Karen went into Dunnigan's bedroom and remained with her for a while, attempting to comfort her. T.61, 127. Mueller and his wife left Dunnigan's apartment about 7:00 a.m., and went to bed. T.62. Before leaving, Karen asked Elliott if he wanted to sleep on their couch, but Elliott declined, stating that "everything would be fine." T.127.

At about 8:00 a.m., Karen called Elliott and Dunnigan to check on them. Elliott answered the phone and assured Karen that Dunnigan was sleeping and everything was alright. T.129. Karen spoke to Elliott again on the phone at 11:30 a.m. and was told that Dunnigan was still sleeping. T.133.

Sometime after 2:30 p.m. on May 11, Mueller received a phone call from Elliott in which Elliott asked to borrow some money. Mueller gave him $80. On the way back to his apartment, Mueller knocked on Dunnigan's bedroom window but received no response. T.64-65. Mueller recalled that he and his family went to go visit his mother-in-law at about 4:00 p.m. that afternoon and returned home at 6:00 p.m. T.134.

As Mueller was watching television that night, his niece called him to the telephone sometime after 8:00 p.m., stating that it was Elliott and that it was an emergency. T.67. When Mueller answered the phone, Elliott told him, "Mike, I killed Carol." Id. Karen heard her husband say to Elliott, "Ducky, that is not funny, don't talk like that, cut it out." T.135. Mueller recalled that he said to Elliott, "cut that shit out." According to Mueller, Elliott twice repeated that he had killed Dunnigan by strangling her. T.69. Mueller hung up the phone and informed his wife Karen of what Elliott had said. He began to go next door, but Karen stopped him and called the police. T.69. Mueller yelled outside Dunnigan's bedroom window and banged on the door in an attempt to attract Dunnigan's attention, but it was to no avail. T.137.

Julie McGhee ("McGhee"), Karen's niece, testified that she was visiting the Muellers on the night of May 11 when the phone rang at about 8:30 p.m. T.160. Elliott was on the line; he told her that it was an emergency and that he "needed to speak to Mike." T.160-61. McGhee overheard Mueller talking to Elliott on the phone, saying, "Don't say that, it's not funny." T.161. When Mueller hung up, McGhee heard him tell her aunt that Elliott just said that he had killed Dunnigan, that he was at the Isle View bar, and that he was going to kill himself. T.162.

The prosecution called Rachel Sparrow ("Sparrow"), a bartender at the Isle View Riverwalk Cafe. Sparrow saw Elliott in the bar on May 11; he consumed between six and eight drinks and ordered a cheeseburger. T.204-07. She observed Elliott talking with other customers and playing QuickDraw. T.207. As Sparrow recalled, Elliott left the Isle View at 8:00 p.m. with his brother. T.208-09.

Paul Elliott ("Paul"), petitioner's brother, returned home from work on May 11 at about 3:30 p.m. to find several messages from Elliott on his answering machine. T.344. Although Elliott "sounded serious," Paul did not return the calls because he did not have a number to contact his brother. Id. A few hours later, Elliott called him and said that he was at Isle View Bar and needed money because he (Elliott) was thinking about leaving town. T.345. When Paul met Elliott at the bar, he found that Elliott had been drinking and that his speech was slurred. T.348. Elliott explained that he had had an argument with Dunnigan and may have hurt her. T.347. Paul recalled that Elliott said that Dunnigan had been lying in bed and "had started to turn colors." Id. Elliott told Paul that he thought she was dead. Id.

Officer Wayne Hopfer ("Officer Hopfer") responded to the 911 call placed by the Muellers. T.215-16. Upon entering the apartment, he found Dunnigan's naked body lying face down in her bed. T.218, 232. He noticed that Dunnigan's body was cold to the touch and that there was redness on ...

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