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Ulrich v. Berbary

August 10, 2006


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



Petitioner Joseph D. Ulrich ("Ulrich"), represented by attorney Howard K. Broder, Esq., has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1986 conviction in Cattaraugus County Court on one count of second degree murder (N.Y. Penal Law § 125.25(1)). The parties have consented to final disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The conviction here at issue stems from Ulrich's alleged responsibility for the murder of Jack Smith ("Smith"), the fiancé of Ulrich's former girlfriend, Pamela Fisher ("Fisher"). On the evening of June 8, 1984, Smith was shot in the back of the head with a shotgun while sitting in the living-room of the house he shared with Fisher. The murderer apparently fired the shotgun through the window screen, hitting Smith, who was seated in a chair several feet away, in the back of the head.

Because of Ulrich's previous involvement with Fisher, he became a suspect in the murder investigation. He was arrested on June 9, 1984, waived his Miranda rights, and gave an exculpatory statement to the police. Several items, including a .12-gauge shotgun and a box of #6-shot shells, were seized from Ulrich's property with his consent. The New York State Police performed limited testing on the shotgun found on Ulrich's property, determining merely that it was operational. Any further ballistics testing on the shotgun, a pre-World War II, smoothbore model, was not possible because no expended shell cartridges were found at the crime scene.

E.g., R.991, 993-94.*fn1 The Trial

Ulrich was tried before a jury in Cattaraugus County Court (Kelly, J.). On January 27, 1986, just prior to opening statements, defense counsel moved in limine to preclude the prosecutor from introducing or making any reference to the shotgun found at Ulrich's residence, arguing that there was "no forensic, scientific, nor ballistic connection between Mr. Ulrich's weapon and the weapon that was used to kill Jack Smith." R.837. The prosecution argued that the evidence would show that the murder weapon was long-barreled and fully choked (as Ulrich's shotgun was) and that this was significant because a shotgun of this type would keep the pellets in a close pattern, as they were when they struck the victim. R.842.

At the prosecutor's request, Judge Kelly granted a continuance for the prosecutor to do further research and present additional argument. During this time, the prosecutor contacted Investigator Charles Boone ("Boone") of the New York State Police to ascertain whether any testing could be done to tie the shotgun more closely to the murder, and in particular asked him to determine at what distance did pellet-spread begin to occur. Boone fired the shotgun three times at a paper target from three different distances and measured the gun's pellet spread. On January 28, 1986, at oral argument, the prosecutor asserted that the "firing pattern on this weapon [wa]s consistent with the firing pattern that killed Jack Smith." R.870. Judge Kelly disagreed that the prosecutor had made enough of a showing to admit the shotgun into evidence, noting that it was a "real conjectural connection . . . on what we have got here." R.882. The following day, on January 29, 1986, Judge Kelly altered his initial ruling to the extent that he agreed to entertain an offer of proof, upon the prosecutor's timing, as to whether testimony about the shotgun and the shells should be introduced. Judge Kelly denied defense counsel's request to preclude the prosecutor from commenting about the shotgun and the shells during his opening statement. R.886-87.

On February 3, 1986, defense counsel again argued that any proof concerning Ulrich's shotgun should not be admissible because there was no connection between the crime and the shotgun. Judge Kelly indicated that his "understanding . . . was that the connection as to the shotgun and as to the testimony would be there would be a reasonable connection made between the events and the shotgun. All we have now is an event that shows the results of a shotgun and a defendant that owns a shotgun. I thought there was going to be more of a connection demonstrated." The prosecutor responded that Boone would testify concerning the firing pattern of defendant's shotgun and that his testimony would demonstrate that the firing pattern observed on the deceased was "consistent with this particular weapon delivering the fatal shot." Judge Kelly reiterated his original ruling concerning the admission of the actual shotgun and ammunition but allowed testimony about those items.

At the jury trial, Fisher testified that she had dated Ulrich for about nine months. After she ended the relationship in 1983, Ulrich was very unhappy about the outcome and continued to leave notes for Fisher at her residence, call her frequently, and drive by her house. R.1471-72.

In December of 1983, Fisher related that she began dating Smith; he moved in with her at the end of April or early May in 1984. Ulrich informed Fisher that he did not like Smith and did not want her living with Smith. R.1474. The trial court allowed Fisher to testify that, on one occasion, Ulrich telephoned Fisher and informed her that he had an extra tire for her car if she ever needed one; a week or two later, Fisher discovered that the tires on her car had been slashed. R.1472. Fisher recalled that a week after replacing the tires, she found that the valve stems had been tampered with. R.1473. Several days later, Fisher's car was burned. R.1474.

After the incident involving the car fire, Fisher and Smith decided that Smith would move out since both believed that his presence was precipitating these acts of vandalism.

R.1476. Fisher testified that she was frightened and therefore asked Ulrich to stay with her for a few days. Id. According to Fisher, however, the arrangement did not work out, and she asked Ulrich to leave. Ulrich did so, and Fisher then reunited with Smith. On May 17, 1984, the two moved to 150 Chestnut Street in the Village of Gowanda. R.1476-77. Three days later, on Fisher's birthday, they became engaged. R.1477-78.

On June 4, 1984, Fisher testified that she went to Ulrich's house to retrieve some of her personal items. R.1484. At that time, Fisher told Ulrich of her engagement to Smith; Ulrich said that she was "dumb" for getting engaged to Smith and asked her to stay with him. Id. As she was leaving, Fisher recalled that Ulrich said that if anything happened to Smith, or between her and Smith, Ulrich would always be there for her. R.1485.

Fisher's sister, Wanda Gearman ("Gearman"), testified for the prosecution that she still spoken often with Ulrich, even after Fisher and he broke up. When Gearman saw Ulrich, he would often be on the verge of tears. R.1080. Ulrich frequently called Gearman and told her that his break-up with Fisher was "tearing him to pieces." Id. Ulrich expressed his dislike of Smith to Gearman on several occasions, saying that Smith was a "snake." Ulrich said that he had hated Smith since high school and that Smith would get what he deserved. R.1081. Gearman related that Ulrich repeatedly asked her for the address where Fisher and Smith were living. In June of 1984, Gearman relented and gave Ulrich the address. R.1081-82.

Robert Ellis ("Ellis"), the president of a realty company in the village of Springville, where Ulrich resided, testified about a visit he received from Ulrich on June 7, 1984. R.1012. That day, Ulrich asked Ellis to come appraise his farm because Ulrich wanted to sell it. Id. According to Ellis, Ulrich said that he did not have the "heart or the will to continue farming" because he was so upset that his girlfriend had left him. R.1012. Ellis described Ulrich as "somewhat emotionally distraught" at the time. R.1013.

To rebut Ellis's testimony as to why Ulrich was interested in selling the farm, defense counsel attempted to show that Ulrich had told Ellis that he had a bad back. R.1019. Ellis testified that, at one time, Ulrich had said that he was having trouble doing the work required to keep the farm going due to his back problems. R.1020.

Betty Swanson ("Swanson"), a salesperson at Ellis's agency, testified that later during Ulrich's visit, he said to her, "[W]hat you see here is a broken man." R.1026. According to Swanson, Ulrich said that he had purchased the farm for himself and Fisher, and that he loved Fisher but she did not want anything to do with him so he was going to sell the farm and move to Florida. R.1026-27. Swanson characterized Ulrich as "upset" at the time. R.1027.

Marsha Tierney ("Tierney"), Fisher's neighbor, testified for the prosecution that she lived at 120 Chestnut Street (Fisher and Smith lived in the first floor of a two-family duplex at 150 Chestnut Street, which was located on a corner lot. Tierney's house was the seventh house from the corner. R.1042-43.) Tierney testified that on June 7, 1984 (the night before Smith was killed), she arrived home from bingo at around 10:00 p.m. R.1043. At about 11:00 p.m., she looked out her side-door to make sure she had turned the car headlights off, and was startled to see a man walking up her driveway. R.1043-44. Tierney described the man as 5'11", huskily built, weighing about 200 pounds, wearing a dark-colored coveralls, and carrying what appeared to be a motorcycle helmet. Id. Tierney thought that the man had brown hair and might have had a moustache. R.1045.

After being seen by Tierney, the man turned around and walked out of the driveway, went up Chestnut Street in the direction of Fisher's residence, and then went down two houses and disappeared between the houses. R.1045-46. Tierney noticed a red or orange motorcycle parked in the street. R.1046. About thirty minutes later, Tierney heard the motorcycle start up and saw it go up to Jamestown Street,*fn2 make a U-turn and head back down Chestnut Street.

R.1047-48. Tierney testified that she believed that the motorcycle had an electric starter.

Fisher also had gone to bingo on the evening of June 7th while Smith remained at home to baby-sit Jeremy, her son from a previous marriage, and Charlie, Smith's nephew. T.708. Fisher returned home at about ten minutes to eleven o'clock, and she and Smith watched the news on television before going to bed. Id.

Milford Fuller ("Fuller") testified that he rented the lower half of a two-family dwelling from Ulrich, who lived upstairs. R.1135-36. Fuller related that he was "very good" friends with Ulrich and liked him "a lot." R.1168. Fuller testified that he worked the 3:00 to 11:00 p.m. shift at the Quaker State gas station in Springville. He described the routine that he followed virtually every night: read the pumps, count the money, drop the money off at his supervisor's house, stop for something to eat, and go home. R.1142. Ulrich was familiar with Fuller's nightly routine Id.

On June 7, the night before the murder, Fuller arrived home between 11:45 p.m. and midnight, at which time he saw Ulrich drive his motorcycle onto the far end of the lawn, drive around behind a building, and come up between the barn and a trailer that was on the premises.

R.1136-37. Fuller observed that Ulrich was wearing "close to a greenish color pair of coveralls" and was driving a red Honda motorcycle with silver fenders. R.1137-38. Fuller knew that the motorcycle was unregistered. R.1141. Fuller and Ulrich conversed briefly; Ulrich mentioned that he had taken the motorcycle out for a drive. R.1151.

The following night, June 8th, Ulrich visited Fuller at the gas station at about 6:00 or 6:30 p.m., and again at 8:30 or 8:45 p.m. Both times, Ulrich drove his El Camino to the station, which was 2.3 miles from the duplex he shared with Fuller. R.1138-41. Fuller related that Ulrich usually drove his El Camino to the gas station when he would stop by to visit. R.1141.

Fisher testified that on the night of June 8th, she ate dinner with Smith and her son, Jeremy, between 5:00 and 6:00 p.m. R.1478-79. They had planned to go fishing afterwards, but Jeremy fell asleep on the living room floor while they were getting ready, so they decided to go the following morning. R.1480-81. At around 10:20 or 10:25 p.m., Fisher went to the store to buy beer and milk. R.1482. When she returned about ten or fifteen minutes later, she observed Smith in the chair by the window, apparently asleep. R.1483. As she got closer, she realized that Smith was seriously injured, and she called for emergency help. R.1483-84.

Meanwhile, at about 10:15 p.m. on June 8th, George Hager ("Hager") and Arnold Samuelson ("Samuelson") were sitting on the front porch of Samuelson's house, which was next-door to Fisher's house at 150 Chestnut Street. R.1061. A motorcycle turned onto Chestnut Street from Jamestown Street and parked next to the curb about four houses away from Samuelson's. R.1061. The driver dismounted, removed his helmet, and walked toward the two men. R.1062. When he reached Hager's residence, which was two doors down from Samuelson's house, the driver walked down Hager's driveway.

R.1061-62 Hager was unable to see precisely what the driver was wearing but could see that it was loose-fitting. R.1064. Hager described the driver as about 5'10" and 180 pounds. R.1069. Hager then walked over to his house and checked his driveway and backyard, but saw nothing. R.1063. At 10:25 p.m., as Hager left to pick up his grandson, he observed that the man's motorcycle was red with silver fenders. Id. Hager observed no other motorcycles on the street at that time.

Samuelson, who had been sitting with Hager, also saw the motorcycle drive by. After Hager left, Samuelson went inside his house. Shortly thereafter, he heard a loud explosion.

R.1072. About a minute later, he turned on the front light and opened the screen door. Id. He saw a man about 5'9" or 5'10" and weighing about 190 pounds walking briskly by the house; the man slowed his pace when the light went on. According to Samuelson, the man was wearing a motorcycle helmet, some type of jacket, and baggy pants; it appeared to Samuelson that the man was "rather heavily dressed" for a "pretty warm night." R.1073. After the man went by, Samuelson heard the motorcycle start up and drive away down Chestnut Street. Id.

Meanwhile, at his apartment across the street from the Quaker State gas station, John Buetler ("Buetler") was sitting outside on his porch enjoying a few beers. T.338. Shortly before 11:00 p.m., Buetler went inside to get a beer. When he returned to the porch, a motorcycle*fn3 had parked in the parking lot next door. A man who appeared to have a mustache, in his late 20s or ...

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