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Folger v. Conway

August 17, 2006


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



Petitioner, Warren Edward Folger ("Folger"), has brought this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of first degree manslaughter. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


Folger's conviction after a jury trial stems from his alleged involvement in the beating death of Michael Tomczak ("Tomczak"), who happened to be dating Folger's former girlfriend, Gloria Jern ("Jern"); Jern had broken off her relationship with Folger in February of 1997.

Late on the night of February 6, 1998, Tomczak was at a bar in the City of Depew called The Clover with Jern after having gone bowling with friends. At about 1:45 a.m., Folger appeared at a bar across the street from The Clover called Margie's. Leigh Ann Wacht ("Wacht"), a good friend of Jern's, was working at Margie's that night. She telephoned Jern at The Clover and told her not to come over to Margie's because she knew of the problems Jern had with Folger. Folger apparently knew Jern was at The Clover, as he had seen her car in the parking lot. After Folger left Margie's at about 2:45 a.m., Wacht called Jern to alert her.

Jern walked outside to make sure that Folger was leaving, and then Tomczak joined her outside. Upon seeing Folger walk to his car in Margie's parking lot, she assumed that he was leaving. Folger got into his car and then drove by the two slowly, glaring at Jern without saying anything. When Jern saw Folger put his directional signal on, she assumed that he was coming back. Jern and Tomczak then moved into an alley and watched for Folger for a few minutes. At that time, they noticed Folger standing in the parking lot at Margie's. Jern wanted to stay there until Folger left, but she was not wearing her coat. Tomczak told her to go back inside The Clover, saying that he would stay outside and watch to see what Folger did. Jern returned inside The Clover to wait for Tomczak.

From the window at Margie's, Wacht had seen Tomczak walking toward the parking lot. Minutes later, Robert Dziengielewski ("Dziengielewski") drove into Margie's parking lot and observed Tomczak lying on his back on the ground. To Dziengielewski, Tomczak's face "looked like a smashed-in pumpkin" with "blood coming from every place on his face." T.162.*fn1 Before running inside to Margie's to get help, Dziengielewski looked at the clock in his car and saw that it was 2:53 a.m. Another passer-by, Michael Oddo ("Oddo"), heard gurgling sounds coming from Tomczak so he turned Tomczak on his side.

By the time the paramedics arrived, Tomczak had no pulse. Dr. Fazlollah Loghmanee performed the autopsy on Tomczak, who was 5' 111/2 " tall, weighed 205 pounds, and was thirty-seven years-old at the time of his death. Dr. Loghmanee found areas of abrasion and swelling on the back of Tomczak's head, caused by contact with a flat surface. T.495, 528. Tomczak had also sustained fractures of his nose and cheekbone, and one tooth and a dental plate had been dislodged and had caught in his throat. T.501-02, 522, 525-26. Tomczak had lacerations and hemorrhages on the side of his head, and multiple bite marks on the sides and underneath his tongue. T.520. Dr. Loghmanee observed blood in Tomczak's nasal and oral cavities, his airway, and the alveoli of his lungs. T.501, 510, 542. He also saw indications that Tomczak's brain had swollen. Based on these findings, Dr. Loghmanee testified that Tomczak had sustained trauma to his head and face and that, to a reasonable degree of medical certainty, he had died from asphyxiation due to aspiration of his own blood as a result of blunt force trauma to his face. T.513.

On cross-examination, Dr. Loghmanee agreed that Tomczak's injuries could have been inflicted by simple punches and that Tomczak could have been knocked unconscious by falling and hitting his head on the pavement. T.514, 518. Dr. Loghmanee acknowledged that Tomczak had a large, nonmalignant brain cyst near his optic nerve. According to Tomczak's personal physician, Tomczak had been treated for high blood pressure and high cholesterol but had not complained of any symptoms associated with the type of brain cyst that he had. T.531, 534. Dr. Loghmanee admitted that the first symptom of such a cyst could be a seizure.

The defense called Dr. Louis Roh, Deputy Chief Medical Examiner for Westchester County. Contrary to Dr. Loghmanee, Dr. Roh testified that if Tomczak really had died after aspirating his own blood, the slides of Tomczak's lung tissue would have depicted red dots of blood in the cells of the tissue. However, Dr. Roh found that the victim's lung tissue appeared normal. T.600-02. Dr. Roh testified that he found no evidence that the victim's brain had swollen. T.607-09. Although he conceded that the victim's facial injuries were caused by blunt trauma, he testified that neither the nose fracture nor the cheekbone fracture was a fatal wound.

T.617. However, Dr. Roh conceded that the facial injuries could have resulted from being kicked. T.645. Dr. Roh concluded that, to a reasonable degree of medical certainty, the victim had died of a seizure. T.604, 624. He based this conclusion on the presence of the brain cyst, the numerous bite marks on the sides of and underneath the victim's tongue, and the presence of foam around the victim's mouth. T.604-05.

Dr. Roh acknowledged on cross-examination that it was "strange" that Tomczak would live his whole life without any symptoms from the cyst and then coincidentally die of a seizure at the same time he received an extensive beating. T.648. On redirect examination, Dr. Roh testified that being involved in a "some kind of hand-to-hand fighting" could trigger a seizure. T.683.

To rebut Dr. Roh's testimony, the prosecutor called Dr. Michael Baden, a part-time director of medical/legal investigation for the New York State Police, who testified that in his opinion, the victim sustained blunt force trauma to the face which caused obstruction of his trachea--first by blood, and then by his teeth and dental plate. T.709. Dr. Baden opined that the victim's facial injuries were more consistent with being kicked by a boot than by being punched.

T.718. Dr. Baden testified that presence of foam at the mouth was not a sign of a seizure and that bite marks occur in only ten percent of all seizures and therefore were not diagnostic. T.757-58. He further explained that the growth on Tomczak's brain was a dermoid cyst, an abnormal growth of skin that existed from birth. T.712-13. Dr. Baden deemed it an incidental finding that had nothing to do with the cause of death.

With respect to the physical evidence found on the night of the arrest, the police discovered blood on the driveway of Folger's house, as well as on the rear panel, the floor mat, and the gas pedal of Folger's car. The results of the DNA testing indicated that it matched Tomczak's blood. T.264-66, 393-95, 488-90. Officer McCracken telephoned Folger's apartment to gain entry; when Folger did not answer, the officer left a message on the answering machine but to no avail. T.267-68, 271. Finally, after obtaining a search warrant, the police broke down the door. Inside the house the police found blood on Folger's jacket and right boot, as well as on the carpet, a chair, and some facial tissue. Folger's blood was on the tissue and on part of his jacket; the rest of the blood was Tomczak's. T.397, 489-90. The only visible injury sustained by Folger was a scrape on his knuckle.

Folger took the stand and testified in his own behalf. Although he did not explain why he had gone to Margie's that night, he did say that he looked out the window a few times toward The Clover. He stated that he knew that his ex-girlfriend, Jern, was at The Clover. Folger stated that when he left Margie's, he intended to go home. However, he became "curious" when he saw Jern and Tomczak together. After he drove by the pair slowly without saying anything, he felt "a little upset." T.778-80, 802-03, 807. Folger then decided to return to Margie's for another drink and to catch "another glimpse" of Jern. T.808.

According to Folger, Tomczak casually walked from The Clover toward the parking lot of Margie's. Folger said that Tomczak "looked pretty big" as he was crossing the street; he then denied that he was "sizing up" Tomczak. T.822.*fn2 Folger conceded that Tomczak did not have any facial injuries at that point. T.831, 833. According to Folger, Tomczak said nothing until he was within punching distance, at which point he said, "What the fuck is your problem?" Tomczak then swung twice at Folger; these punches only "clipped" and "grazed" Folger because he was able to "duck back." T.781, 827.

Folger got Tomczak in a headlock and started "punching him in the face." T.819. Folger had no idea how many times he hit Tomczak in the face. T.823. Folger stated that Tomczak was throwing punches at him, too. T.854. According to Folger, they both fell down and rolled ...

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