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Horn v. Herbert

September 27, 2006


The opinion of the court was delivered by: William M. Skretny United States District Judge



Petitioner Kenneth Horn filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on charges of depraved indifference murder, felony murder, and burglary in New York State Supreme Court, Monroe County. Petitioner contends that his conviction was imposed in violation of his federal constitutional rights and should be vacated. For the following reasons, Kenneth Horn's Petition must be denied.


Sometime between May 25, and May 28, 1996, 22-year old Rusty Berger, a homeless man who was living in an abandoned van in the fenced salvage yard of Metter's Auto Parts on Clinton Avenue in the City of Rochester, was stabbed in the head during a robbery.*fn1 Employees discovered Mr. Berger on the morning of May 28, after Memorial Day weekend, semiconscious and bleeding from his head, laying inside the van, wrapped in blankets. Nearly all of the windows of the van were smashed. Blood was evident on the exterior and interior of the van, and on the windows. Several car radiators were missing from the business. Police and an ambulance were summoned to the scene, and Mr. Berger was transported to Rochester General Hospital for emergency treatment. Some three days later, on May 31, 1996, Mr. Berger died from the injuries he sustained to his brain.

An autopsy of Mr. Berger was performed the same day by Dr. Kim J. Panosian, a forensic pathologist. Dr. Panosian took a blood sample from the victim and submitted it to the Public Safety Laboratory. She conducted an external examination of the victim's body and found a small puncture type wound, approximately six millimeters in length and one millimeter in width, in his right temple region. An examination of the skull and brain revealed an oval-type defect or fracture of the skull just beneath the puncture wound, a hairline fracture of the skull, a hemorrhage or bleeding on the brain, and a penetration wound to the brain that was four and a quarter inches long with a variable width, approximately one inch wide at its greatest point.*fn2 Based on her findings, Dr. Panosian opined that Mr. Berger died as a result of a penetrating head injury.

The van in which the victim was discovered, a red, early-model Dodge, was towed and secured in a caged area of the Public Safety Building garage. There, a technician photographed the van, took numerous samples of suspected blood stains from the van's exterior, collected pieces of plexiglass with dry droplets of suspected blood from the van's interior and its windows, and removed the gaskets that secured the windows to the van.

The technician attempted, but was unable to lift any prints from the van that were capable of being identified.

Apparently, it was not until May of 1998, approximately two years after Mr. Berger's murder, that the police finally developed a lead in the case. At that time, Edward Luther, who was then engaged to Kenneth Horn's sister, Kathleen Horn, contacted the police about two conversations he had overheard that implicated Kenneth Horn in Mr. Berger's murder in May of 1996: one conversation between Kenneth Horn and a man known to Mr. Luther as Anthony, "Shorty," or "Heavy," and another between Kenneth Horn and his brother, Keith Horn. Specifically, in June of 1996, Mr. Luther overheard Kenneth Horn talking to Anthony about how he and his brother Keith "went to the junkyard to get some things," were confronted and "got into a fight." (T. at 597). According to Mr. Luther, Kenneth Horn told Anthony that the brothers went into the junkyard, where they were discovered by a man, that they chased the man, beat him up, and that Keith Horn "stuck him in the head with a screwdriver." (T. at 598-99). In June of 1997, Mr. Luther overheard Kenneth and Keith Horn talking about the fight they got into Metter's Auto Parts, how Kenneth had beat up the victim, and how when Keith struck the victim in the head with the screwdriver, "it went in like butter." (T. at 605).

Armed with this information, Sergeant John Gropp and Detective Vito D'Ambrosia, 30-plus year veterans of the Rochester Police Department assigned at that time to the "cold case" squad, brought Kenneth and Keith Horn in for questioning on June 16, 1998. Both suspects agreed to give blood samples, which were taken that day. Approximately two weeks later, on June 30, 1998, the officers questioned Kenneth Horn again, this time advising him that the blood analysis linked him and his brother Keith to unspecified crimes that occurred at Metter's Auto Parts. According to Sergeant Gropp, Petitioner responded "I have never been to Metter's, I didn't stab anybody there and you didn't get my blood there." (T. at 646). The officers denied telling Kenneth Horn at any time that the victim had been stabbed.

In July of 1999, Kenneth Horn's older brother, Kevin Horn, contacted the police regarding a conversation he had with Keith and Kenneth on Memorial Day weekend in 1996, the weekend that Mr. Berger was fatally injured. During this conversation, Kenneth told his older brother that he and Keith robbed a garage one night that weekend, that they fought with a man who confronted them, that Keith stabbed the man during the altercation causing him to fall to the ground, that they picked the man up, put him in the back of the van, and covered him up. (T. at 737, 744-45, 748, 751). Initially Kevin Horn did not believe his brothers' story, but decided to call the police when his wife saw a story about the incident at Metter's Auto Parts on the news three years later.

Kenneth Horn was indicted on four counts, intentional murder, depraved indifference murder, felony murder, and Burglary in the Third Degree, and charged as both a principle and an accomplice to his brother, Keith Horn. Kenneth Horn was tried before a jury in New York State Supreme Court, Monroe County. Numerous witnesses testified for the prosecution, including Mr. Luther and Kevin Horn, who related the conversations that they had been a part of or overheard regarding Kenneth Horn's involvement in Mr. Berger's death.

At trial, the parties stipulated in writing to the following facts regarding the physical evidence: the rubber gaskets, plexiglass, and petri dishes containing the red-brown material found on the exterior and interior of the van, one tube of Rusty Berger's blood, two tubes of Keith Horn's blood, and two tubes of Kenneth Horn's blood were submitted in a sealed and undisturbed condition to the Public Safety Laboratory. (T. at 724-26). Further, an analysis of these material revealed that: (1) the red-brown stains and materials from various locations on the van were human blood with similar blood enzyme characteristics; (2) Mr. Berger's blood had blood enzyme characteristics dissimilar to those of the stains and materials; (3) neither Keith Horn nor Kenneth Horn could be eliminated as possible donors of the blood recovered from the van; (4) that the combination of the enzyme forms detected from the blood evidence and the blood of Keith and Kenneth Horn occurs in approximately less that one percent of the Caucasian population; (5) that the DNA extracted from the plexiglass is consistent with the DNA profile developed in the DNA extracted from Keith Horn's blood and is inconsistent with the DNA profile of Kenneth Horn and Mr. Berger; and (6) that the possibility of randomly selecting an unrelated individual's blood with the same DNA profile as Keith Horn is approximately one in 119,000,000 Caucasians. (T. at 725-28).

As the sole witness for the defense, Keith Horn testified that he committed the burglary at Metter's Auto Parts on his own without any help from Kenneth Horn. (T. at 816). According to his testimony, Keith Horn, who was 5 foot, 7 inches tall and weighed approximately 135 pounds at the time of the burglary, struggled with the 6-foot, 180-pound victim, who was armed with a pipe, before he "stuck [the victim] with the screwdriver," causing him to fall back into the van. (T. at 335, 790, 793). Keith Horn further testified that he pulled the victim back inside the van and "busted some of the windows," because he "couldn't believe what had happened." (T. at 800).*fn3 On cross examination, the district attorney questioned Keith Horn about three prior burglaries that he had committed with the assistance of ...

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