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Powers v. Lord

November 2, 2006


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



Represented by counsel, petitioner Nancy Powers ("Powers") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her conviction in Erie County Court on charges of second degree murder (N.Y. Penal Law § 125.25(1)) and fourth degree criminal possession of a weapon (N.Y. Penal Law § 265.01(2)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition is dismissed.


Powers was arrested for, and convicted of, the murder of Jack Jarmack ("Jarmack"). Jarmack was the ex-husband of Kathy Phillips ("Phillips"), with whom Powers was in a romantic relationship at the time. He also was the father of three children with Phillips. Powers was the only witness to the events of December 15, 1997, the night on which Jarmack was killed in his home in East Aurora, outside the City of Buffalo.

Powers was tried before a jury in Erie County Court (Buscaglia, J.). At trial, the prosecution presented the results of the autopsy, which indicated that Jarmack had been stabbed twenty-five times before he died, including seven wounds to the right front chest area, eight to the abdominal area, one to the groin, five to the back (three to the left back and two to the right back), one to the right scrotum, one to the left buttock, and one defensive wound to each arm.

T.1588-90, 1591.*fn1 The proof indicated that Jarmack had been stabbed with several different knives. According to the medical examiner, many of the wounds, individually, would have been fatal: Jarmack's pulmonary artery, lungs, liver, and spleen had been damaged as a result of the stabbings. T.1607-09. He also had suffered a neck wound which had caused him to bleed into his oral cavity. The medical examiner found the broken-off tip of a knife blade in Jarmack's chest, embedded in his sternum. T.1584-85, 1598-1604. Furthermore, Jarmack sustained two wounds to his neck after he was dead, according to the medical examiner. Apparently, the wounds were bloodless; had Jarmack been alive when he had received them, the wounds would have bled.


Powers testified in her own behalf at trial in support of a defense theory of justification.

She testified that as she was walking to her parents' car in the parking lot of the Ames Plaza in East Aurora at about 9:15 p.m., someone put a sharp instrument to her neck as she was about to open the car door and said "Hey, Nance, get in the fucking car." T.1901. Powers stated that she immediately recognized the voice as Jarmack's.*fn2 According to Powers, Jarmack forced her to drive to his house.*fn3 Once there, according to Powers, Jarmack first shoved her into a bedroom and then into the living room, where he sat her down on the couch and began yelling at her, gesturing with a knife which he was resting against his knee. T.1908-10.

While they were arguing, Powers remembered that she had a can of pepper spray in her pocket.*fn4 T.1910. Powers sprayed Jarmack in the face; he became angry and slashed at her neck with a knife. Powers testified that she ran into the kitchen, picked up a knife off the counter, and stabbed Jarmack; she was not sure how many times she made contact. T.1911-12, 1915. Powers related that Jarmack chased her throughout the house and that at least twice, they had ended upon the floor with Jarmack on top of her. T.1914, 1918. Powers could not explain, however, how Jarmack had five stab wounds to his back. T.1985. Powers testified that Jarmack swung a bayonet knife at her but she blocked him by using her forearms.*fn5 T.1912-13.

Powers related that when she stabbed Jarmack in the chest, he fell to the ground. T.1919. At that point, Powers ran outside carrying a knife with her.*fn6 T.1920. Powers related that she got into her parents' car and drove around aimlessly. She testified that she had gotten lost, ended up on Route 400, and then drove to her parents' home in Orchard Park via the Thruway and Route 219. T.1921-23. Powers said that eventually made it home to her parents' home about two hours after the time she said she had left Jarmack's house. Her parents called 911 at 11:43 p.m.; the police and paramedics came immediately. Powers testified that she bled heavily from her wounds and was afraid that she might die from them.*fn7 T.2002.

According to Officer Bucilli, the paramedic/EMT who was the first officer to see Powers at her parents' home, testified that her wounds looked "fresh," even though more than two hours had elapsed since the alleged struggle. T.729-30. Powers told him that Jarmack was at his house, if he was "still alive." T.731, 783.

Powers told Dr. Leary, the emergency room physician, that Jarmack had stabbed her in the neck while they were driving in the car, and that he had stabbed her twice more at his house.

T.113-15.*fn8 Dr. Leary, testified that the cuts she exhibited on her left neck, left armpit, and left chest were "superficial" and "consistent with being self-inflicted." T.121-24.*fn9 Dr. Leary testified over defense objection that individuals who have been stabbed, as Powers claimed to have been, have wounds on their arms which "are usually considered defensive type wounds." T.119. In his experience, defensive-type wounds usually occur on the forearm or on the hands because "when people are defending themselves they usually use their forearm and hands and those are the areas where they get cut." T.119-20. As noted above, Dr. Leary found no injuries at all on Powers' forearms or hands. T.120.

When the police found Jarmack, he was lying on the floor in the hallway in a prone position with a broken knife-blade to his left and a knife embedded in his chest. T.100, 1584. A military-issue bayonet and a shotgun were found near his body. T.265, 994. Jarmack was wearing a t-shirt, underwear, and nylon sweatpants. T.101.

Items recovered from the vehicle driven by Powers included a knife, a pair of plastic goggles, a store receipt for pepper spray, and a camouflage-patterned neoprene rubber sock insert. The sock appeared to match one that had been found in a gym back discovered alongside the Route 400 expressway in East Aurora on December 16, 1997. T.1707-08. The bag also contained a pair of white socks, blue Reebok pants, a pair of white long johns, a black t-shirt, a roll of grey duct tape, a bayonet sheath, hunting boots, and a BB gun. T.1224-29.*fn10 Testing revealed that the plastic goggles contained DNA consistent with Powers' DNA, and the defense expert conceded this. T.1317-18, 1353, 1802.

Upon examining the physical evidence, the police noticed that the bayonet sheath had the initials "JSP" carved into it. They contacted Powers' ex-husband, Jeffrey Powers, who was skeptical when he heard that his former spouse was a murder suspect. At first, he testified that he falsely diagramed how his initials appeared in an attempt to test the integrity of the police officers. T.607-09, 1392-95, 1409-10. After he spoke to the police, Jeffrey Powers received a phone call from his ex-wife. She told him what had happened that night and said that when she left Jarmack's house, he was alive but not moving. T.614-15. According to Jeffrey Powers, petitioner asked him not to testify. When he told petitioner that he had identified the bayonet sheath as his and told the ...

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