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Klosin v. Conway

August 7, 2007


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


I. Introduction

Philip Klosin ("Klosin" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction in Wyoming County Court on charges of felony murder, robbery, and burglary. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

The conviction here at issue arose from a home invasion on November 6, 1992, in which three masked men forced their way into the home of forty-six year-old Memarie Stasio ("Mrs. Stasio") and her daughter, Jennifer Stasio ("Stasio") in the Town of Arcade. See T.278-84, 349-56. After holding the two women at gun-point and ransacking the house, the perpetrators fled, taking with them Mrs. Stasio's purse containing cash, credit cards, and her nitroglycerine pills used to treat her life-long heart condition. T.281-92. Mrs. Stasio, who was seen clutching her chest and hyperventilating uncontrollably immediately after the incident, was taken to the hospital that night. T.281-90. She was released early the next morning but continued to complain of weakness, headaches and sleeplessness. T.290-91. The victim's family found her dead in her home on November 8, 1992, less than two days after the incident.

Klosin, Smith and Lang were all arrested within twenty-four hours of the crime and charged with first degree burglary and first degree robbery. Klosin pled guilty to second degree manslaughter in satisfaction of all the charges and was sentenced to five to fifteen years in prison. On April 23, 1998, however, Klosin's conviction was reversed on his direct appeal due to a defect in the charging instrument. Klosin was re-indicted by a Wyoming County grand jury on June 12, 1998, on two counts of second degree murder under N.Y. Penal Law § 125.25(3) (felony murder incident to burglary and felony murder incident to robbery); one count of second degree (depraved indifference) murder under N.Y. Penal Law § 125.25(2); two counts of first degree robbery under N.Y. Penal Law §§ 160.15(3), (4); and one count first degree burglary under N.Y. Penal Law § 140.30(4). See T.763-64.

One week before Klosin's trial commenced in Wyoming County Court, prosecution witness Jody Elvers-Frank ("Elvers-Frank") disclosed to the district attorney's office that part of her testimony before the grand jury had been false. She stated that she although had testified truthfully that Klosin and the co-defendants had planned the robbery while they were all at a party in Springville earlier that evening, her testimony that she had stayed behind at the party while Klosin, Smith and Lang went to the commit the robbery was false. (R.22). According to Elvers-Frank, she was supposed to have been taken home by her boyfriend, Smith, but she passed out in the car during the drive. Elvers-Frank woke up in the car parked outside the Stasio home just as the robbery commenced. The prosecutor disclosed this information to Klosin's defense counsel and entered into a cooperation agreement with Elvers-Frank, which also was provided to defense counsel. Respondent's Brief on Appeal (citing R.17-19).

Trial commenced on December 9, 1998, before Judge Griffith. Jennifer, the victim's daughter, testified first for the prosecution. See T.276 et seq. She recounted that on the night of the incident, she was at home with her mother watching television when they heard a pounding at the door. Thinking that they had inadvertently locked their father out of the house, Jennifer said that her mother got up to answer the door. T.278. Jennifer then heard her mother scream; she jumped up and saw a masked man standing inside the house near the front door holding a gun.

T.279. As Jennifer attempted to go into the kitchen to get her father's gun, another masked man holding a gun intercepted her. She recounted that the fabric covering his face slipped and she recognized him as Lang, an acquaintance of hers from when she had gone to school in Springville. Lang forced her onto the floor in the front room where her mother was already lying face down with a gun pointed to her head. T.279-80. Jennifer testified that there were three perpetrators and they all had guns. E.g., T.284, 293.

Jennifer testified that the three men ransacked the house and kept pushing the guns in their faces, demanding to know where Mrs. Stasio kept her purse and her money. See, e.g.,

T.284. At that point, Jennifer testified, her mother lost control of her bodily functions and urinated and defecated on herself. T.284. Jennifer related that she got up and showed the intruders where her mother's purse was; it contained "credit cards and pictures, and a little bit of money, [and] her nitroglycerine pills[.]" T.285. Before the perpetrators left, they threatened to burn down the Stasio's house if the police were called. T.286.

Jennifer testified that her mother was "hysterical" and grabbing at her chest" after the incident and had to be helped as she crawled down the hallway on her hands and knees to her home office, where the phone was. T.286-87. When the police arrived, Mrs. Stasio was "slouching over, holding her chest, and she was having really bad dizzy spells" so the paramedics were called. T.288. Sergeant Ronald Ely, who responded to the scene, testified that Mrs. Stasio "was about the color of an apple, totally scared to death, trembling, shaking, could hardly walk, [and was] crying quite heavily." T.614. Jennifer searched the house but could not find any more of Mrs. Stasio's nitroglycerine pills for her heart condition; the only bottle apparently was in her purse, which had been taken. T.318. Mrs. Stasio was taken to the hospital and was discharged the following morning at about 4:00 a.m. T.290. Jennifer testified that after her mother came home, she "was really weak" and was "having really, really bad headaches and she couldn't sleep."

T.290. Mrs. Stasio refused to back to the hospital because she was afraid that the intruders were going to come back for her daughter. T.320.

Jennifer testified that at about 5 p.m. on November 8th, Mrs. Stasio went into her home office to do the payroll for her business after the family had had dinner. T.291. About fifteen to twenty minutes later, Jennifer heard her father "screaming for [her] to come in and call 911, that [her mother] had passed away." T.291.

Accomplice Michael Smith ("Smith"), who had since been released from prison for his part in the crime, testified for the prosecution. He related being at party in Springville on November 6, 1992, with Klosin and Lang, "drinking, doing drugs." T.344-46. They "didn't have no more money to buy booze or drugs . . . so [they] talked about robbing something, stealing it from someplace." T.347. According to Smith, Klosin also wanted money to go down to visit his girlfriend in Florida. T.347. Smith, Klosin and Lang, along with Smith's then-girlfriend, Elvers-Frank, drove in Smith's Jeep Wagoneer to the Stasio residence in the town of Arcade. T.349.

Smith testified that Elvers-Frank was not involved in planning the robbery and never got out of the truck that night. T.351. Smith had planned to drop her off at home before the robbery, but she was asleep in the back seat and he did not feel like waking her up. T.352. Smith testified that Elvers-Frank woke up just after they parked in front of the Stasio residence and said that they "shouldn't be doing this." T.352. Smith told her to "sit in the truck." Id. Smith related that he and Klosin and Lang wrapped t-shirts around their faces and walked up to the Stasio home. Klosin knocked on the door and they then "bashed" through it as Mrs. Stasio began to open the door. Smith's testimony regarding the events inside the house in all essential respects mirrored Jennifer's testimony except with respect to the issue of how many guns there were. Smith testified that only Klosin had a gun (a shotgun) while Jennifer stated that all three perpetrators had guns. Smith testified that Klosin threw the gun in the creek as they drove over the Mill Street Bridge outside of Springville. T.363. Smith discarded Mrs. Stasio's purse under a dumpster behind the Ames Plaza in Springville. T.363-64. (The purse later was recovered by Sheriff's Deputy Norman Cochise Redeye between two dumpsters behind the Amess Plaza. T.434)

Jody Elvers-Frank testified for the prosecution consistently with Smith's testimony regarding the party in Springville,the planning and commission of the robbery, her intoxication that night, and her lack of involvement in the crime itself. Smith asked her to throw Mrs. Stasio's purse in the dumpster, but she refused to do it. T.402. Elvers-Frank testified that he had not seen Smith in the past five or six years and said, "I'm actually afraid that after he hears that I told told the truth, I don't know what's gonna [sic] happen." T.400. Elvers-Frank testified that she did not tell the truth initially because Smith threatened her numerous times, saying, for instance, that he was "going to bury [her] in 20-Acre Lake if [she] said anything." T.431, 432-33.

Elvers-Frank admitted that when she testified in the grand jury six years previously, she had been untruthful when she said that she stayed at the party in Springville and had not admitted to being in the car with Smith and the others. T.403. She lied because Smith had told her that she should not even say she was present at the Stasio residence because she "had no part in it" and he did not want her to "mess up" their statements to the police. T.403. Elvers-Frank testified that she decided to come forward and tell the truth because she had too much to lose at that point in her life. T.403-04.

Robert Bergner, M.D., the victim's treating physician for thirty-two years prior to her death, testified that she had a long history of rheumatic heart disease and cardiac arrhythmias, arteriosclerotic and hypertensive heart disease, which was controlled and stabilized by various medications, including nitroglycerine, which dilates the coronary arteries and relieves spasms.

T.465-67; T.484; T.497. Dr. Bergner testified that as of 1992, Mrs. Stasio's condition had been stabilized and that she had been fully functional for many years. Dr. Bergner reviewed Mrs. Stasio's hospital records and the autopsy report and opined that, to a reasonable degree of medical certainty, the victim "died as a result of heart disease which had been aggravated by an emotional trauma and a physical trauma." T.470-72; T.522. The victim had an arrhythmia which created an insufficient supply of blood to the brain and she died as a result. T.472. Dr. Bergner testified that if Mrs. Stasio had access ...

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