846 F.3d 547 (2nd Cir. 2017), 14-4662-cv, Restivo v. Hessemann

Docket Nº:14-4662-cv
Citation:846 F.3d 547
Opinion Judge:POOLER, Circuit Judge :
Party Name:JOHN RESTIVO, DENNIS HALSTEAD, Plaintiffs-Appellees, v. CAROLANN HESSEMANN, as executrix of the Estate of Joseph Volpe AKA Joseph Volpe, Defendant-Appellant. [1]
Attorney:ANNA BENVENUTTI HOFFMANN (Alexandra Lampert, on the brief), Neufeld Scheck & Brustin, LLP, New York, NY, for Plaintiffs-Appellees. RICHARD M. LANGONE (Peter J. Tomao, on the brief), Garden City, NY, for Defendant-Appellant.
Judge Panel:Before: POOLER, PARKER, LIVINGSTON, Circuit Judges. Judge Livingston concurs in part and dissents in part in a separate opinion. CONCUR BY: DEBRA ANN LIVINGSTON (In Part) Debra Ann Livingston, Circuit Judge, concurring in part and dissenting in part:
Case Date:January 19, 2017
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 547

846 F.3d 547 (2nd Cir. 2017)

JOHN RESTIVO, DENNIS HALSTEAD, Plaintiffs-Appellees,

v.

CAROLANN HESSEMANN, as executrix of the Estate of Joseph Volpe AKA Joseph Volpe, Defendant-Appellant. 1

14-4662-cv

United States Court of Appeals, Second Circuit

January 19, 2017

Argued April 5, 2016

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ANNA BENVENUTTI HOFFMANN (Alexandra Lampert, on the brief), Neufeld Scheck & Brustin, LLP, New York, NY, for Plaintiffs-Appellees.

RICHARD M. LANGONE (Peter J. Tomao, on the brief), Garden City, NY, for Defendant-Appellant.

Before: POOLER, PARKER, LIVINGSTON, Circuit Judges. Judge Livingston concurs in part and dissents in part in a separate opinion.

OPINION

Page 552

Appeal from United States District Court for the Eastern District of New York (Joanna Seybert, J. ) judgment in favor of plaintiffs-appellees John Restivo and Dennis Halstead following a jury trial. Defendant-appellant Carolann Hessemann, as executrix of the Estate of Joseph Volpe, (" Volpe" ) challenges the district court's grant of Restivo and Halstead's motion for a new trial; several evidentiary rulings at the second trial; the district court's holding that Volpe was not deprived of a fair trial because his counsel was allegedly operating under a conflict of interest; the district court's denial of Volpe's motion for remittitur and a setoff of damages; and the district court's grant of attorneys' fees to counsel for Restivo and Halstead. For the reasons that follow, we affirm the judgment of the district court.

POOLER, Circuit Judge :

Appeal from United States District Court for the Eastern District of New York (Joanna Seybert, J. ) judgment in favor of plaintiffs-appellees John Restivo and Dennis Halstead following a jury trial. Defendant-appellant Carolann Hessemann, as executrix of the Estate of Joseph Volpe, (" Volpe" ) challenges the district court's grant of Restivo and Halstead's motion for a new trial; several evidentiary rulings at second trial; the district court's holding that Volpe was not deprived of a fair trial because his counsel was allegedly operating under a conflict of interest; the district court's denial of Volpe's motion for remittitur and a setoff of damages; and the district court's grant of attorneys' fees to counsel for Restivo and Halstead. For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND

In 1984, sixteen-year-old Theresa Fusco was raped and murdered in Nassau County. As will be described in greater detail below, then-21-year-old John Kogut confessed to the Nassau County Police, stating that he, John Restivo, and Dennis Halstead had participated in the rape of Ms. Fusco, and then murdered her. All three men were charged with the rape and murder. Restivo and Halstead were tried jointly, and in 1986, a jury found both men guilty of rape and second degree murder; they were sentenced to 33-and-one-third years to life. Kogut was tried separately, and was convicted by jury; he was sentenced to an indeterminate term of imprisonment of 37-and-one-half years to life.

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But in 2003, DNA testing was conducted on a slide containing cells taken from a swab of the victim's vagina after her body was found. The testing revealed the presence of DNA from two individuals: Ms. Fusco and an unknown man. The testing excluded Kogut, Halstead, and Restivo from having contributed that DNA. The DNA also did not match that of 86 other individuals known to Ms. Fusco. Based on this evidence, Halstead, Restivo, and Kogut's convictions were vacated. The State went to trial again against Kogut, primarily based on his confession, but, when he was acquitted, the State dropped the charges against Restivo and Halstead. Ultimately, Halstead and Restivo spent eighteen years in prison--two pretrial and sixteen following conviction--for these crimes. This civil suit, alleging malicious prosecution and denial of fair trial claims, among other claims, followed.

I. The Crime, Investigation, and Criminal Trial

In 1984, sixteen-year-old Theresa Fusco went missing. She was last seen on November 10, 1984 at 9:47 PM, when she clocked out of her job at Hot Skates, a roller rink, in Lynbrook, New York. A missing persons investigation began the next day, with then-Nassau County Homicide Detective Joseph Volpe acting as lead detective.2 Several weeks after Ms. Fusco went missing, on December 5, 1984, her body was found, naked, near the Lynbrook railroad tracks. As the medical examiner testified, the autopsy showed that she had been raped and that the cause of death was ligature strangulation.3 The medical examiner also determined that Ms. Fusco was most likely strangled with a rope, approximately one inch thick. On cross-examination, the medical examiner testified, based on the injuries to Ms. Fusco, that she believed that Ms. Fusco was strangled with pressure applied to the front of her neck with " rope or ligature, going from the back toward the neck, possibly crisscrossing with a lot of movement, and then both hands extending in the back of the neck." Trial Tr. at 719.4 She further testified that the rope " should be less than six feet, depending on how it was applied" because " both ends of the rope never touched the skin in the back," and that she would expect that there would be blood on the rope visible to the naked eye. Trial Tr. at 720-22. On redirect, she testified that, considering that thickness of the rope, it would have been easier to strangle Ms. Fusco if the rope were shorter, but clarified, " I don't know the length of the rope. I have no idea." Trial Tr. at 726.5

In late January 1985, Volpe heard that a man named Harry Smyle had been making suspicious statements about the murder. After an eleven hour interrogation and being told that he was a suspect, Smyle

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told police that Restivo had made a suspicious statement to him about the murder. Volpe then picked up Restivo. Volpe and Robert Dempsey, another Nassau County detective, interrogated Restivo for approximately eight hours over March 5, 1985 and March 6, 1985 and allegedly physically assaulted him. Restivo then signed a statement, which stated that he heard Halstead make admissions about the Fusco murder but that did not implicate Restivo. Specifically, the statement said: I would like to say that sometime back possibly November, December 1984, I stopped by my friend Dennis Halstead's apartment. He lives above the store on Atlantic Avenue.

. . .

When I saw him, I realized that he was also high. We were talking about 10 to 15 minutes and at this point and kind of out of the blue Dennis started to talk strange.

He started talking about a broad. Dennis said he was with a broad, a girl, and that he was either by a cemet[e]ry, in a cemet[e]ry, across from the cemet[e]ry.

He said he tried to fuck her. Then he had to fuck her up. But when he said that, he didn't tell me how he fucked her up. He then told me that he strangled her and killed her.

Appellees' Supp. App'x at 270. After Restivo was released, he contacted his attorney, Theodore Robinson, who called the homicide bureau and informed them he was representing Restivo and Halstead, and objected to the interrogation as coercive.

On March 21, 1985, police officers came to the home of John Kogut, who worked with Restivo and Halstead, and asked him to come to the police station for questioning in relation to Ms. Fusco's murder. Kogut complied; he denied knowledge of the crime, but agreed to come back on March 25. He returned on March 25, and was interrogated through the night. Kogut testified that Volpe and Dempsey screamed at him, threatened him, and told him that they had scientific evidence, witnesses, and statements demonstrating that he committed the crime. According to Kogut, Volpe stated to him, " I'm going to tell you how you did it because I already know how it happened." Appellees' Supp. App'x at 197. Volpe then told various stories, until Kogut finally gave in and agreed; Volpe wrote out a confession, which Kogut signed at approximately 9:00 AM on March 26. The written statement said: My name is John Kogut[.] I am 21 years of age, being born on 11-29-63. I live with my girlfriend Lisa Price and her father at 161 Traymore BLVD, Island Park. I am currently employed by Frank Bertini Landscaping, 2988 Bay View Court, Oceanside, phone RO-4-7483.

I have been told by the detective that I have the right to remain silent and that any statements I make may be used against me in court. I have been told that I have the right to talk with a lawyer before answering any questions or to have the lawyer present at any time. Further, I have been advised that if I cannot afford to hire a lawyer, one will be furnished [to] me and I have the right to keep silent until I have had the chance to talk with a lawyer.

I understand my rights and make the following statement freely and voluntarily. I am willing to give this statement without talking with a lawyer or having one present.

I would like to say that sometime back in Nov 1984, about a week or two before my birthday I was with these two guys. One was John Restivo, who I worked for[,] and the other was Dennis Halstead, a guy from Lynbrook I know, who also worked for Restivo. On this night, it

Page 555 was between 8:00 pm and 10 pm, I was with John Restivo and Dennis Halstead in John's van. It's a blue [F]ord step van, with a side door that opens. This door is located back from the right front passenger door. I seem to remember that we were coming down from a moving job, possibly Hempstead, and we were drinking beer and smoking pot. John was driving, Dennis was in the right...

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