Birch v. Town of New Milford
| Docket Number | 3:20-cv-1790 (VAB),Rel. 3:20-cv-1792 (VAB)] |
| Decision Date | 21 July 2023 |
| Parties | RALTH BIRCH AND SHAWN HENNING, Plaintiffs, v. TOWN OF NEW MILFORD et al., Defendants. |
| Court | U.S. District Court — District of Connecticut |
RULING AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Ralph Birch has sued the Town of New Milford, David Shortt, Steven Jordan, and Robert Santoro (collectively the “Town Defendants”), as well as Andrew Ocif, Scott O'Mara John Mucherino, Joseph Quartiero, Michael Graham, Brian Acker, and Dr. Henry Lee under 42 U.S.C. § 1983 and state common law torts for alleged fabrication of evidence malicious prosecution, and suppression of material exculpatory evidence, which allegedly resulted in Mr Birch's wrongful conviction for felony murder and burglary and subsequent incarceration for more than thirty years. See First Am. Compl., No. 3:20-CV-1790, ECF No. 54 (Apr. 16, 2021) (“Am. Compl.”).
Shawn Henning, a co-defendant with Mr. Birch in the state criminal proceeding, likewise has sued Andrew Ocif, Scott O'Mara John Mucherino, Joseph Quartiero, Michael Graham, Brian Acker, H. Patrick McCafferty, and Dr. Henry Lee (collectively the ) and Town Defendants, alleging virtually the same claims. See Compl., No. 3:20-CV-1792, ECF No. 1 (Dec. 2, 2020) (“Compl.”).[1] Andrew Ocif, Scott O'Mara, Joseph Quartiero, Michael Graham, and H. Patrick McCafferty were, at all relevant times, Detectives in the Connecticut State Police. Am. Compl. ¶¶ 40-41, 44-45; Compl. ¶ 38. John Mucherino and Brian Acker were, at all relevant times, Sergeants in the Connecticut State Police. State Police Sergeant Acker was the highest-ranking police official assigned to the Carr murder investigation and he retained supervisory authority over the investigation as a whole. Am. Compl. ¶¶ 42, 46. Dr. Henry Lee (“Dr. Lee”) was, at all relevant times, the Director of the Connecticut State Forensic Laboratory. Id. ¶ 47.
David Shortt was, at all relevant times, a Detective in the New Milford Police Department, see Id. ¶ 48, and Steven Jordan was, at all relevant times, a Police Officer in the New Milford Police Department, id. ¶ 43. The Town of New Milford is a municipal corporation organized under the laws of the State of Connecticut. Id. ¶ 39.
Mr. Birch and Mr. Henning (collectively “Plaintiffs”) filed a joint motion to consolidate their cases on February 3, 2021, and the Court granted that motion, thereby consolidating Birch v. Town of New Milford et al., No. 3:20-cv-01790, with Henning v. Town of New Milford et al., No. 3:20-cv-01792. See Order, ECF No. 27.
All of the Defendants moved to dismiss some of Plaintiffs' claims, and the Court denied those motions.[2] See Orders, ECF Nos. 70, 71 (Sep. 24, 2021). Following discovery, certain State Defendants and all of the Town Defendants have now moved for summary judgment on Plaintiffs' claims. More specifically:
In addition to opposing the various motions, Plaintiffs have moved for summary judgment against Dr. Lee as to liability. See Pls.' Joint Mot. for Partial Summ. J. against Dr. Lee, ECF No. 124; Mem. in Supp. of Pls.' Mot. for Summ. J., ECF No. 125 ( ).
For the following reasons, Dr. Lee's motion to amend his Answer is DENIED. His motion for summary judgment also is DENIED.
Plaintiffs' partial motion for summary judgment against Dr. Lee as to liability is GRANTED.
The State Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Specifically, State Police Sergeant Acker's motion for summary judgment as to Plaintiffs' fabrication claim, with respect to his knowledge of a fabricated supplemental police report, is GRANTED. In all other respects, including the remaining claims of fabrication of evidence, State Police Sergeant Acker's motion for summary judgment is DENIED. The remaining State Defendants' motion for summary judgment is DENIED as to all other claims raised in it.
The Town Defendants' motions for summary judgment are DENIED. I.FACTUAL AND PROCEDURAL BACKGROUND
Sometime either on the evening of December 1, or the morning of December 2, 1985, someone killed Everett Carr, a New Milford resident, in his home. State Defs.' Local Rule 56(a)(1) Statement of Material Facts ¶ 1, ECF No 128-2 (State Defs.' SMF”). The assailant or assailants stabbed Mr. Carr twenty-seven times, struck him in his head multiple times, and severed his jugular vein. Pls.' Local Rule 56(a)(1) Statement of Material Facts ¶ 2, ECF No 126 . When members of the New Milford Police Department and State Police Western District Major Crime Squad responded to the Carr residence on December 2, 1985, State Defs.' SMF ¶ 2, they found Mr. Carr's blood pooled on the floor and splattered from the floor nearly to the ceilings, id. ¶ 3.
In the early morning of December 2, 1985, members of the New Milford Police Department and State Police Western District Major Crime Squad responded to investigate the murder of Mr. Carr. State Defs.' SMF ¶ 2. State Police Sergeant Acker coordinated the early days of the investigation. Id. ¶ 3. He supervised evidence collection, prepared lead sheets, attended meetings with investigators and assigned tasks to officers who were assigned to the investigation. Id. ¶ 4. State Police Detectives Ocif, O'Mara, Quartiero, Graham, and H. Patrick McCafferty as well as State Police Sergeant Mucherino, also assisted with the investigation. Id. ¶ 6.
When police processed the crime scene, they photographed a bathroom upstairs in which two towels were hanging next to the sink. One of the towels appeared to have a red-colored stain of some kind on it. Am. Compl. ¶ 308; State Defs.' Answer ¶ 308.
As Director of the Connecticut State Forensic Laboratory, Dr. Lee worked on the Carr murder investigation, Dr. Lee's SMF ¶¶ 1-2, and took pictures in the bathroom of the Carr home, which were developed into slides, including one picture of a white towel hanging on a bar in Mr. Carr's bathroom, id. ¶ 3. Dr. Lee did not create any written documents memorializing any testing or analysis that he either did or did not perform on the white towel. Id. ¶ 4. Dr. Lee did not take “any notes” regarding his test. Dr. Lee's Resp. to Pls.' SMF ¶ 25.
Dr. Lee later told the prosecutor, then-Assistant State Attorney David Shepack, that he had tested the bathroom towel and that the test was positive for blood. Pls.' SMF ¶ 15; Dr. Lee's Resp to Pls.' SMF ¶ 15.
The lead investigator, State Police Detective Ocif, noted that he had “never seen that kind of violence in a burglary.” Id. ¶ 6. He and some of his colleagues focused on Mr. Henning and Mr. Birch, who were seventeen and eighteen years old at the time, respectively, as suspects in the Carr homicide because Mr. Birch and Mr. Henning had admitted to conducting daytime burglaries in the area. Id. ¶ 10.
On December 5, 1985, New Milford Detective Samoska and State Police Detective McCafferty questioned Mr. Birch about his activities with Mr. Henning and Tina Yablonski in connection with the theft of a car and the commission of multiple burglaries in New Milford, and Mr. Birch provided them a sworn statement. Pls.' Resp. to State Defs.' SMF ¶ 7.
On December 6, 1985, New Milford Police Patrolman Lynch interviewed Mr. Henning about his activities with Mr. Birch and Tina Yablonski in connection with the theft of a car and the commission of multiple burglaries in New Milford. Id. ¶ 8.
Mr. Birch and Mr. Henning “confessed to using the car in connection with the commission of several burglaries,” unrelated to the alleged robbery of the Carr residence. Henning v. Comm'r of Corr., 334 Conn. 1, 8 (2019). Mr. Birch and Mr. Henning later were arrested and charged in connection with the stolen car.[4] While in custody pending trial on those charges, Mr. Birch and Mr. Henning were again interviewed regarding the Carr murder. Id.
One investigator, Captain Nobert Lillis of the New Milford Police Department, who interviewed Mr. Henning and Mr. Birch shortly after the homicide, immediately expressed his opinion during the investigation that the focus on Mr. Henning and Mr. Birch was misguided and that they were not involved. Dr. Lee's Resp. to Pls.' SMF ¶ 8. After he expressed his opinion, Captain Lillis allegedly was removed from the investigation. Id. ¶ 9.[5] On December 9, 1985, a week after the murder, State Police Detective O'Mara and State Police Sergeant Mucherino interviewed Mr. Birch. State Defs.' SMF ¶ 9. In the police report memorializing the interview, they noted that...
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