Burgess v. Bell
| Decision Date | 17 November 2010 |
| Docket Number | Case No. 07-11367 |
| Parties | ARTHUR L. BURGESS, Petitioner, v. THOMAS K. BELL, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
The petitioner, Arthur L. Burgess, was convicted of murdering three people in 1974. The crimes had gone unsolved for three years, but in 1977 two individuals involved in unrelated criminal prosecutions came forward with information that Burgess had admitted to them that he committed the 1974 killings. Burgess was then charged and brought to trial in the Wayne County, Michigan circuit court. His jury convictions were affirmed by the state appellate courts and a 1981 petition for habeas corpus was dismissed by this Court without prejudice for failure to exhaust all the stated claims at the time. In 2003, Burgess filed a post-conviction motion for relief from judgment in the state trial court, arguing that he recently discovered potentially exculpatory evidence that the prosecutor had not disclosed to him before trial, the trial court committed certain evidentiary errors, and his trial and appellate lawyers were constitutionally ineffective. A different state court judge held hearings on the motion, since the original trial judge had retired. The hearings consisted of arguments by counsel and the presentation of documents from the record and affidavits; no testimony was taken. On December 2, 2005, the state court announced its decision denying the motion, finding that the petitioner either had actual knowledge of the information he contended was suppressed or he could have readily obtained it. In 2007, Burgess filed through counsel the present petition for writ of habeas corpus, which focuses primarily on the argument that critical evidence material to the petitioner's guilt was suppressed by the state. He renews his ineffective assistance of counsel arguments as well.
The Court concludes that the there is abundant support in the record for the state court's conclusion that the evidence the petitioner contends was suppressed actually was known — and sometimes used at trial — by his trial counsel. The Court also finds that the petitioner has not satisfied both the deficient performance and prejudice components of the applicable test for ineffective assistance of counsel. There were no violations of the Sixth Amendment or Due Process Clause, and the petitioner in not entitled to a writ of habeas corpus. His petition, therefore, will be denied.
The record in this case is not complete. Several pages are missing from the trial transcripts and only small fragments exist for many of the trial-day volumes. Both sides filed briefs in the state court of appeals on direct appeal, which contain detailed factual summaries, and it appears that there is no dispute over the contents of the trial record or the core facts of the case. The Court's factual summary is drawn from the transcripts, the direct appeal documents, and the petitioner's brief filed in this Court. The respondent did not file a timely response.
The murder victims — Leslie Kinsman, Victor Bossio, and James Ketelaar — were killed on April 14, 1974 at an apartment in Dearborn, Michigan. The apartment was occupied by Leslie Kinsman, his wife Mary, and their three-month-old son. Mary testified at trial that she had been married to Leslie for nine months and knew that he made his living by selling illegal drugs from their home. James Ketelaar was Leslie's body guard, and Victor Bossio was their landlord who lived in the basement apartment.
Mary testified at trial that she was home on April 12, 1974 when a friend named Roman Poronczuk came over to visit at about 9:00 p.m. He asked if he could take a shower. Roman was in the bathroom, and James Ketelaar and Leslie were elsewhere in the house when Mary heard someone enter the side door to the house, which led jointly to both the Kinsmans' upstairs and Bossio's basement residences. A few minutes later, Bossio came up the stairs, knocked on the kitchen door, and stated that he wanted to see Leslie in the basement. Leslie Kinsman went to the basement alone.
Shortly thereafter, Mary, while in the bedroom with her baby, heard three shots from the basement. She started for the kitchen with Ketelaar ahead of her. She heard someone running up the stairs. Ketelaar stepped into the open door and shouted "what the hell is going on." Mary then heard another shot and saw Ketelaar fall backwards. Mary heard the outer door slam and a car start and speed away.
Mary yelled downstairs for Leslie with no response. Finally, she walked down the stairs, and as she stepped into Victor Bossio's apartment she saw Bossio lying on the floor with his face covered with blood. She ran up the stairs and called Oakwood Hospital. She was told to call the police. Mary testified that she got Roman Poronczuk out of the shower. Both were in shock and confused. After some delay, they called some friends who called the police. The police arrived within minutes.
When the Dearborn police officers arrived at the crime scene around 10:30 p.m., they discovered the bodies of Leslie Kinsman and Victor Bossio in the basement, and the body of Jim Ketelaar in the dining room. The Dearborn officers preserved the scene for State Police Crime Lab experts. In their cursory review of the crime scene, they observed that Roman Poronczuk had wet hair and the shower appeared to have been recently used. Poronczuk testified that he was in the shower when the shooting occurred. He admitted that he took some heroin when he arrived at the house. He said that he knew Leslie Kinsman was involved in drug trafficking.
The Michigan State Police technician was able to determine that the trajectory of the single bullet fired upstairs passed through Ketelaar, which was consistent with Mary Kinsman's description of the events. The technician also testified that the blood stains found in the basement, the stairs leading from the basement, and the outside door knob were consistent with the blood types of Victor Bossio and Leslie Kinsman. The state police technical witness testified that bullet fragments found at the scene were consistent with having been fired from a.38 caliber pistol. The latent fingerprint expert testified that no fingerprints matching the petitioner's were found at the scene.
Mary Kinsman testified that she first met petitioner Burgess in February 1972 in New Orleans. She stayed with him and his wife for five months before the trio moved to Las Vegas. During that same period of time and continuing for several months, Mary testified, she had sexual relations with the petitioner, who was going to leave his wife for Mary.
In the fall of 1972, Mary met Leslie Kinsman and ended her affair with the petitioner. The next time she had contact with him was at the funeral home after Leslie Kinsman was killed. She next saw the petitioner at a restaurant in Ohio in the fall of 1974. She was staying in Ohio with her parents when the petitioner called her. He said he was no longer with his wife and wanted Mary to return to Detroit with him. Mary said the petitioner refused to allow her to mention Leslie's name during their conversation.
The two witnesses who implicated the petitioner in the murders were Scott Allan Croydon and Claude Johnson. Croydon refused to testify, so the trial court allowed his preliminary examination testimony to be read to the jury. He said that he had first met the petitioner around March 25, 1976. He stated that on several occasions, the petitioner told him that Claude Johnson knew too much information about a triple murder that the petitioner had committed in Dearborn in 1974 and he had heard that Johnson was spreading that information. Croydon testified that petitioner Burgess told him one of the people he killed was named Kinsman, and he killed him because Kinsman was "messing around with his old lady and (had) crossed him on some deals-business deals, dope deals." Tr., Oct. 19, 1977, at 157; see also Tr. of Prelim. Exam. Hr'g, May 6, 1977, at 104. Burgess also told Croydon that he killed two other innocent people, one being the landlord. Croydon testified that "he had to take them out because they were witnesses." Tr., Oct. 19, 1977, at 158; see also Tr. of Prelim. Exam. Hr'g, May 6, 1977, at 104. According to Croydon, the petitioner explained that he had shot and stabbed the people, then left in a car and later asked Claude Johnson to pick him up at another location to get rid of the guns.
Croydon then testified about the petitioner's effort to eliminate Claude Johnson. He said that on April 12, 1976, Gerald Hessel (the petitioner's son) and he went to the petitioner's apartment in Roseville because the petitioner planned to go to Johnson's house to kill him. At the apartment, Hessel called Claude Johnson, telling him that he and Croydon wanted to come over to buy some marijuana from Johnson.
Croydon said the petitioner took a.45 caliber automatic pistol and gave Hessel and Croydon each a hunting knife, telling them that these were the knives he used during the Dearborn murders. The three drove to Johnson's house in two cars. The petitioner gave Hessel the pistol and waited in one of the cars while Hessel and Croydon went to get Johnson. Hessel, Johnson, and Croydon went to Johnson's car, supposedly to purchase the marijuana. When they got to the car, Hessel pulled the gun and ordered Johnson to the petitioner's car, threatening to rob Johnson. Johnson protested, saying that he would give Hessel and Croydon anything but that they did not have to rob him.
Croydon said that the petitioner then appeared behind the wheel of the other car. Johnson was ordered into that car. Hessel then drove, with Johnson and the petitioner in the back seat. Croydon was ordered to follow them in another car. Croydon observed their car out of control; it pulled off the road and Johnson jumped out. The...
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