Cook v. Nogan, Civ. No. 05-3916 (KM)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtKEVIN MCNULTY, U.S.D.J.
PartiesTHOMAHL COOK, Petitioner, v. PATRICK NOGAN, et al., Respondents.
Docket NumberCiv. No. 05-3916 (KM)
Decision Date22 November 2016

THOMAHL COOK, Petitioner,
v.
PATRICK NOGAN, et al., Respondents.

Civ. No. 05-3916 (KM)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

November 22, 2016


OPINION

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

The petitioner, Thomahl Cook, is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2000, Mr. Cook was convicted by a jury of first-degree murder. He is currently serving a sixty-year sentence with a thirty-year period of parole ineligibility. He asserts that his confession to the murder was involuntary and that counsel rendered ineffective assistance, among other claims. For the following reasons, the amended habeas petition will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND1

Fifteen-year-old Katrina Suhan was murdered sometime in the early morning hours of Saturday, February 14, 1998. She was seen last on that date at about 12:30 a.m., walking home from Roller Magic, a South Amboy roller-skating rink where she and her girlfriends frequently skated. A friend who had been with her, classmates driving by, and a security guard closing the rink, saw her walking alone on Stevens Avenue in South Amboy. Ordinarily it would have been at least a fifteen-minute walk from the rink to her home. At sometime between 12:30 and 1:00 a.m., a resident of Stevens Avenue heard a male and a female arguing outside his window. The male voice was saying "Come on. Let's go," and the

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female voice was saying, "No, I'm not going nowhere with you." Shortly thereafter, the resident thought he heard a scream come from across the street. Another neighbor on Stevens Avenue also heard a girl screaming, "Leave me alone. Don't touch me. Help me" at approximately 12:15 a.m. That resident testified that she heard two male voices urging the girl to "shut up" and to "be quiet."

Katrina's body was found on the afternoon of Sunday, February 15 in a rough wooded lot behind the Hill Lanes bowling alley located in the neighboring town of Old Bridge. The bowling alley was approximately three miles from where Katrina was last seen. She had been brutally beaten. Her body was positioned face downward and a jacket covered her head; her pants had been pulled below her waist. Large pieces of concrete lay atop her hands and head and an overturned red shopping cart was situated in front of, and partially on, her body. A trail of blood led to the body and to several rocks near her head. A forensic pathologist expressed the view that Katrina died of blunt trauma injury to the head. There was injury also to her left breast that was consistent with a bite mark; there were no other physical signs of sexual assault.

Defendant, who was twenty-four years old at the time of the murder, had been known to go to the roller rink in South Amboy and had been observed interacting with Katrina while there. [FN 1] Heather McKnight, who was defendant's girlfriend, Donna Pascale, Heather's fellow tenant in Agape House (a home for young females located in Somerville), and Robert Poquette, a tenant at the Somerville boarding home in which defendant resided, all testified that on the night Katrina was murdered defendant was looking for transportation to the South Amboy roller rink. According to Pascale, defendant told her that a friend had agreed to drive him to the rink. McKnight testified that defendant told her that he was going to the rink with a friend named "Noal." Apparently, McKnight was not planning to be with defendant that night as she intended to stay with her sister, who lived out of town, from Friday afternoon to Sunday afternoon.

[FN 1] A friend of Katrina's Heather Stonbely, testified to interactions that she had observed between defendant and Katrina several months before the murder when the two girls had been at the roller rink.

The record reveals certain information from third parties concerning defendant's whereabouts during the evening of Friday,

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February 13, 1998. At approximately 9:45 p.m. that night, defendant encountered fourteen-year-old T.S., and two of her friends, at the Bridgewater Commons Mall. T.S. testified that she spoke with defendant at the mall for twenty minutes to a half hour before all five departed, on foot. While walking to T.S.'s home, defendant commented to T.S. that she reminded him of "Kat," a shorthand reference that T.S. took to mean "Katrina." During the walk defendant also told her he was going to a skating rink in South Amboy to scare someone. T.S. recalled that she entered her home sometime between midnight and 12:30 a.m. that night, and defendant left on foot five or ten minutes before she entered the house. T.S.'s mother corroborated that her daughter arrived home at approximately midnight that evening.

Both McKnight and Pascale saw defendant on Sunday, February 15. Pascale observed that defendant had cuts on one of his hands and that his knuckles were swollen, and McKnight testified that defendant's right arm appeared to be injured. On Monday February 16, Pascale went to the Somerville police to report her suspicion that defendant was involved in the publicized murder of the girl from the roller rink.

At approximately 9:30 p.m. that evening, defendant was arrested on the basis of two outstanding municipal warrants. [FN 2] He was transported to police headquarters in Somerville for questioning about the Suhan murder. In reviewing the record concerning defendant's interrogation, we focus here on the evidence presented pre-trial at defendant's Miranda hearing. There are no video or audio tapes of defendant's custodial interrogations. The entire record consists of the reports of the investigating officers and their testimony at the Miranda hearing. [FN 3]

[FN 2] Defendant was arrested on an outstanding municipal warrant issued by the Red Bank Borough Municipal Court on January 7, 1993, and another warrant issued by the Sayreville Municipal Court on October 8, 1997.

[FN 3] Apparently, once each officer prepared his report he destroyed his notes from the interrogation sessions, a practice that is apparently common, but one that we disapprove of.

The first interrogation was conducted by Detective William Moscariotola of the Old Bridge Township Police Department and by Investigator John Maslak of the Middlesex County Prosecutor's

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Office. The interrogation began at approximately 9:50 p.m. on February 16, after defendant was advised of his Miranda rights and acknowledged that he understood them. When the officers began questioning defendant concerning his whereabouts during the past weekend, the officers did not tell him that he was being questioned about the murder victim found in Old Bridge. In response to questioning, defendant told the officers that he had not been to the South Amboy roller rink since the Columbus Day weekend of the previous fall. He was then asked whether he had been to the Old Bridge bowling alley during the past weekend. He informed the officers that he had stopped there with McKnight in order for her to use a telephone. He was unclear in respect of who was driving. He told the two interrogating officers that while McKnight was using the phone he had gone into the wooded area behind the building to relieve himself. There he saw a "pile" that he said had a foul smell and contained "something red and that this red thing had a right angle." After approximately ninety minutes of questioning, defendant asked whether the interview had anything to do with the girl missing from the roller rink. The officers told him that it did, and they then confronted him with the fact that McKnight had been out of town for the weekend.

The interrogation continued and defendant became increasingly emotional, nervous, and halting in his responses. At one point, defendant began to cry and told Moscariotola that, "she freaked me out. I don't know what happened." A break was taken. When the interview resumed both officers were present in the room. Defendant, appearing to have collected himself, recanted his earlier statement, instead claiming that he had said, "it freaked me out." A short while later defendant was shown a picture of Katrina's body taken at the crime scene. According to both officers, defendant's comment, when shown the photo, was: "I didn't sexually abuse that girl." The officers terminated the interview at approximately three o'clock in the morning.

During the course of that initial interview defendant was offered a beverage and bathroom break after about two hours of questioning. Also, at approximately 2:15 a.m., after defendant had signed a consent form permitting the search of his room, a beverage was provided to him again and Miranda warnings were readministered. Although a tape recorder was available during the interview, the officers did not tape any portion of the interrogation. After that initial interrogation, defendant was transported to the Middlesex County Adult Correctional Facility in North Brunswick and held on the municipal warrants.

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Defendant's second interrogation commenced at approximately 10:40 a.m. on Wednesday, February 18, at the detention facility in which he was being held. This interrogation was conducted by Maslak alone. Defendant was given fresh Miranda warnings and, then, during a two-hour interview, defendant recounted a version of his whereabouts that differed from that given in his first interview. As the questioning continued, he altered further the version he had just provided to Maslak. Essentially, defendant provided two conflicting but exculpatory statements placing himself far from the scene of the crime. At that point, defendant was asked and consented to have a polygraph test administered to him.

Investigator Angelini, a polygraph expert, was brought in. He conducted (what the motion court later considered to be) the third interrogation of defendant, which concluded at about 3:30 p.m. While alone with defendant, Angelini administered a pre-test polygraph and polygraph of defendant after defendant
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