Kennaugh v. Miller
| Citation | 150 F.Supp.2d 421 |
| Decision Date | 20 April 2001 |
| Docket Number | No. 99-CV-4695 ERK.,99-CV-4695 ERK. |
| Parties | August KENNAUGH, Petitioner, v. David MILLER, Superintendent, Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Anthony V. Lombardino, Richmond Hill, NY, for petitioner.
Richard A. Brown, Dist. Atty., Queens County, Kew Gardens, NY (John M. Castellano, Nicole Beder, Donna Aldea, Asst. Dist. Attys., of counsel), for respondent.
August Kennaugh seeks habeas corpus relief from his conviction for one count of second-degree murder and two counts of first-degree robbery. After a jury trial, petitioner was sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder conviction, and eight and one-third to twenty-five years on each of the robbery convictions. The Appellate Division affirmed the conviction, People v. Kennaugh, 92 A.D.2d 1090, 459 N.Y.S.2d 953 (2d Dep't 1983), and petitioner's application for leave to appeal to the New York Court of Appeals was denied. 59 N.Y.2d 677, 463 N.Y.S.2d 1036, 450 N.E.2d 259 (1983).
The underlying crimes were committed in the early morning of October 5, 1979, when petitioner and two other men forced themselves into a restaurant in order to commit a robbery. During the robbery, the owner of the restaurant was stabbed to death. Petitioner was arrested four months later. Petitioner seeks relief on two grounds. In his original petition, he claimed that the District Attorney failed to disclose that two witnesses had observed the perpetrators just prior to the crime and were unable to identify petitioner at a lineup. Petitioner later amended the petition to include the claim that an eyewitness, who failed to identify him at a lineup held seven months before trial, was permitted to do so in a suggestive in-court setting.
In the early morning of October 5, 1979, Guelfo Nello Terzi, the owner of Caesar's Restaurant ("Caesar's"), Gemma Terzi, his wife, and Elio Rusnjak, the bartender, were closing the restaurant for the night. As Rusnjak opened the door to leave, three young men (one allegedly being petitioner), two of whom were carrying guns, forced their way into the restaurant. Tr. 41-42; 108-09. Mrs. Terzi and Rusnjak were thrown on the floor, and two of the men watched and guarded them. Tr. 56; 109. Mrs. Terzi's pocketbook, jewelry, and gold, among other items, were taken from her. Tr. 56-58. The third man took Mr. Terzi to the cash register at the bar and then to the kitchen where approximately $500 was kept to start the next day. Tr. 58, 65; 109.
Mrs. Terzi and Rusnjak were also taken to the kitchen. Tr. 59; 111. Both of them were thrown to the floor and Mrs. Terzi was tied up with a napkin. Tr. 59-60; 111. Two of the men went with Mr. Terzi to the other side of the kitchen, where the refrigerator containing a box with money was located. Tr. 111. One of them forced Rusnjak to get up, told him not to remember anything when the police came, and made him take off his belt and pants. Tr. 112. Rusnjak was then forced to lay down again, hit twice with a gun, and tied up with his belt. Tr. 61; 112. One of the perpetrators suggested raping Mrs. Terzi, but she was not in fact raped. Tr. 60-61; 113. Mrs. Terzi recalled that one of the perpetrators said to her husband, "If you don't give us the money, we will kill you," and Mrs. Terzi responded, "Then kill me." Tr. 62. Mr. Terzi was then stabbed and killed, and another of the perpetrators screamed, "Why you do that, Why you do that." Tr. 63. As the men ran out, one of them, identified as petitioner, pointed a gun at Mrs. Terzi and told her that she should not remember his face or tell the police she has seen anything. Tr. 63. After the perpetrators left the restaurant, Mrs. Terzi untied herself and Rusnjak. The two of them discovered that Mr. Terzi had been stabbed with a kitchen knife. Tr. 64; 113-13. Rusnjak then called the police. Tr. 64; 114.
Petitioner was arrested on February 3, 1980, and he was tried in New York State Supreme Court, Queens County, in early 1981. The case against him consisted primarily of petitioner's fingerprint on the cash register at the scene of the crime and of eyewitness identifications.
Detective Gerald Donohue testified for the prosecution that on the night of the incident, he lifted a fingerprint that was located on the bottom of the drawer of the cash register. Tr. 144-49. He opined that, because of the area in which the drawer was located and the amount of times a cash register is used, the print could have been on the register for at most two days. Tr. 152-53. At this point in the trial, Rusnjak had testified that the cash register remained open at night after it was emptied. Tr. 107. He did not testify as to the number of times the cash register was used when the restaurant was open. Nevertheless, the former owner of Caesar's, Wilfredo Betancourt, later testified that large bills and checks were kept underneath the cash register tray. Tr. 282-84. After Betancourt testified, the prosecution moved to recall its fingerprint experts, to specifically address the significance of this use of the cash register tray, Tr. 289, but the trial judge denied the motion, believing that the evidence would be cumulative. Tr. 293. Indeed, while Detective Donohue conceded in his testimony that the drawer was not subject to air when the register is closed, he noted that the drawer was subject to friction caused by placing large bills under the drawer. Tr. 155-56. Donohue also stated that, "[i]f the drawer wasn't used [a fingerprint] could last an indefinite period of time as long as it wasn't disturbed." Tr. 158.
Officer John Dee testified as an expert in latent fingerprints that the fingerprint found on the cash tray belonged to petitioner. Dee testified that he compared a fingerprint taken of petitioner when he was arrested with a partial latent fingerprint found on the cash register in the restaurant. Tr. 178-79. He concluded that the left thumb was a match, Tr. 186, and that "[i]t's impossible for that latent print to be any other print than that print there of [the left thumb] finger." Tr. 189. In response to a question from defense counsel concerning how long a print could remain on a cash register that is primarily closed, Dee stated that it would depend on atmospheric conditions, use of the equipment, and various other factors, and that it could be any length of time. Tr. 195-96.
Petitioner did not dispute that his fingerprint was on the cash register. Instead, he attempted to explain the presence of his fingerprint by showing that he had touched the cash register at a time other than during the robbery. John Harms, an electrician who knew petitioner's parents and frequented Caesar's, and Thomas McManus, the owner of a bar frequented by petitioner's father, testified that they had seen petitioner and his father in Caesar's on numerous occasions. Tr. 258-59; 264-66. Both witnesses admitted on cross-examination that they had never seen petitioner touch the cash register. Tr. 261; 267. This missing piece was filled by the testimony of Mr. Betancourt, the former owner of Caesar's, who had sold the restaurant and moved to Florida about a year and one-half before the trial. Tr. 269-70. Betancourt identified petitioner as having been in the restaurant with his father many times. Tr. 270. Some three months before the robbery, when closing the restaurant, Mr. Betancourt removed the cash tray from the register in order to count the money and the tray fell on the floor. Petitioner, who was in the restaurant, picked up the tray and gave it to Betancourt. Tr. 271. Mrs. Terzi had testified that she and her husband had not replaced any of the equipment in the restaurant. Tr. 77.
Mr. Betancourt, however, was unable to remember several details on cross-examination: the month during which he had moved to Florida, Tr. 274, the specific date or week in July when the tray fell, Tr. 284, the one time, other than the night the tray fell, when petitioner and his father stayed until the restaurant closed, Tr. 275-76, or the identities of the other people in the restaurant when the tray fell. Tr. 280. Betancourt stated that the night in July 1979 was the only time he could remember the tray falling, Tr. 276, 286, and that it was one of the rare nights that the bartender, Rusnjak, left before the restaurant had closed. Tr. 279-80.
The prosecution introduced two pieces of identification evidence. First, Irving Silver, a resident of Queens, testified that he was in the restaurant the night of the robbery at about 10:00 or 10:30, that he left at about 12:30, and that he saw petitioner on the street near a pizza store, four stores away from the restaurant. Tr. 129-31. Silver could not remember whether petitioner was with anyone else. Tr. 131. Silver testified that in July 1980, he observed a lineup and identified petitioner as the person he had seen outside the pizza store. Tr. 131-33. Silver also identified petitioner at the trial. Tr. 130. This testimony placed petitioner in the neighborhood a little over an hour before the robbery was committed. Silver acknowledged on cross-examination that the pizza store was a place where young people congregated, Tr. 135, and stated that he did not recognize petitioner's counsel as one of the persons present at the July 1980 lineup. Tr. 133-34. Second, Mrs. Terzi identified petitioner as one of the perpetrators of the crime. Tr. 62-63. The circumstances of her identification are discussed more fully in the portion of this memorandum that addresses petitioner's challenge to the admissibility of her identification. Suffice it to say here that Mrs. Terzi's identification was of minimal probative value.
Petitioner was convicted of one count of second-degree murder and two counts of first-degree robbery, and sentenced to...
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