People v. Kampshoff

• Decision Date: 12 July 1976
• Citation: 385 N.Y.S.2d 672,53 A.D.2d 325
• Parties: PEOPLE of the State of New York, Respondent, v. Michael KAMPSHOFF, Appellant. PEOPLE of the State of New York, Respondent, v. Edward JORDAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 672

385 N.Y.S.2d 672

53 A.D.2d 325

PEOPLE of the State of New York, Respondent, v. Michael KAMPSHOFF, Appellant.

PEOPLE of the State of New York, Respondent, v. Edward JORDAN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 12, 1976.

Leonard Berkowitz, Buffalo, for appellant Kampshoff.

Nathaniel A. Barrell, Buffalo, for appellant Jordan.

Edward C. Cosgrove, Buffalo, for respondent (Judith Manzella, Buffalo, of counsel).

Before MARSH, P.J., and MOULE, SIMONS, GOLDMAN and WITMER, JJ.

MARSH, Presiding Justice:

Defendants appeal from judgments of conviction rendered following a jury verdict finding defendant Kampshoff guilty of Felony Murder, Second Degree Burglary and Second Degree Robbery and defendant Jordan guilty of Intentional Murder, Felony Murder, Second Degree Burglary and Second Degree Robbery. The first count of the indictment of defendant Kampshoff charging Intentional Murder was not submitted to the jury. Defendant Kampshoff moved for severance and a separate trial prior to trial which was denied.

On February 17, 1973 Mrs. Gladys Kampshoff, age 71, was found by a neighbor dead in the garage attached to the home occupied by her alone at 2797 Tonawanda Creek Road, Amherst, Erie County. Her body was partially frozen. A makeshi blindfold and mouth gag were found taped to her face and the body was in a prone position next to the left rear wheel of her automobile. A board was lying partially on her head and a large monkey wrench was lying over one shoulder. While looking for her the neighbor saw the telephone off the hook and found all doors allowing access to the house secured and locked except a garage car door. The television set was on. Telephone Company records showed that the receiver was taken off the hook sometime between 3:30 and 4:00 p.m. on February 16. The County Medical Examiner was called to Mrs. Kampshoff's residence February 17 and he confirmed the earlier finding of the location and appearance of the victim's body. The cloth binding around the deceased's head was held by an unusual tape used in surgery for binding the closures in operations. He stated that all four extremities of the victim were frozen. There was evidence of bleeding from the rear of the skull and black and blue marks and reddish marks appeared around her left eye and left temporal region. There was a linear wound across and underneath the angle of her jaw and contusions and abrasions to her forehead. There was a superficial laceration in the neck area and two stab wounds on the left side of the chest. The victim's breast bone was fractured and there were many broken ribs. The victim had a tear in the mesentery approximately four inches in length. The cause of death was given as due to multiple abdominal and chest trauma with hemorrhage, multiple trauma to the head and penetrating stab wounds of the left pleural cavity and lung.

The principal narrative of the events leading up to and surrounding the alleged crimes was given by Warren Strodel, an admitted accomplice of defendants who had been granted immunity. It was his testimony that on February 12 he met with the two defendants to discuss plans for the robbery. Defendant Kampshoff told him that he believed his aunt, Mrs. Kampshoff, had between $50,000 and $75,000 in her home. Kampshoff did not want his aunt to see his face. He wanted her subdued as gently as possible, overpowered, taken to another room and tied, so that Kampshoff could look for the money. In pursuance of the plan, on February 16 Strodel told Kampshoff to pick up defendant Jordan and make sure that he had tape and gloves. Kampshoff left and returned with Jordan, and Strodel asked Kampshoff if he had gotten the tape and Kampshoff said he had. Kampshoff and Jordan got into a beige two-door Cadillac with Strodel. Jordan had an attache case to use as a salesman's prop to assist in gaining access to Mrs. Kampshoff's home and Kampshoff had a gym bag. They also had a pellet gun and darts. Jordan had a bulky light sweater on and Kampshoff a brown coat. Both defendants had shoulder-length hair. They observed children playing hockey across the street from Mrs. Kampshoff's home, and passed the house once. It was then between 2:00 and 2:30 p.m. One of the defendants stated that the presence of the children would make no difference and they approached the house a second time and stopped. Jordan got out of the car, Kampshoff gave him some tape and he and Kampshoff drove ahead a distance. They saw Jordan ring the bell, wait a few moments and then walk around to where the garage doors were located. They then drove around and when they returned they did not see Jordan outside the house. Ten minutes from the time they dropped Jordan off they returned to the house and Strodel let Kampshoff off. Kampshoff took the gym bag with him and he saw him go around the corner of the house where the garage doors were located. He then drove around and passed the house every five minutes until 25 minutes had elapsed. At that time he pulled up in front of the house and, as a prearranged signal discussed several times with both defendants he fired a .22 caliber dart with blue feathers at a large window in the corner of the house. He then drove on, turned around and stopped just past the house. Both defendants, Kampshoff with a brown gym bag and Jordan with an attache case, then got back into the car. Jordan had a knife with him. Kampshoff got in first and said, 'I think she's dead. He did a number on her.' Strodel asked Jordan why he hit her and Jordan said that she wouldn't be quiet. He cut the victim to scare her. Kampshoff said that his aunt was lying on he floor of the garage and looked in pretty bad shape, and that if she was not dead already she probably would freeze to death. He left the phone off the hook because a busy signal would not be as suspicious as a failure to answer. The money they expected wasn't there and upon returning to Strodel's home they went through the contents of the gym bag and found that contained papers, music sheets, bills, cancelled checks, some government checks and $40 in cash. The money was divided and Strodel suggested that they burn the bag and its contents.

On cross-examination Strodel admitted having told different stories to the police a number of times, denying his own involvement and exculpating Kampshoff and Jordan. He admitted to disorderly conduct convictions, that he had stolen a car and that he had sought immunity to avoid punishment for his own participation in the crime. He stated that he was on drugs in 1973, that he had been hospitalized three days for an overdose of thorazine, that he had attended regularly an institution where people are treated for psychotic problems and was treated by a psychiatrist, that it was partially true that the medications and drugs he was taking put him in a land of fantasy and removed him from the reality of life and that as a result of problems with a girl friend he had kicked and punched walls. A defense request to place Strodel's medical records in evidence was denied by the court.

As a part of the their case defendants sought to introduced the testimony of Dr. Schutkeker, a psychiatrist. Without the presence of the jury he stated that he had heard Strodel's testimony and that the questions and answers gave him excellent insight into Strodel without the necessity of a direct examination. His diagnosis of Strodel was that he had a psychopathic personality, a severe character defect and was insincere and untruthful about the reasons he gave for treatments he had received. He further stated that Strodel had denied and concealed the reason why he saw a psychiatrist and in his opinion he lied on the stand. The defense motion to allow the psychiatrist to testify before the jury was denied.

There can be no question but that Strodel's testimony assumed paramount importance at the trial and defense counsel were entitled to exercise wide latitude in attacking it.

Initially, it is abundantly clear that whether or not a particular witness is telling the truth is a conclusion to be drawn solely by the jury, and an opinion which is exclusively within their province to render (People v. Williams, 6 N.Y.2d 18, 23, 187 N.Y.S.2d 750, 754, 159 N.E.2d 549, 552). Thus, under no circumstance could Dr. Schutkeker testify that it was his opinion that Warren Strodel lied on the stand. '(O)pinion evidence may not be received as to a matter upon which the jury can make an adequate judgment.' (People v. Graydon, 43 A.D.2d 842, 843, 351 N.Y.S.2d 172, 173). The defense however urge that the medical records and psychiatric testimony were essential to their effort to discredit the testimony of Strodel.

The jury is entitled to be made aware that there is 'something mentally wrong' with a witness and that a witness may not be 'normal'. (People v. Rensing, 14 N.Y.2d 210, 250 N.Y.S.2d 401, 199 N.E.2d 489). This is to allow the jury to assess and evaluate the testimony in light of these facts, and to avoid having them accept such testimony as the statement of a normal individual. (People v. Rensing, supra).

Defense counsel were permitted to cross-examine Strodel vigorously and at length concerning his use of drugs, his attendance at the Monsignor Carr Institute, his attendance at the Meyer Hospital outpatient psychiatric ward, his contacts with psychiatrists, his episode of violence and machete-throwing, his threatening suicide, and his doubting his own sanity on occasion. The fact that he was not a 'normal' individual was clearly put before the jury by the defense cross-examination.

It would appear abundantly clear that sufficient evidence was produced on cross-examination to enable the jury to evaluate Strodel's testimony in light of the fact that there was 'something mentally wrong' with the witness.

There is no claim however that Strodel's ability to perceive or recollect the events of February 16, 1973 was impaired by his past history...