Strouse v. Leonardo

• Decision Date: 18 March 1991
• Docket Number: D,No. 608,608
• Citation: 928 F.2d 548
• Parties: Lawrence P. STROUSE, Jr., Petitioner-Appellant, v. Arthur A. LEONARDO, as Superintendent of the Great Meadow Correctional Facility, Respondent-Appellee. ocket 89-2322.
• Court: U.S. Court of Appeals — Second Circuit

Page 548

928 F.2d 548

Lawrence P. STROUSE, Jr., Petitioner-Appellant, v. Arthur A. LEONARDO, as Superintendent of the Great Meadow Correctional Facility, Respondent-Appellee.

No. 608, Docket 89-2322.

United States Court of Appeals, Second Circuit.

Argued Nov. 16, 1990.

Decided March 18, 1991.

Roger Netzer (Lawrence O. Kamin, Jerome Balsam, Willkie Farr & Gallagher, Henriette D. Hoffman, The Legal Aid Soc., Federal Defender Services, Appeals Unit, New York City, of counsel), for petitioner-appellant.

Ernest Burstein, Asst. Dist. Atty. (John J. Santucci, Dist. Atty., Kew Gardens, N.Y., of counsel), for respondent-appellee.

Before FEINBERG, PIERCE, and MINER, Circuit Judges.

PIERCE, Senior Circuit Judge:

Lawrence P. Strouse, Jr. appeals from a judgment of the United States District Court for the Eastern District of New York (McLaughlin, J.) denying without a hearing his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988).

In 1980, following a jury trial in New York State Supreme Court, Queens County, Strouse was convicted of two counts of murder in the second degree, burglary in the first degree, and conspiracy to commit murder in the second and fourth degrees. On direct appeal, the Appellate Division modified the judgment of conviction by deleting a provision that the conspiracy sentences run consecutively to the sentences imposed on the remaining counts. As so modified, the convictions were unanimously affirmed. People v. Strouse, 96 A.D.2d 604, 464 N.Y.S.2d 1017 (2d Dep't 1983). Leave to appeal to the Court of Appeals was denied. People v. Strouse, 60 N.Y.2d 971, 471 N.Y.S.2d 1040, 459 N.E.2d 205 (1983).

Strouse next sought a writ of habeas corpus in federal court, alleging various constitutional errors at his trial. The district court dismissed the petition without prejudice for failure to exhaust state remedies. After unsuccessfully presenting his claims to the state court in a motion to vacate brought pursuant to section 440.10 of the New York Criminal Procedure Law, Strouse returned to federal court with his now-exhausted claims. The district court denied the petition without holding an evidentiary hearing. Strouse v. Leonardo, 715 F.Supp. 1170 (E.D.N.Y.1989). Subsequently, the district court granted a certificate of probable cause.

On this appeal, Strouse continues to press several grounds for relief. His principal contention is that he was denied his Sixth Amendment right to the effective assistance of counsel because his trial counsel labored under a conflict of interest. Because of this alleged conflict, Strouse argues, he is entitled to issuance of the writ or, at the least, a remand for an evidentiary hearing. Strouse also contends that the representation he received at trial was constitutionally inadequate, even if it was not infected by a conflict of interest on the part of his attorney. Finally, Strouse asserts that his right to a fair trial was denied because of prosecutorial misconduct.

Because we conclude that Strouse made a sufficient showing to entitle him to an evidentiary hearing on his conflict of interest claim, we vacate the denial of the petition and remand to the district court for a hearing on that issue. We affirm the district court in all other respects.

BACKGROUND

We first review the facts, as developed at the state trial, underlying Strouse's convictions. Next, we review the facts relevant to Strouse's conflict of interest claim.

On or about January 23, 1979, Nancy Strouse was strangled to death in her home in Bayside, Queens. Petitioner Lawrence P. Strouse, Jr., the victim's son, was accused of arranging the murder. At trial, the prosecution attempted to show that Strouse, who was thirty-two years old at the time of the murder and lived in the basement of his mother's house, hired a man named Barry Weisbrot to kill his mother so that Strouse could inherit her The government's case against Strouse included two witnesses, Barbara Travers and Joseph Zicari, who testified that they were at the Strouse home on January 23, 1979 and overheard Strouse and Weisbrot planning Mrs. Strouse's murder. Travers and Zicari gave closely corroborative testimony concerning the series of events that occurred on the afternoon of January 23, 1979.

estate. Weisbrot was tried and convicted of murder, burglary, and conspiracy charges in a separate trial.

At about 3:00 p.m. Strouse and Travers drove to pick up Weisbrot and brought him back to the Strouse home where Zicari was waiting. Mrs. Strouse was apparently at work that day. Strouse took Weisbrot upstairs to his mother's apartment while Travers and Zicari remained downstairs. After waiting approximately 45 minutes, Travers went upstairs and found the two men in Mrs. Strouse's bedroom looking at her fur coats, jewelry and bank books. Strouse and Weisbrot came back downstairs after Travers went up a second time to see what was delaying them. When they came downstairs, Strouse and Weisbrot were carrying instantly-developed photographs they had just taken, which Strouse said would be "good for insurance purposes in case the house was ever robbed."

In the presence of Travers and Zicari, Strouse and Weisbrot then began discussing how to kill Mrs. Strouse. Strouse, who often fought with his mother and frequently voiced his desire to have her killed, stated that his mother would be better off if she were put out of her misery but emphasized that "we got to make it look like a robbery." Strouse suggested shooting her, but decided this would be too bloody and messy, and also likely to be heard by the tenants upstairs. Finally, Strouse and Weisbrot agreed that strangulation would be the best method to employ. Weisbrot was to come to the house that evening while Mrs. Strouse was out bowling, burglarize the house and kill Mrs. Strouse when she returned. Weisbrot's payment, Strouse told him, would be all that he stole from the house plus $1,200.

Another prosecution witness, Diane Filipas, gave testimony concerning Strouse's actions during the early part of that evening. Filipas testified that she arrived at the Strouse home at approximately 6:00 p.m. and found Strouse getting ready to leave "because he thought something was going to happen." Strouse left the house later that evening after saying goodnight to his mother, remarking to Filipas on his way out that that might be the last time he said goodnight to his mother. Strouse took a taxicab to a house where Zicari was babysitting. Shortly after arriving there Strouse made a phone call. Chesia Stadnick, who was in the house, testified that she overheard Strouse say on the telephone, "[I'm] here" and "the back door is open."

Nancy Strouse was strangled to death that night in the bedroom of her home. Strouse spent the evening at Zicari's apartment. The next day, Strouse returned home in the early afternoon, accompanied by Zicari and Zicari's cousin, William Cassara. Zicari and Cassara entered the house first and, finding it in disarray, went upstairs to investigate. Cassara found Mrs. Strouse's body on her bed, a cord tied tightly around her neck. Her bedroom and the entire house were ransacked and appeared to have been burglarized. Mrs. Strouse's car was missing.

Soon after Mrs. Strouse's murder, suspicion began to focus on her son. The police went to the house on the day of the funeral to question Strouse about his mother's death. Strouse refused to speak with the officers and ordered them out of the house. As they were leaving, the police noticed that Mrs. Strouse's car, which had been reported stolen, was in the garage. Strouse had not informed the police that the car had been recovered.

At trial, Travers and another witness, Kathy Shannon, testified that they returned with Strouse to his house during a break in Mrs. Strouse's wake. While they were there, Strouse became upset that Weisbrot had taken the car and demanded that On January 28, 1979, Strouse went to the police station with his attorney. In his interview with the police, Strouse admitted discussing burglary and murder with Weisbrot but claimed that he was high on drugs and "was only kidding" and that he told Weisbrot to "forget the whole thing." Strouse also claimed that he actually tried to prevent the crime from occurring. After testifying similarly before the grand jury, Strouse was indicted and arrested for his involvement in the murder of his mother.

                Travers go to Weisbrot's house and find out from him where the car was.  According to Travers, Weisbrot told her, "Tell him it's on 171st Street by the railroad tracks.  But if he touches the car, he's crazy."    Weisbrot also told Travers that he wanted to see Strouse that evening.  Strouse picked up the car himself and later that day met Weisbrot outside a bar, where they spoke in the street for several minutes
                

At his trial, Strouse was represented by James J. Cally, the attorney who was with Strouse when he was questioned by the police. Cally had also represented Mrs. Strouse during her lifetime. In addition to handling small real estate and divorce matters for Mrs. Strouse, Cally had prepared and witnessed her will, which designated Cally as alternate executor in the event that Strouse, who was named as primary executor and sole beneficiary, predeceased his mother. The entire will, including the part naming Cally as alternate executor, was read into the record at trial to establish Strouse's motive.

More than eight months after Strouse's conviction, Cally petitioned the Surrogate's Court to issue letters testamentary to him, presenting himself as "the alternate executor under the said will dated April 26, 1976, and as such [having] the capacity to file the petition, by reason of the disqualification of the named executor, Lawerence [sic] C. [sic] Strouse."

The Surrogate denied Cally's petition, finding "the papers filed with the court are not only incomplete in form and substance but more importantly, seek the granting of letters to a...