STATE OF NEW JERSEY v. KURT LUTCHMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2745-08T42745-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KURT LUTCHMAN,

Defendant-Appellant.

______________________________________

 

Argued January 21, 2010 - Decided

Before Judges Stern, Graves and Newman.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 00-02-0231.

David A. Ruhnke argued the cause for appellant (Ruhnke & Barrett, attorneys for appellant; Mr. Ruhnke, on the brief).

Catherine A. Foddai, Senior Assistant

Prosecutor, argued the cause for respondent

(John L. Molinelli, Bergen County

Prosecutor, attorney for respondent; Ms. Foddai, of counsel and on the brief).

PER CURIAM

Defendant Kurt Lutchman appeals from an order denying his petition for post-conviction relief (PCR). We now reverse and remand for a new trial on Count I of Indictment No. 00-02-0231.

By way of background, the jury found defendant guilty of

murder, N.J.S.A. 2C:11-3a(1)(2); simple assault as a lesser offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The trial judge sentenced defendant to thirty-years imprisonment without the possibility of parole for the murder conviction and merged the third degree possession of a weapon for an unlawful purpose conviction into the murder charge. The court sentenced defendant to an eighteen-month concurrent sentence for the fourth-degree unlawful possession of a weapon conviction.

We affirmed defendant's conviction on direct appeal. State v. Lutchman, No. A-0590-02 (App. Div. July 5, 2005). The Supreme Court denied defendant's certification petition. State v. Lutchman, 185 N.J. 295 (2005).

The relevant facts comprising the criminal events were summarized by this court in the direct appeal as follows:

On May 22, 1999, a family party was held at the Bergenfield home of Evelyn Lutchman and her children; daughters Elizabeth, Lisa and Judy, and sons, Terry, Keith and Kurt (Kurt or Lutchman). Also in attendance was Evelyn's sister, Yvonne Khan, her nephews Anthony and Richard (a/k/a Ricardo, Ricky), Anthony's wife Jennifer and child Nissa, all visiting from Toronto, Canada. Kurt's girlfriend and first cousin, Carol Phekoo, and a friend, Dennis Giordano, were also at the party. After dinner, the cousins went down to Kurt's basement apartment where the group drank and danced. At some point during the evening, Anthony danced with his cousin Lisa, and made certain personal comments. In his statement to police, Anthony admitted also dancing with Carol in a manner known as "grinding," but testified that he had only danced with Lisa.

Anthony testified that at some point Kurt and Carol left the room together. According to Anthony, when Kurt returned he made a roaring sound and was holding what looked like a piece of stick. Anthony testified that Kurt walked toward Carol and proceeded to hit her, which caused her to fall to the ground. According to Anthony, Kurt then broke a bottle with the numchucks he was holding and approached his brother and Dennis, punching them both. Lisa then said "Kurt, I'm not going to take this F'ing [shit] no more," and she, along with Kurt's brother, Dennis, and Anthony left the basement, leaving only Kurt and Carol downstairs.

Richard testified that when Lisa came upstairs she said she was going to call the police. He heard a noise coming from the basement and went outside where he found Dennis near the basement door. Richard then entered the basement and heard screams coming from the bedroom. Richard testified that he saw Kurt hitting Carol with "a stick or something" and attempted to stop him, but

Kurt hit him in the head and he fell backwards. After retrieving his glasses, which had fallen off during the scuffle, Richard ran out of the basement as he saw Kurt return to hitting Carol. Richard then told Lisa to call the police. On cross-examination, defense counsel probed inconsistencies in the testimony of both Anthony and Richard.

Yvonne Khan testified that she was sleeping when Lisa woke her stating "Kurt is beating up Carol downstairs." Yvonne went outside, heard Carol screaming, unsuccessfully attempted to open the locked basement door, and then returned upstairs.

The police were called at approximately 2:30 a.m. on May 23 by Lisa. An officer responded to the call and attempted to gain entry to the basement, but the door was locked. When no one responded to his knocks, the officer forced entry into the basement, where he found Kurt sitting and Carol lying on the bed. Carol was unresponsive and when the officer moved her, he discovered a pool of blood under her face. She was pronounced dead on May 24, at approximately 9:40 a.m. An autopsy the next day concluded that she died of blunt trauma to her head.

Police officers and detectives testified that Kurt gave several statements concerning the party and Carol's ultimate death, changing his statement when confronted with new evidence. A Breathalyzer test was not taken although a police lieutenant testified that Kurt smelled like alcohol. According to the officers, Kurt admitted hitting Carol eight to ten times. He admitted hitting her a few more times after she became unresponsive.

A crime scene investigation revealed beer bottles, a metal pipe, and a pair of wooden numchucks, with what appeared to be a blood stain, in a dresser drawer. An examination of the blood found on the numchucks showed that it was not Carol's blood, but Kurt was not excluded as its source.

Kurt did not testify, or present any witnesses.

In challenging his conviction on PCR, defendant contends that his trial attorney failed to inquire as to the significance of an autopsy finding that the victim had an arteriovenous malformation (AVM) and to consult with a forensic pathologist. Had counsel done so, he would have discovered that there was medical support for the position that Carol's death was not a homicide caused by blunt force trauma, as testified to by the then Bergen County Medical Examiner, but rather the result of a ruptured AVM which led to the subarachoid hemorrhage causing death. Head trauma, it is asserted, played little or no role in the death. Had evidence along the lines described been presented, defendant argues that there is a reasonable probability that the jury would not have found defendant guilty of murder.

Indeed, the issue of causation was one of the issues raised by the defense at trial on the basis that the blows inflicted on Carol did not match up with the hemorrhage that she suffered. The testimony of a forensic pathologist would have scientifically strengthened the defense of not only causation, but raised reasonable doubt as to whether defendant harbored the intent or purpose to kill Carol or whether it was likely defendant's conduct was reasonably certain to result in his girlfriend's death.

The testimony of the forensic pathologist was developed at the PCR evidentiary hearing. Dr. Daniel J. Spitz, a board-certified forensic pathologist, testified as to the victim's cause of death. Dr. Spitz concluded that it could not be maintained to a reasonable degree of medical certainty "that the injuries suffered by [the victim] were the cause of the subarachnoid hemorrhage which ultimately led to her death." Dr. Spitz further opined that, "it is most likely that the subarachnoid hemorrhage was secondary to a ruptured vascular malformation with the head trauma playing little or no role in the death."

Dr. Sunandan Singh, the now-retired Bergen County Medical Examiner, testified at the PCR hearing, revising his trial testimony, that the victim had died, not as a result of blunt-force head trauma, but as the result of a ruptured AVM. Furthermore, Dr. Singh could no longer, to a reasonable degree of medical certainty, rule out natural causes as leading to the brain swelling that caused the victim's death. The following exchange was not equivocal:

Q: Can you rule out to a reasonable degree of medical certainty that this AVM ruptured as a result of natural causes and not the result of trauma? Can you rule that out?

A: To a reasonable degree of medical certainty I cannot.

In addition to stating that he would have provided the same or similar opinion if he had been called to testify at defendant's trial, Dr. Spitz testified that there was no evidence of a brain contusion. In contrast, Dr. Singh testified at the PCR hearing that the subarachnoid hemorrhage was a contusion.

Dr. Spitz testified at the PCR hearing that hospital records indicate that at the time of her admission to the hospital, the victim had a .2 blood alcohol level. The injuries the victim sustained to her head and face were "soft tissue" injuries because the skull was not damaged and the skin was not lacerated. Dr. Spitz said that "there definitely is a disconnect between the amount of injury that this woman sustained and this subarachnoid hemorrhage, which is what resulted in her death . . . . The subarachnoid hemorrhage appears to have originated from [the AVM]." Dr. Spitz testified that he believed that the presence of the AVM in the autopsy report was crucial because with it, "it made sense as to where this subarachnoid hemorrhage came from."

Dr. Spitz also commented that an AVM is a "congenital abnormality" that is "subject to rupture really at any time." However, he acknowledged that factors that "would raise blood pressure" could increase the odds of a rupture occurring. Dr. Spitz testified that both an elevated blood alcohol level and the stress of a fight could raise blood pressure.

Dr. Spitz testified that he did not believe the physical movement associated with defendant's beating of his girlfriend could have burst the AVM directly, as opposed to raising her blood pressure, because her particular AVM was located in the lateral ventricle, which "is deep within the brain." He explained that in his opinion,

AVM's, especially ones that are deep in the brain, . . . don't rupture because of trauma. They rupture generally because of one of two things; either the vessels become so inherently unstable that they rupture because of the pressure gradients that cause the unstable blood vessels to rupture.

While Dr. Singh agreed the bleeding originated in the AVM, he asserted that the bleeding was caused by trauma and that there was not a spontaneous rupture. Dr. Singh also pointed to visible signs of trauma on the victim, particularly on the head, and included puffiness of the upper eyelids, a small cut on the bridge of the nose, and hemorrhages around the ears. These indicia of hemorrhages were severe enough to have permeated into the covering of the bone.

The AVM was found in the victim's lateral ventricle. As explained by Dr. Singh, the largest part of the brain is the cerebellum. Deep within it is a cavity filled with water-like fluid. It was within this cavity that the AVM was suspended and subjected to violent back and forth, side to side movements in response to blows received from defendant's attack.

Dr. Singh stated that the direct hits to the victim's head and the head moving in a jerky, violent fashion, created turbulence within the cerebral spinal fluid. The trauma led directly to the rupture of the AVM. According to Dr. Singh, the cause of death remained the same, namely: subarachnoid hemorrhage as a result of trauma to the head.

Defendant's trial counsel testified at the PCR hearing that he did not consult with a forensic pathologist, medical examiner, or other expert witness regarding the autopsy findings. He explored the issue of cause of death with Dr. Singh on cross-examination because "the nature of the injuries were nowhere near as serious" as described by the witnesses. He recalled summing up on the causation issue on the notion that "the injuries were relatively minor as compared to the severity of the brain damage and the ultimate cause of death, the subarachnoid hemorrhage." He was hoping that "a jury might be able to find or say that the State hasn't proven beyond a reasonable doubt the issue of causation." While he tried to create reasonable doubt on the issue of causation, defense counsel acknowledged that he lacked any expert or other evidence with which to support the argument.

Defense counsel testified that he had reviewed Dr. Singh's autopsy report and its reference to brain injuries. The following colloquy then took place:

Q: I'm going to direct your attention to page 9, the final page, of the autopsy report. And there's a reference to the category brain, do you see that?

A: Yes.

Q: Do you see the reference to arteriovenous malformation of lateral ventricle?

A: Yes.

Q: Do you know what that is?

A: No.

Q: Do you recall ever exploring [with] any medical experts as to what that is and how it might be significant to the case?

A: No.

While defense counsel recognized that there was a causation issue in the case, he did not explore that issue by consulting with appropriate medical experts. Defense counsel also admitted his ignorance of the significance and meaning of the existence of the AVM.

Defendant also raises another ground for ineffective assistance of counsel relating to a domestic violence demonstration outside the courthouse on the day of trial summations.

The demonstration in the park directly across the street from the courthouse called itself "[t]he Bergen County Clothesline Project." The demonstrators hung banners with descriptive attacks on both incest and domestic violence.

A member of the jury was observed by defense counsel walking around the exhibition as it was being set up and speaking with a woman connected with the exhibit. Trial counsel brought the incident to the trial judge's attention, pointing out the following:

It is not simply a demonstration where there are placards and people congregating to either pray or to give speeches or to speak . . . of their shared experiences . . . . You know, this is just just bad you know, bad luck, but but the presence of those who in a very graphic way are demonstrating by their vast presence and there also is Judge, the possibility in there of people going to talk.

Defendant's trial counsel suggested that a remedy would be the delay of summations, "a day or two," or an admonition from the judge, though he expressed fear that such an admonition might highlight the demonstration to the jury. The trial judge asked defendant's trial counsel whether he wanted a general cautionary instruction or a specific one that mentioned the demonstration. Defense counsel responded "[u]nfortunately, I'm damned if I do and I'm damned if I don't." The trial judge indicated that he would make the decision and instructed the jury with the following admonition before summations:

One thing I should tell you, and you function just about as good as any jury I've dealt with since I've been here, fair impartiality is what we're here for, that's what your function is. You can't be swayed by anything that goes on, either inside the courtroom, outside the courtroom, in the newspapers, on TV, anyplace else.

As I told you, anybody comes up to you and tries to give you some indications as to the fact that they want knowledge about what's going on in this trial, bring it to my attention through my court officer, I deal with these people.

If you see anything outside the courthouse, ignore it. I don't want you to be swayed by anything, either inside this building, outside this building, in the newspapers, cable, radio, or anything that would prevent you from doing your job, and your job, again, is, and I'm sure I don't have to remind you because you know it, to be fair and impartial and render a fair and impartial verdict. Do not be swayed by any what I would be what the paperwork calls outside interferences, but I call anything that would dissuade you from being fair and impartial. It wouldn't be fair to Mr. Ziegelheim on behalf of the State, it wouldn't be fair to Mr. Lutchman, Mr. Neary, as defendant.

So bearing all that in mind, remember that as you go through this case. You know, and we live in a circumstance where [the] constitution gives people the right to voice their opinions, and that's absolutely correct and that's what the flag behind me means; otherwise, put the flag in the closet. We don't have the flag in the closet, it's sitting right behind me.

So the fact that people have the right to voice their opinions doesn't mean you should be in any way, shape, or form, and I'm directing you not to be, swayed by it. You're independent of that. Okay? I want to say that you're better than that, in the sense that you don't want to be swayed by outside interference or opinions.

So bearing all that in mind, and I'm sure I probably didn't have to give you that little speech again because I've given it to you before, but I thought it might be a good idea, just so that you go into the tail end of this case, again, realizing what you realized in the beginning, you're here to be fair and impartial, do your job and do it well, and function as a fair and impartial jury without any interference from anyone else, any place, person, inside this building, outside this building, any newspaper article, anything else.

In denying the petition, the PCR judge who had presided over the jury trial was "not swayed" by the argument that trial counsel's failure to engage a medical expert to review the autopsy findings and thereafter assert that defendant's girlfriend's death was caused by natural causes, the rupture of the AVM at the time that defendant was beating her. The PCR judge concluded that defendant failed to meet the first prong of the Strickland test, in that a reasonably competent attorney confronted with the facts of the case, including statements by both defendant and witnesses about defendant brutally beating his girlfriend right before she died, would have presented evidence that she died of an AVM which ruptured as she was being beaten by defendant. According to the judge, it would have risked alienating the jury and would have been inconsistent with the defenses presented by trial counsel, which included intoxication and third-party guilt. Additionally, the PCR judge determined that defendant could not meet the prejudice prong, because, given the overwhelming evidence of defendant's actions against his girlfriend, the jury would not have found that the AVM conveniently ruptured just as defendant was beating Carol. Neither prong of the Strickland test was satisfied in the PCR judge's view.

On appeal, defendant raises the following issues for our consideration:

POINT ONE

THE TRIAL ATTORNEY'S FAILURE TO CONSULT WITH A FORENSIC PATHOLOGIST, OR OTHERWISE APPRECIATE THE SIGNIFICANCE OF THE FINDING AT AUTOPSY THAT THE VICTIM HAD AN ARTERIOVENOUS MALFORMATION ("AVM") CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL THAT UNDERMINES CONFIDENCE IN THE VERDICT AND, THEREFORE APPELLANT IS ENTITLED TO A NEW TRIAL.

POINT TWO

DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO TAKE ANY ACTION WHEN HE OBSERVED MEMBERS OF THE JURY CONVERSING WITH THE ORGANIZERS OF A DOMESTIC VIOLENCE INSTALLATION IMMEDIATELY OUTSIDE THE COURTHOUSE ON THE DAY OF CLOSING ARGUMENTS.

"Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Preciose, 129 N.J. 451, 460 (1992). There is no question that an accused person is entitled under the Sixth Amendment "to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692. "[T]he right to counsel is the right to effective assistance of counsel." Kimmelman v. Morrison, 477 U.S 365, 377, 106 S. Ct. 2574, 2584, 91 L. Ed. 2d 305, 321 (1986). The standard for evaluating an ineffective-assistance-of-counsel claim articulated in Strickland, supra, applies in defining the New Jersey constitutional guarantee of effective assistance of counsel under N.J. Const. art. I, 10. State v. Echols, 199 N.J. 344, 357-58 (2009); State v. Fritz, 105 N.J. 42, 58 (1987).

To be successful on a PCR petition, both prongs of the test established in Strickland must be met. Echols, supra, 199 N.J. at 358. The first prong of the test is that counsel's "acts or omissions were outside the wide range of professionally competent assistance" considered in the context of the whole case. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Because criminal defense is more an art than a science there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Under this prong, we readily dispose of defendant's contention under Point Two that his trial counsel was ineffective regarding the domestic violence demonstration by not requesting the jurors be voir dired concerning the demonstration. Trial counsel was faced with a conundrum in which there was no tested answer. If he had requested a specific admonition or voir dire regarding the demonstration, he risked highlighting and perhaps prejudicially emphasizing in the minds of the jury the demonstration. Trial counsel's hesitation to make a decision left the issue to the judge. This was as reasonable a course of action as any he might have taken.

Moreover, the trial judge cautioned the jury in very strong terms not to be influenced by information about the case derived from outside the courtroom. We are convinced that trial counsel's decision not to probe the jurors through voir dire was within the range of professionally competent decision making regarding how best to represent a criminal defendant. State v. Allegro, 193 N.J. 352, 366 (2008).

By way of contrast in reference to Point One, defendant has shouldered his burden on prong one related to his trial counsel's failure to consult a medical expert regarding the AVM issue and to present this aspect of the causation issue to the jury. Indeed, at argument, the State agreed that defense counsel was not effective in his performance on this prong of the Strickland test.

The PCR judge decided that defendant did not meet his burden on this prong because "sometimes it's difficult to give juries alternate theories and sometimes they don't buy either of them." While that generally might be true, here trial counsel, during both cross-examination and his summation, argued that there was reasonable doubt regarding whether defendant's blows caused the hemorrhaging in his girlfriend's brain because none of her bones were broken. Having already decided to present alternative and conflicting theories to create a reasonable doubt as to defendant's guilt and expressly having already pursued the causation argument, it was not within the wide range of professionally competent assistance to ignore the AVM finding in the autopsy report and what it could have led to if further explored by consulting a pathologist. Here, it was not merely ignored, defense counsel did not even understand what AVM meant and did not bother to find out. The defense of causation could have been supported by scientific testimony which would have strengthened the defense immeasurably.

The second prong of the Strickland test is whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "That is, the challenged error must be so serious as to undermine the court's confidence in defendant's conviction." Echols, supra, 199 N.J. at 359 (citing Ibid.).

The State contends that it is improbable that a jury would decide based on the expert testimony of Dr. Spitz that defendant's actions had no causational role at all in the victim's death because to do so

would entail the jury discounting Dr. Singh's testimony, and finding that, just at the moment when defendant began his murderous attack on victim, beating her savagely with nun-chucks or another instrument, as testified to by the eyewitnesses to the attack and admitted by defendant himself, the AVM in the victim's brain serendipitously burst, causing her death.

The State's argument is flawed as applied to defendant's murder conviction. In order to satisfy the second prong, it is necessary to show by a preponderance of the evidence that "the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Showing a possibility of complete exoneration from all charges is not the standard. Defendant only has to raise sufficient doubt as to undermine confidence in the outcome, including the degree of crime of which defendant was convicted.

In order to convict for murder, N.J.S.A. 2C:11-3a(1)(2), it must be shown that the defendant "knew that the injury [he inflicted on Carol] created a substantial risk of death and that it was highly probable that death would result." State v. Jenkins, 178 N.J. 348, 362 (2004) (holding it was plain error not to instruct on lesser-included crime of manslaughter when victim died of injuries suffered in a fall after defendant hit him in the head with a brick). If a jury credits the testimony of Dr. Spitz, it could find that the complicated chain reaction which led to Carol's death could not have been something that defendant either knew about, or be something which has a high probability of occurring. That is not to say that defendant could be acquitted of all charges. Certainly, defendant could be convicted of a lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a), or manslaughter, N.J.S.A. 2C:11-4(b), because according to Dr. Spitz, defendant's reckless actions probably, either alone or in conjunction with alcohol ingestion, caused defendant's girlfriend's blood pressure to rise which, in turn, caused the AVM to rupture, leading to her brain hemorrhage.

Defendant's trial counsel was ineffective because there would have been a reasonable probability of a different result if defendant had presented expert testimony that defendant's blows to his victim could not have directly caused the brain hemorrhages which killed her and that instead the hemorrhages were caused by a burst AVM. If a jury credited that expert testimony, it is reasonably probable that there could have been a different resolution of the murder charge, as the jury might have had reasonable doubt about whether defendant "knew that the injury [he inflicted on the victim] created a substantial risk of death and that it was highly probable that death would result." Jenkins, supra, 178 N.J. at 362.

Moreover, if the "casual relationship between conduct and result is an issue, the jury must be provided with the opportunity to evaluate, under proper instructions, the competing claims about the cause of death." State v. Eldridge, 388 N.J. Super. 485, 498 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). In the circumstances, it is for the jury to determine whether defendant was "practically certain that his conduct would cause [the] result," N.J.S.A. 2C:2-2b(2), and whether "it is unjust to find that the defendant's conduct is the cause of the actual result." State v. Martin, 119 N.J. 2, 13 (1990). Based on the proffered testimony, the jury could have found either a lesser degree of culpability or the same culpability to commit a lesser offense.

While we can only speculate as to how defense counsel might have altered his trial strategy had he engaged a forensic pathologist, it would not be surprising if the defense was less diffused - blaming others for the attack, intoxication, and causation - and more focused on the causation issue in an effort to create reasonable doubt in the jurors' minds. In any event, we are persuaded that defendant has satisfied the second prong of the Strickland test. We lack confidence in the jury's murder verdict.

Reversed and remanded for a retrial on Count I of Indictment No. 00-02-0231.

 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

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A-2745-08T4

April 6, 2010