On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-02-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and Newman.
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 ...