People v. Fisher , 73 A.D.2d 886 ( 1980 )

Judgment, Supreme Court, New York County, rendered November 21, 1978, convicting defendant of murder in the second degree and sentencing him thereupon to 15 years to life, affirmed. The underlying facts, which are not in dispute, are set forth in the dissent. Contrary to our dissenting colleague, however, we find from the totality of the evidence that defendant’s guilt of this calculated and brutal murder of a hapless victim was established beyond a reasonable doubt and that no error in the admission of evidence warrants a new trial. The People’s case stands on much more than Ms. Edwards’ positive, albeit belated, identification of defendant as the killer. At its foundation is the relationship which had existed between defendant and Ms. Edwards. For almost four years they had been lovers, living, traveling and working together. Just four months before the killing, Ms. Edwards began to socialize with Fred Fuller. It was a relationship which was to blossom into romance and eventually an engagement to marry. During these months defendant, tormented by Edwards’ growing attachment to Fuller, spoke often of suicide. He also threatened to take care of Fuller and to arrange for Edwards to know, as defendant knew, what it was like to be left alone. Thus, a motive on defendant’s part was established. That Fred Fuller was marked for death on the night in question, and was not the chance victim of a random act of violence, possibly stemming from a bungled burglary or robbery, was clearly inferrable from the frenzy of the assault perpetrated upon him. He died of a gunshot wound in the brain, and of fractures and brain contusions extending from the top to the base of the skull. According to the medical examiner, the muzzle of the gun had been placed directly against the scalp. The head wounds were severe and massive. The right side of the deceased’s head was caved in, "crushed like a beer can”. The skull fractures and brain contusions were consistent with the effects of six or seven blows from a blunt, round, heavy pipe. In stark contrast to Fuller’s fate, Ms. Edwards was not harmed in any way. Indeed, the killer showed solicitude for her welfare throughout the incident. Moreover, it is clear that larceny was not the motive. A television, stereo system and Nikon cameras, plainly visible, were left untouched in the room where Fuller was slain. Fuller’s money and credit cards, although strewn over his prostrate body, were not taken. Furthermore, the extreme lengths to which the killer went to avoid recognition point compellingly to defendant. Edwards had known defendant intimately for the past four years. Only someone who feared that Edwards might recognize him would feel the need to obliterate all his features, including the color of his eyes and his skin tone, by using a loose fitting opaque hood extending to his chest and a long-sleeved shirt and gloves, and to disguise his voice with a low, breathy whisper. Nor did any signs of forced entry into the Fuller apartment exist, thus indicating that the killer had used a key to gain access. Only days earlier defendant had an opportunity to take Edwards’ keys to the apartment. Finally, defendant revealed his identity in another manner. The only items missing from the apartment were taken from Ms. Edwards’ pocketbook, namely, a bottle of perfume, $17, and a key chain bearing his initial "G” and given to her by defendant. Aside from the strength of the People’s evidence, the case was fortified by the implausibility of the alibi defense, as testified to by defendant and his witnesses. While it is true that Ms. Edwards did not immediately identify defendant as the killer to the police, she did testify that from the moment she saw the hooded intruder she recognized him as defendant. She also testified that she recognized defendant in the apartment by his voice. This identification was based upon a certainty that came from four years of day-to-day living together. Defendant exploited Edwards’ initial failure to tell the police who the killer was by attempting to convince the jury that her identification of him was the product of police suggestion and the influence of the hypnotist and the psychiatrist. To refute this effort Dr. Carlton, the psychiatrist, was called. Ms. Edwards had testified that she had "repressed” from her mind the painful truth that defendant, the boyfriend with whom she had lived for four years, was the killer. The purpose of Dr. Carlton’s testimony was to establish that Ms. Edwards’ inability to make an immediate identification of defendant as the killer was consistent with the psychological phenomenon of "repression” or "blockage.” Contrary to the dissent’s premise, this was not a matter collateral to the issues involved in the case but rather, a material fact, emphasized by defendant throughout the trial, from his opening to the summation. An issue does not become collateral merely because it bears on credibility. For instance, a witness’ ability to recount any material fact bears on the witness’ credibility and yet, the fact may be proved or disproved independently. Dr. Carlton’s testimony was helpful in explaining an arcane subject, not otherwise readily comprehensible, to a jury of lay persons. He testified that he examined Ms. Edwards and that she suffered "repression” following the crime. He further testified that one can suppress not only something actually experienced, but also something believed to have been experienced. Dr. Carlton never testified, or even suggested, that he believed Ms. Edwards’ testimony that she had actually recognized defendant as the killer. Thus, this is not the case of an expert witness testifying that, based on his own experience, he found the testimony of a crime victim as to the facts of the crime to be believable (cf. People v Ciaccio, 47 NY2d 431). In our view, Dr. Carlton did not usurp the jury’s function. Concur— Fein, J. P., Sandler, Sullivan and Lupiano, JJ.