Husband Gets Third Murder Trial After Errors by Defense Attorney
New York Law Journal
January 3, 2012
ALBANY – A man convicted twice of murdering his wife has won yet another trial after an appellate panel in Albany held that the defense counsel’s failure to react to juror misconduct and his decision to introduce highly prejudicial and inadmissible evidence constituted ineffective assistance of counsel.
The Appellate Division, Third Department, last week overturned for the second time Peter M. Wlasiuk’s conviction in Chenango County for second-degree murder after finding that defense attorney Randel A. Scharf of Delhi undermined his client.
Records show that Mr. Scharf declined to challenge a sworn, but not yet empaneled, juror who was dishonest during voir dire and, it turned out, knew the victim and was aware of the defendant’s history of domestic violence.
Additionally, the court said, Mr. Scharf introduced a police evidence log describing the victim’s diary, which contained multiple references to the defendant’s prior abusive conduct. The Third Department had reversed Mr. Wlasiuk’s first conviction in 2006 because evidence of prior acts of domestic violence was improperly admitted (NYLJ, Sept. 1, 2006).
The case dates back to April 3, 2002, when police responded to a report of an accident at Guilford Lake and found Mr. Wlasiuk at the top of an embankment and his wife, Patricia, at the bottom of the lake next to their submerged pick-up truck.
Mr. Wlasiuk initially told police that his wife had swerved to avoid a deer and driven into the lake.
But that story quickly unraveled as his version changed repeatedly and authorities accused him of killing his wife in their home and then staging the accident. Mr. Wlasiuk was convicted of second-degree intentional murder in 2003, but the conviction was overturned three years later.
In People v. Wlasiuk, 32 AD3d 674 (2006), the Third Department, said Chenango County Judge Howard Sullivan (See Profile) erred in permitting the testimony of several witnesses who attested to the defendant’s history of domestic violence. The court also said that Judge Sullivan wrongly admitted diaries and letters in which the victim expressed fear of her husband.
A second trial took place in 2008.
At the second trial, one juror—a local podiatrist—indicated during voir dire that he knew Mr. Wlasiuk’s paramour from his medical practice but expressly denied knowing any other witnesses and insisted he could be fair and impartial.
During a lunch recess, however, a police lieutenant informed the prosecution that he had interviewed the juror at the time of the victim’s death, and that the juror said he knew and worked with her at a hospital, had heard nurses discussing the victim’s marital problems and referred police to other hospital employees who were aware of the domestic violence.
Both the prosecutor and judge raised concerns about the juror’s fitness. In fact, the district attorney expressed concern that if the podiatrist remained, the case would be reversed. But Mr. Scharf "adamantly resisted the discharge" of the juror, the court said.
"Essentially, the People requested that the juror be dismissed for cause—as grossly unqualified under CPL 270.35 (1)—and claimed that they would have exercised a peremptory challenge against the juror had this information come to light when peremptory challenges remained available," the court said.
The juror was questioned in camera, but Broome County Judge Martin E. Smith (See Profile), who presided over the second trial, allowed him to remain on the panel.
After trial, the juror said in a TV interview that he had persuaded "three holdouts" to vote for a conviction based upon the contents of the victim’s diaries. The jury learned of the diaries—which the Third Department said in the 2006 reversal were prejudicial and inadmissible as hearsay—because Mr. Scharf had put into evidence police logs describing them, records show.
"Although the description of the diary’s contents in the evidence log added yet another layer of hearsay, it was defense counsel who offered the logs to show the contents of the victim’s pockets and as proof that police mishandled evidence in the case," the court said in an opinion by Acting Presiding Justice Thomas E. Mercure (See Profile). "Moreover, in response to a jury note asking if the diary entries could be considered as evidence, defense counsel failed to request any limiting instruction, stating, ‘Yeah, they can have it. It’s evidence.’ Less than 10 minutes later, the jury reached its verdict."
The court noted that some jurors later revealed changing their vote to "guilty" because of the diary entries.
Mr. Scharf said in an interview that during voir dire Mr. Wlasiuk’s father told him that the podiatrist had treated his daughter and was sympathetic to the defendant and thought he was innocent. For that reason, Mr. Scharf said, he did not want the podiatrist juror removed.
"Once in a while, somebody drops a piece of information on you like that and it factors into your decision on whether or not to keep the guy," Mr. Scharf said.
Mr. Scharf said that the evidence log describing Ms. Wlasiuk’s diary was included in a "stack of exhibits," and he simply failed to realize that some of the contents were detrimental to his client.
"It was my mistake and I feel horrible that I didn’t catch it," Mr. Scharf said. "I have certainly never been found ineffective before, but I care about my [client] and that he gets another shot."
Chemung County District Attorney Joseph A. McBride said Mr. Wlasiuk, who has been in prison for nearly a decade, will be tried for a third time.
"We are ready to proceed," Mr. McBride said.
The appeal was argued Sept. 9, 2011 by Mr. McBride’s assistant, Michael J. Genute and Mary P. Davison of Canandaigua for the defendant. Ms. Davison was not immediately available for comment.
Justices Bernard J. Malone Jr. (See Profile), E. Michael Kavanagh (See Profile), William E. McCarthy (See Profile) and John C. Egan Jr. (See Profile) joined in the opinion.
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