MEDICAL EVIDENCE AND AUTOPSY REPORT OF DR. STEPHEN M. PUSTILNIK, WHO STATES THAT ASPHYXIA AND BEATING ARE THE CAUSE OF DEATH
Dr. Stephen M. Pustilnik, the doctor who conducted the original autopsy in this case immediately following the deceased death, concluded in his autopsy report that asphyxia (and beating) was the cause of death. (See Autopsy Report, Exhibit E, P.C.R. 1640169). Trial counsel never sought to interview Dr. Pustilnik or to have his appear as a witness.
Since trial, Dr. Pustilnik, who has relocated to
"When the DA asked me to re-review the x-ray with the story that he was shot, the radio dense object to me looked like a bullet. I told the DA that it certainly looked like a bullet and that I would come to trial to state that it was a bullet that I did not retrieve, but that there was no blood in the head or neck and no injuries to major vessels, therefore I was of the opinion that the bullet may have been a coup-de-grace or post mortem and MAY have contributed to the death, but the main cause of death was still the beating and asphyxia.
(Note: A copy of the e-mail was entered three times by the Circuit Clerk at three different parts of the record. At P.C.R. 309-313; 326-330; and 352-356.)
By the time of trial, however, the State had commissioned a second autopsy, by a second doctor, Dr. J.C. Upshaw Downs, who, after conducting a second autopsy over 17 months after the deceased death, concluded that gunshot was the cause of death. (See Trial Record at R. 357) Neither of these doctors’ autopsy reports was submitted as evidence at trial. The jury interrupted its deliberations to ask the court if it could review the two autopsy reports. (See Jury Questions at R. 708-709)
Major discrepancies exist between the two reports. For example, Dr. Pustilnik stated in his report that 'the soft tissue and muscles of the neck are free of extravacated blood or injury." (
In addition to his medical findings, Dr. Pustilnik stated that the prosecutor and Dr. Downs were 'playing games" with the medical evidence in this case (P.C.R. 355:"Also, your client's first defense team should have realized the game being played and not have allowed it.") It should be noted that, when Dr. Pustilnik requested that Dr. Downs be present at the second autopsy, Dr. Downs refused his request: R. 384: "I have not personally discussed this case with Dr. Pustilnik he sent me a memorandum asking to be present at the exhumation autopsy and I declined that request..." Dr. Pustilnik also stated that there was a struggle and that the deceased was severely beaten by his assailant. Trial counsel, based on these findings, told the jury during his opening statements that they would hear evidence that the deceased had been beaten:
R. 208: Now, why do I emphasize that. Because you will hear from the State's own witnesses that this killing was a brutal one, that there was a beating.
Those pictures we talked about when we voir dired you in questioning this morning, you will see them and they will show a face that has been beaten to a pulp. They will show a face that is swollen with swollen lips, and they will show you a head that is beaten in.
Dr. Downs's findings were diametrically opposed to all of the above-listed findings by Dr. Pustilnik. For starters, Dr. Downs testified that gunshot was the cause of death. He testified that the projectile causing such death traveled through the soft-tissue area of the upper neck and fractured the C1 and C2 vertebrae of the spinal column. (R. 352-53) Dr. Downs also testified that the lower part of the skull was chipped and that he found evidence of epidural, subdural and subarachnoid blood. (See Autopsy findings at P.C.R. 178-88) As for counsel's claim that the jury would hear evidence that there was a severe beating ("beaten to a pulp") in this case, Dr. Downs testified as follows:
Q. You dispute his findings with respect to the blunt force injury?
A. There was some blunt force injury. In my opinion, that was not a significant amount of blunt force injury; it was a type that would leave a bruise. There was no indication of fracturing associated with the blunt force injury.
Specifically, there was a small area of hemorrhage on the left side of the head and some hemorrhage into the eyes that would be consistent with blunt force injury.
There is, in my opinion, absolutely no indication of asphyxia in this case whatsoever.
Q. Now, when you say "blunt force injury," Dr. Downs, give me an example of what kind of things would cause blunt force injury.
A. If you fell down on the sidewalk and skinned your knee, it might cause an abrasion where you take off the superficial layers of skin. And Mr. Horton had a small abrasion on the left side of his head.
Trial counsel mis-informed the jury about what the evidence would be because he never interviewed the doctors before trial to learn how vast their disagreements were. Moreover, the State has never explained exactly where its evidence of gunshot came from. Initially, the prosecutor proffered to Petitioner's trial counsel that the evidence of gunshot had come from Batts. Batts, however, explicitly denied providing this information during his trial testimony. Batts testified that he did not have any contact with the prosecutors until approximately two weeks outside of trial, which would have been in early January 2001 (as trial began January 22, 2001):
R. 453: (By defense counsel)
Q. When did you first sit down -- not talking about the video tape we just saw, putting that aside, when did you next sit down to talk to the D.A.'s office and the investigators about the facts or what you contend are the facts on March 26?
A. About two weeks -- a week or two -- about two weeks.
Q. About two weeks?
A. Yes, sir.
Q. So, between March of 1999 and today, you have had interaction with the folks on the -- from the D.A.'s office and with the sheriff'' department and that would have been about two weeks ago?
A. Yes, sir.
Notwithstanding Batts’ denial, the prosecutor still attempted to relate their uncovering of this information to Batts during their closing arguments. This attempt was objected to, and the objection was sustained. It was at this point that trial counsel reiterated the false proffer given to him by the prosecutors:
R. 687: MR. DAVIS: Your Honor, I want to elaborate and expand on the objection I made in closing argument.
At one point, Mr. Broussard stated to the jury or suggested to the jury that the reason a second autopsy was done was because Fred Batts provided the State information about the gunshot wound. That evidence was never put before the jury factually.
What occurred, according to defense counsel's understanding is that Mr. Lampley, Mr. Batts lawyer, made a proffer to Mr. Broussard and that proffer was part of the reason why the autopsy was done. Not disputing that occurred but that evidence was never put before this jury.
It's an important piece of evidence. It's corroborative of Mr. Batts, but it was never put before the jury. Indeed, the contrary. Evidence was suggested that Mr. Batts testified on direct and cross-examination that his corroboration phase began several weeks ago, and he testified his first meeting with the district attorney's office happened several weeks ago. That's what he testified to on direct and cross.
Trial counsel never attempted to ascertain exactly where this evidence came from, so this person or persons’ identity has never been revealed. Ironically, the State no longer contends that this information came from Batts. Now, the State contends that this information came from "people from the street." (SEE APPELLEE'S BRIEF on Rule 32 Direct Appeal, page 24) Also of note is that Batts did not come forward alleging gunshot as the cause of death or that Ray shot the deceased until after the second autopsy was completed on January 5, 2001. These facts, accumulated after trial, have never been placed before a jury.
Ray contends that the above-listed evidence establishes that he is actually innocent of this offense and satisfies the actual innocence standard as established by the U.S. Supreme Court. It further shows that he has suffered a miscarriage of justice to an extent, with constitutional error, that all of his claims of Federal constitutional violations should be reviewed on the merits. (Ray adopts by incorporation CLAIMS 10 AND 18 here, as if plead here in full)
