Keywords

circumstances; duty; homeowners’ association; Murder Book; premises liability; reasonable act; theory

What happened?

A young, single woman was found lying dead on the floor of her 14th-story apartment in a secured condominium complex. She had been injured in a scuffle and suffocated with a pillow.

Who was being sued, and why?

The Harbor View Homeowners’ Association was the named defendant. They were being sued on the grounds their security officers were negligent in allowing the murderer, the victim’s former boyfriend, access to the secured complex and her apartment.

Who was involved?

When did it happen?

July 3 at approximately 2:45 a.m.

How did it happen?

Unit 1404 had a magnificent view of the harbor. The unit was owned by a Japanese national who was friends of the Yamamoto family. He had little reason to travel to the United States anymore and allowed Annie Yamamoto to live in his stateside condo. Annie had a challenging job in the fishing industry. She and two of her coworkers, Sonny Fatau and Barbara Andrews, socialized both on and off the job. As time passed, Annie and Sonny’s friendship developed into a romantic affair.

Annie invited Sonny to move his personal effects into unit 1404, and the two set up house together. Every resident had an electronic access card that unlocked the lobby doors and allowed access to the elevator banks. Without the card, one could not enter the lobby. Guests, visitors, and vendors were required to use a phone mounted on the exterior wall. Using a resident directory posted on the wall next to the phone, the visitor could call the desired apartment, and the resident from his or her apartment could remotely release the lock to allow entry (i.e., “buzz them in”).

Sonny wasn’t issued an access card because he wasn’t an owner. He could have been issued a card, but Annie reasoned that there was no reason for him to have one. After all, they left each morning for work together, returned home at the end of the day together, went out at night together, and so on. Sonny rarely had occasion during the two months he lived there to come or go alone. And if he did, he’d call Annie from the visitor’s phone and she’d release the lobby door lock from her apartment. All the security officers knew Annie before the relationship, and subsequently mentally identified Sonny as Annie’s live-in boyfriend.

After a couple of months the romance cooled and Annie came to the conclusion the relationship was over. She asked Sonny to move his things out of her apartment. He begged her to think it over, but she was adamant. It was Saturday morning, July 1. Sonny made three trips through the lobby, past security officers, during his moving, and was readmitted each time by using the outside phone and having her remotely release the lock on the door.

After getting settled back in his old room at his parent’s home, he phoned Annie, but each time she would hang up on him. Although she was happy the relationship was over, he was crushed by the turn of events and wanted to find some way to reestablish the affair. That Saturday evening he visited all the clubs and bars they typically spent time in, hoping to find her and engage her in a reasonable discussion that surely would end up bringing them back together. He couldn’t find her that night.

In a phone conversation with a friend the following day, Sonny agonized over his inability to get Annie to talk with him or find her. His friend told him several of their regular group, including Annie, would be at the Mariner’s Club around 10:00 p.m. that night.

Sonny arrived at the Mariner’s Club at 9:30 p.m., ordered a drink, and waited for Annie to arrive. However, 10:00 p.m. came and went with no group and no Annie. Another friend wandered in; when questioned, he said he had seen everyone, including Annie, at the TropiGal Club. Sonny settled up with the bartender and walked the bayfront to the next nightclub. Inside it was smoky and dark as music roared on this typically crowded Sunday night. Sonny easily worked his way to the bar, given his substantial frame. With drink in hand, he moved among the partygoers until he spotted Annie. She had already been alerted to the fact he was looking for her, she so steeled herself for a confrontation. When they came face-to-face she again told him it was over and he needed to get out of her life. He tried to convince her it wasn’t necessarily over. In her view he was becoming a real nuisance who wouldn’t let go, so she excused herself to go to the restroom, gathered a couple friends, and slipped out the side door. He ordered another drink and maintained a watch on the ladies’ restroom until he realized he must have missed her and she must have gone home.

Sonny, now somewhat under the influence of alcohol, decided he would go to the condo and try again to discuss their relationship. He walked the bayfront, arriving at the lobby doors about 1:30 a.m. It was now early Monday morning and the streets were empty. The lobby was brightly illuminated, and the uniformed security officer, Fred Miller, was seated at a desk with his back against the wall, facing the glass doors. Miller watched Sonny go to the visitor phone and could tell he was calling a resident.

Sonny dialed unit 1404 and let the phone ring at least 20 times. No answer. He hung up the phone and went to the double glass doors and waved the security officer to the doors. The officer recognized Sonny as Annie’s boyfriend, but didn’t know Sonny had been evicted.

Miller walked to the door, opened it, and asked Sonny what he wanted. “She won’t answer,” he said. The officer then instructed him to try calling again. Sonny returned to the wall phone and redialed. Miller allowed the door to fully close and it was again in a locked mode, but he stood near the door and continued to watch Sonny on the phone. As the officer watched, he saw Sonny in the process of hanging up just as the electric latch of the door buzzed open. Sonny moved toward the unlocked door, but just as he was about to push the door open, the buzzing latch reset and the door was again locked. The security officer was of the belief Sonny had indeed made contact with his roommate and the lock was opened from the unit, but Sonny was too slow to make the door in time. So Miller unlocked the door and allowed him in. Sonny indeed had not talked to her on the phone but assumed (because the door had inexplicably been remotely opened) she had realized he still wanted to talk and decided to let him in.

He took elevator #1 and ascended to the 14th floor. He knocked on the door of unit 1404 and called her name numerous times but there was no answer. While Sonny was on the 14th floor, the security officers made their scheduled post changes and rotated to different locations within the complex. Miller, who had been in the north lobby, was now replaced by Officer Charlie Wong, who took up his position at the desk. Typically, when an officer is relieved he advises the new person of any conditions or events that may be of importance. Miller had nothing unusual to report to the new officer.

Frustrated over Annie’s refusal to open the door, Sonny returned to the lobby and approached Wong, who recognized Sonny. Sonny complained that Annie was being stubborn and wouldn’t let him in and he asked Wong to use his key to let him in. Wong responded, “You know I can’t do that. If she won’t let you in, then you’re out of luck. It’s against policy for me to open any apartment without the specific authorization of the resident and you’re not listed here in the directory as a resident.” Sonny said he’d go back up and try again. Sonny, clearly, believed she had left the TropiGal Club, returned directly home, and was in the unit. This belief was reinforced with the complex door’s latch being remotely unlocked.

Wong watched Sonny while he rode up in elevator #1 on his closed-circuit television monitor. Every elevator cab was monitored. While casually watching Sonny, he noticed a taxi pull under the porte-cochere and saw a young woman exit, pay the driver, and approach the lobby doors. It was Annie. She used her access card, entered the lobby, said “Hi” to Wong, entered elevator #2, and ascended to the 14th floor.

Sonny was again in the process of knocking on the door when he heard an elevator open. He turned in that direction and around the corner came Annie, who, shocked at his presence, exclaimed, “What the hell are you doing here?” Sonny tried to explain he thought she had let him in and all he wanted to do was have a few minutes to talk about their breakup. “Please,” he pleaded. In exasperation she said okay, but insisted their visit must be brief because of the late hour.

Entry into the unit commences with a long narrow hallway opening into the living room. They sat down across from one another. Both had been drinking, and their voices were somewhat raised. The discussion about why she wanted to end the relationship deteriorated into an argument. The arguing brought them both to their feet. Suddenly, Annie forcefully slapped Sonny in the face. Infuriated by being struck, Sonny struck her back. They again exchanged blows, several times, each one more forcibly delivered. Both grappled with one another, and they fell to the floor, with her screaming. Several little tables, including the one on which her purse had been placed, and a lamp were knocked over. Sonny, significantly larger than Annie, grabbed a pillow and pushed it into her face and smothered her screams. Eventually she relaxed. He released the pillow and observed that she was now unconscious. Bleeding and distraught, he left her on the floor, returned to the elevators, and rode elevator #2 down to the lobby. Officer Wong watched him on the monitor as he descended. Nothing unusual was noted. The time on the videotape reflected 3:03 a.m. Sonny left the building by the east door and walked home.

Upon arriving at home he called her apartment but there was no answer. He went to bed. Several hours later, Sonny called her apartment again because she didn’t show up at the office. Barbara came by and asked where Annie was. Sonny said he didn’t know. That day he called the apartment several times, with no answer. Sonny assumed she didn’t feel well after their fight and wasn’t answering her phone.

The next day was a holiday and the company’s annual picnic, a big event. Annie didn’t show up, which started to cause Sonny some alarm. Barbara was mystified because she couldn’t reach Annie either. Her inability to contact Annie turned to alarm. When Annie failed to report for work on the morning of July 5, Barbara went to Harbor View and, again, after no answer from the unit, asked to speak to the manager on duty at the desk. Barbara explained Annie hadn’t been seen since Sunday night and something must be wrong. Reluctantly, the manger used a pass-key and the two entered unit 1404. The manager led the way down the narrow hallway and was the first to enter the living room. He immediately said, “Stay back. Don’t look in here,” but Barbara pushed past the manager, then threw her hands to her mouth and moaned when she saw the body of her friend on the floor in the disheveled living room, obviously dead. The two, both mortified, quietly backed out and called the police.

The next day, following the detective’s investigation, which included interviewing the security officers who were on duty and viewing the security camera videotapes, Sonny was taken into police custody. He confessed to the crime, although he claimed it was not intentional and thought she had simply passed out from too much drinking and too much fighting.

Assessment of the plaintiff’s theory

This was a straightforward civil complaint that, but for the security officer’s act of allowing Sonny into the building, there would have been no murder. The plaintiff’s position was the officer’s negligence was the proximate cause of the crime. The essence of the lawsuit centered on one question: Was the act of opening the door and letting Sonny in negligent or not?

Other issues, such as whether or not this was a foreseeable act because of the history of crime in the complex, did not come into play in this case. Why not? Because this murder would have been considered a crime of domestic violence or a crime involving parties who were acquainted. Had the crime not been solved or had the death of Annie been a mysterious event with the belief or possibility the perpetrator was a stranger who had unlawfully gained entrance into the complex and randomly preyed on a hapless victim, then the issue could have been classified as a “premises liability” case, which includes the theory the property was dangerous, crimes of violence were foreseeable, and the security procedures failed to make the property safe.

The civil lawsuit always follows the criminal matter, like in the O. J. Simpson murder case. Simpson was prosecuted for a crime (a public offense) and was found not guilty in the criminal courts, because the jury must unanimously agree the suspect is guilty of the offense beyond a reasonable doubt. Subsequently, he was prosecuted by the plaintiffs in the civil court for a tort (a civil wrong) and was convicted for his commission of an injury (the murder). The burden of proof in civil court is remarkably less than in criminal court: it only requires a preponderance of evidence to find one culpable.

This action against the Harbor View Condominiums followed the criminal action against Sonny, and the plaintiffs and their legal counsel had the benefit of all the information that was obtained by the police, which was the platform or resource of information for their case. Yes, they sued Sonny as well, even though he was in prison. However, the Harbor View Homeowners’ Association was the real target (in reality, their insurance company had the real “deep pockets”). I was retained by the law firm defending the Harbor View Homeowners’ Association.

When the police arrived at the scene on the morning of July 5 they had to start with a blank page. They had no information other than the name of the victim and the apparent cause of death. They had no idea if this was an act of domestic violence or a predatory crime.

Accordingly, a classic and standard homicide investigation was launched, conducted by experienced homicide detectives, and all necessary steps were taken to preserve and record the crime scene. Such steps included taking numerous photographs, an evidence technician drawing the crime scene, the search for latent fingerprints (and lifting and preservation of any), and the lifting of blood stains for subsequent comparison and DNA analysis. It should be noted that the drawing of a crime scene is like looking down on the room from above. The resultant diagram clearly reflects the spatial relationship of the body to other objects in the room, including specific distances, the location of any weapon that may have been left behind, the location of blood spatter, and the location of furniture, etc. Photographs supplement the drawing.

While this focused activity on the scene was underway, the detectives concentrated their efforts on locating and interviewing witnesses. Barbara advised the investigators she and Annie went to her apartment in The Wave complex from the TropiGal Club. Annie left The Wave complex in a taxi about 2:30 a.m., presumably headed for home. The three graveyard officers who would have been on duty between midnight and 8:00 a.m., including Officers Miller and Wong, were called in. Their recollection of the events and the retrieval and review of the videotapes clearly identified Sonny was a possible suspect.

Sonny was taken into custody as he left work that afternoon. He was escorted to his home where the clothing he was wearing Sunday night was seized for crime lab analysis.

At the police station, Sonny admitted his confrontation with Annie, claiming he was provoked into violence and his only intention was to subdue her. He appeared contrite. His subsequent detailed confession was recorded. Indeed, the scenario of events, as outlined in this chapter, is almost wholly Sonny’s version of what transpired, and the bulk of material that was available for my review and analysis of the event.

The entire police file, usually a voluminous package, is referred to in the police profession as a “Murder Book.” In my task as forensic consultant and expert for the defense, I was obliged to read and absorb the contents of this material.

Sonny was indicted for murder. Following the preliminary hearing, he waived his right to trial, pled to a lesser offense, and was sentenced to the state penitentiary for 25 years.

Assessment of the security officers’ conduct

Review of the Harbor View Condominium’s policies and procedures, examination of the security officers’ job descriptions, and interviews with key employees and managers of the complex revealed that security officers were not directly involved in the electronic access control program. Access cards were issued and controlled by management, not security. That was also true with the replacement of lost cards. Put another way, security officers did not control access to the complex. They did, however, augment the controls during nonbusiness hours (5:00 p.m. to 7:00 a.m.) by their assigned presence in the front lobby. For example, if a resident lost his or her card and couldn’t get in, the security officer could allow that individual passage if that resident’s identity and ownership of a unit was confirmed. There was an up-to-date directory of residents, to which the officer could refer. The officer’s visible presence in the lobby also served as a deterrent to those who might want to follow a resident in while the door was unlocked, referred to as tailgating.

The two specific issues centered on Officers Miller and Wong:

What were those circumstances?

The plaintiff and their security expert witness took the position that Wong knew Sonny was having a problem getting the resident to open the door to her apartment. Wong also knew Sonny exited the elevator on the 14th floor and was obviously up there. With that knowledge Wong then saw the resident, Annie, enter the lobby. The plaintiff’s contention was it was negligent on Wong’s part not to warn her that her boyfriend was up there. Had he warned her, she would not, in all likelihood, have gone up, and would be alive.

That contention was probably true. Had Annie known Sonny was standing at her door she probably would have avoided another confrontation and asked the officers to remove him, or call the police to remove him.

But the real issue was: Did Wong have a duty to warn her? Was he required or obliged to warn her? On the surface it would appear that indeed he should have. But a careful reflection on the events, in my view, was why would he warn her? He had no duty to warn because:

I testified to all the above when my deposition was taken a couple months prior to the trial.

Pretrial meeting and trial

It’s a common practice in defense firms for an associate attorney to work with the expert. If the matter doesn’t settle and it ends up in trial, the trial lawyer for whom the associate works surfaces and wants to personally meet the expert and review the expected testimony.

I was asked to fly in the day before my appearance in court and meet Hugh Sobinsky, the attorney actually trying the case. The meeting was late afternoon, after the court recessed for the day. The plaintiff’s case had been presented to the jury in its entirety and so had the defense’s case, except for me. Following my testimony, the defense would rest.

We sat in Sobinsky’s office; walls covered with awards, certificates, diplomas, and lots of professional football photographs, including photos of Sobinsky, an imposing lineman in his younger days. We sat on opposite sides of his big desk, with feet propped up. He held a Dixie cup to spit in—Sobinsky was addicted to chewing tobacco. He was known far and wide for his spitting into a Dixie cup. He even did it in the courtroom. It was his signature.

Sobinsky briefed me on his assessment of the trial’s progress, reciting, in bits and pieces, some of the significant testimony, especially in the plaintiff’s case. He said it now came down to the plaintiff’s position that the guard should never have permitted Sonny access to the building. Further, the plaintiff contended that because he was allowed in, Sonny laid in wait for Annie on the 14th floor. When she approached her door he surprised her, forced her into her unit, and, while in a rage, smothered her to death. He said the matter was now worrisome and sensed the jury was sympathetic to the plaintiff’s position. I pointed out how that conflicted with Sonny’s version of how she let him in. He knew that, of course, but the jury didn’t like or believe Sonny.

I told Sobinsky there was evidence to refute the theory Annie was forced into her own apartment. “What evidence?” he asked, “I’m unaware of any evidence. The existence of such evidence could make a major difference in the jury’s view of this case.”

I informed him:

I reviewed all the information in the Murder Book. The diagram of the crime scene depicts the location of Annie’s purse, where it fell by the sofa where she had been sitting at the beginning of her conversation with Sonny. The contents of the purse were inventoried by the police. Among the contents was the key to her apartment. In fact the police kept and used that very key to come and go during their investigation. That purse was a small black purse that zippered shut. The zipper had to be opened to inventory its contents.

Sobinsky was incredulous. Lawyers are not supposed to be surprised at time of trial. They hate being blindsided; that’s what pre-trial discovery is all about. The plaintiff’s attorney was not going to like this surprise. Obviously, if the plaintiff knew of this key they wouldn’t have theorized how Sonny laid in wait and abducted her and forced her into the unit. How could I have kept this highly significant bit of information secret?

I had not kept it a secret. I wasn’t asked any questions, either in my sworn deposition or in any conversations with Sobinsky’s associate about how the two entered the apartment. I wasn’t informed until this last minute that lying in wait inside the complex was a theory to buttress the complaint of the security officer allowing Sonny in and subsequently watching Annie going up in the elevator. The theory of forcible entry was not an issue when I was deposed. Had it been, I would have testified that didn’t happen because, had she been surprised and forced into her own apartment, the key wouldn’t have been tucked away inside a zipped-closed purse; rather it would have been in the lock, or on the floor by the door. If forcibly wrestled through the doorway and dragged down the hallway leading to the living room, Annie wouldn’t have had the time to replace the key in her purse and zip it closed. This revelation shocked Sobinsky, and he knew it would be a bombshell in court in the morning.

The next day, after I raised my right hand and faced the clerk of the court who asked, “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” and I answered, “I do,” I testified as to my opinions about the conduct of the security officers and concluded with my opinion that Annie was not surprised, seized, and forced into her apartment. Of course, I supported it with my findings about the purse and key. “Had she been surprised during her entry the key would have remained in the lock or fallen to the floor during the struggle.” I could see the face of the plaintiff’s attorney turn white.

The brief cross-examination by the rattled counsel concluded with one last question: “Well, Mr. Sennewald, the murderer could have placed the key into her purse and zipped it shut, couldn’t he? Isn’t that possible?”

I testified, “Certainly it’s possible, anything’s possible, but it’s unlikely.”

The jury found for the defense on the basis there was no negligence.

Postscript

I later learned that during the trial, the insurance carrier had offered the plaintiffs (Annie’s family in Japan) $1,000,000 to settle. The family rejected the offer and chose to continue with the trial with the belief the jury would find for the plaintiff and award a larger amount. They ended up with nothing.