Opinion
1673/95.
Decided June 30, 2006.
The defendant was represented by Ruth M. Liebesman, Esq. New York, New York.
The People were represented by the Office of the District Attorney, Queens County, by Roni C. Piplani, Assistant District Attorney, Kew Gardens, New York.
On February 25, 1997, following a jury trial on the above-captioned consolidated indictments presided over by Justice James Robinson, defendant was convicted of the crimes of Murder in the Second Degree (2 counts) and Criminal Possession of a Weapon in the Second Degree (2 counts). Defendant was sentenced to an indeterminate term of imprisonment of twenty-five years to life for the murder of Richard Harrison and twenty years to life for the murder of Earl Hicks. The sentences were to be served consecutively.
Justice Robinson is now retired. Accordingly, the within motion was referred to this Court for determination.
On October 9, 2001, the Appellate Division, Second Department, affirmed the defendant's conviction ( People v. Jackson, 287 AD2d 520). On January 22, 2002, the Court of Appeals denied defendant leave to appeal ( People v. Jackson, 97 NY2d 705). Thereafter, on June 15, 2003, his petition for a writ of error coram nobis was denied by the Appellate Division, Second Department ( People v. Jackson, 309 AD2d 766). Leave to appeal was denied by the Court of Appeals on December 29, 2003 ( People v. Jackson, 1 NY3d 574).
The charges in the indictment relevant to the instant motion arose out of the shooting of Richard Harrison on November 1, 1989. It was alleged that on that date Mr. Harrison was walking toward his home in the vicinity of 116-44 Van Wyck Expressway Service Road, in Queens County, when the defendant, driving a gray Volkswagen Jetta with Illinois license plates, fired several shots at him, causing his death.
Defendant now moves to vacate the judgment of conviction for the murder of Richard Harrison pursuant to CPL 440.10 on several grounds, including that the conviction was obtained in violation of his right to confrontation under the guidelines set forth in Crawford v. Washington ( 541 US 36). He also moves for certain other related relief.
Post- Crawford, it is now settled that out-of-court statements of a person who does not appear as a witness at trial that are of a "testimonial" nature may not be received to establish the truth of what was stated "unless (i) the declarant is unavailable to testify at the trial, and (ii) the accused was afforded a prior opportunity to cross-examine the declarant on the statement" ( Davis v. Washington, 547 US [2006]; see also e.g., Mungo v. Duncan, 393 F3d 327, 332 [2d Cir 2004], quoting Crawford v. Washington, 541 US at 54; People v. Goldstein, 6 NY3d 119; People v. Paul, 25 AD3d 165, lv denied 6 NY3d 752).
The defendant contends that two statements attributable to Christopher Lloyd which were admitted into evidence over the objection of the defendant would have been inadmissible under Crawford. The Trial Judge made a determination that at the time of trial Mr. Lloyd was unavailable. Pursuant to the firmly rooted "excited utterance" exception to the hearsay rule, ( see People v. Cotto, 92 NY2d 68, 78-79), the Court allowed the People (1) to present the testimony of the deceased's brother, David Harrison, who stated that, immediately after the shooting, he heard Mr. Lloyd shout "I don't believe it. I can't believe it. He just shot Rich. . . . Kevin Jackson just shot Rich," and (2) to introduce into evidence the tape of a 911 call made immediately after the shooting on which Mr. Lloyd is heard, at two separate points, stating in pertinent part,
". . . Kevin Jackson shot Rich. . . . I seen Kevin Jackson's car pull off."
Inasmuch as Crawford was decided after defendant's conviction became final, the first issue presented herein is whether Crawford applies retroactively on a motion for collateral review.
Defendant does not argue that his conviction is not final. As established in Griffith v. Kentucky, 476 US 314, 321, n 6 [1987], a defendant's conviction becomes final when "a judgment of conviction has been rendered, the availability of the appeal exhausted, and the time for a petition for a writ of certiorari elapsed or a petition for certiorari finally denied."
Generally, new rules of constitutional procedure will not have retroactive application when raised collaterally. In Teague v. Lane, ( 489 US 288), the United States Supreme Court established the test for whether a new procedural rule should be retroactively applied on collateral review. In pertinent part, Teague held that a new procedural rule must be applied retroactively if it constitutes a "watershed rule" of criminal procedure which is "implicit in the concept of ordered liberty" ( id. at 311-312).
Crawford substituted a per se bar on the admission of out-of-court testimonial statements that were not subject to prior cross-examination for the balancing test that previously delineated the limits of the right to confrontation ( United States v. Saget, 377 F3d 223, 232 [2d Cir 2004]). The decision broke new ground, and its per se rule was not dictated by existing precedent. Thus, Crawford established a "new" procedural rule ( see Murillo v. Frank, 316 F Supp2d 744 [US Dist Ct, ED Wis 2004]).
While not delineating what constitutional rules are "watershed," the Teague Court noted that if the rule "alter[s] our understanding of [a] bedrock procedural [element] and "vitiate[s] the fairness" of a conviction, then the rule is considered "watershed" ( id. at 311). That a new rule is aimed at improving the accuracy of the trial does not, alone, determine whether or not it is "watershed." The new rule must both "implicate the fundamental fairness of the trial," and be one "without which the likelihood of an accurate conviction is seriously diminished." As the Supreme Court later explained, the rule must also have "primacy and centrality" ( Saffle v. Parks, 494 US 484, 495).
In Beard v. Banks, 542 US 406), decided post- Crawford, the United States Supreme Court explained that the Teague exception "is clearly meant to apply only to a small core of rules . . . [citations omitted]" ( id. at 2513-2514). The Court plainly stated that "it should come as no surprise that we have yet to find a new rule that falls under the Teague exception" concerning procedures "implicit in the concept of ordered liberty." ( id. at 2514).
In providing guidance as to what rules might be so retroactively applied, the United States Supreme Court has repeatedly, and only, referred to the right-to-counsel rule of Gideon v. Wainwright, ( 372 US 335), which "altered [the Court's] understanding of the bedrock procedural elements essential to the fairness of a proceeding" ( Sawyer v. Smith, 497 US 227). The Court has not hesitated to hold less sweeping and fundamental rules outside the exception ( see e.g., O'Dell v. Netherland, 521 US 151).
Although state courts have reached different conclusions on the issue of whether the Crawford rule constitutes a "watershed" rule which is to be applied retroactively, (see e.g., People v. Watson, 5 Misc 3d 1013 (A) [2004]; People v. Dobbin, 6 Misc 3d 892; People v. Encarnacion, 6 Misc 3d 1027(A0 [2005); People v. Vasquez, 7 Misc 3d 762; People v. Ayrhart, 8 Misc 3d 1014 (A) [2005]), the United States Court of Appeals for the Second Circuit, in Mungo v. Duncan, 393 F3d 327 [2d Cir 2004], supra, has held that Crawford did not enunciate a "watershed" rule of criminal procedure subject to retroactive application. Specifically, the Mungo court held that the Crawford rule should not be retroactively applied in the collateral review of a state court's admission of an unavailable declarant's statements under the excited utterance exception to the hearsay rule.
In Mungo, the Court reasoned that the Crawford rule does not necessarily, as required under Teague, "improve the accuracy of criminal proceedings" (citing Teague v. Lane, 489 US at 311-314). The Court stated, in some instances the changes effected by Crawford with respect to the protections provided by the Confrontation Clause will likely improve the accuracy of the fact finding process. An example of this would be those situations in which courts previously "were required to make amorphous' determinations whether hearsay statements bore particularized guarantees of trustworthiness,' and inevitably received unreliable evidence on that basis on some occasions" [ Mungo v. Duncan, 393 F3d 327, 335 [2d Cir 2004], supra, citing Crawford v. Washington, 541 US 36 at 60]). The Court further stated that in other instances, the Crawford rule will "diminish, rather than increase, the accuracy of the process." An example of this would be those situations where otherwise reliable uncross-examined hearsay "admissible under the old rules precisely because it was reliable" will be excluded ( Mungo v. Duncan, 393 F3d 327, 336 [2d Cir 2004], supra).
As of this date, no State appellate court has specifically addressed the issue of whether Crawford must be applied retroactively on collateral review. This Court has considered the pre- Crawford decision in People v. Eastman ( 85 NY2d 265), which has been interpreted as indicating that the New York State Court of Appeals would require any new constitutional rule implicating the "bedrock procedural element the Sixth Amendment right of confrontation" ( id. at 276) be retroactively applied on collateral review ( see People v. Watson, 5 Misc 3d 1013 (A) [2004] supra; People v. Dobbin, 6 Misc 3d 892, supra; People v. Encarnacion, 6 Misc 3d 1027 (A) [2005], supra).
Eastman, specifically held that the United States Supreme Court rule enunciated in Cruz v. New York, ( 481 U.S. 186), bars the admission at trial of a non-testifying co-defendant's confession incriminating the defendant, even where the defendant's own confession "interlocks" with that of his co-defendant. Eastman explained "[b]ecause a codefendant's credibility is inevitably suspect based on the recognized motivation to shift blame to an accomplice, the unreliability of a codefendant's confession is intolerably compounded when, as here, the alleged accomplice does not testify and cannot be tested by cross-examination ( Bruton v. United States, 391 US [123], at 136, supra). This is precisely the type of threat to the accuracy and fairness of a fair trial that the Confrontation Clause was designed to prevent (see id.)" ( People v. Eastman, 85 NY 265, 274, supra).
Applying the Teague test, Eastman observed that " Cruz unquestionably departs from established precedent, and implicates a bedrock procedural element the Sixth Amendment right of confrontation [citations omitted]." Eastman further stated that Cruz makes it clear "that when the incriminating confession of a nontestifying codefendant is admitted against the defendant, the procedural apparatus of trial never assured the defendant a fair determination of guilt or innocence regardless of whether the Trial Judge issued a limiting instruction that the confession not be considered against the defendant, or the defendant's own confession was admitted as evidence against him [citations omitted]." Finding the rule announced in Cruz to be central to an accurate determination of guilt or innocence, Eastman concluded ". . . retroactive application of Cruz is constitutionally commanded on collateral review of a conviction."
Eastman certainly requires that the Teague standard be used to analyze a new constitutional rule such as Crawford in order to determine whether it will apply retroactively on collateral review. However, Eastman clearly recognizes that even if such new rule implicates the confrontation clause, it will only be given retroactive effect on collateral review if it is central to an accurate determination of guilt or innocence and impacts the fundamental fairness of the trial.
Eastman focused specifically on the "inevitably suspect" reliability of the incriminating confession of a nontestifying codefendant in reaching the conclusion that the Cruz rule is central to an accurate determination of guilt or innocence, and that its violation would undermine the fundamental fairness of the trial. The same conclusion cannot be reached with respect to the Crawford rule which encompasses may different types of statements; as discussed in Mungo, application of the Crawford rule would advance accuracy in some proceedings, while impeding it in others ( see also People v. Vasquez, 7 Misc 3d 762 supra; People v. Ayrhart, 8 Misc 3d 1014 (A) [2005], supra).
Therefore, given the extremely limited nature of Teague retroactivity as pronounced in Beard v. Banks, 542 US 406, supra, which was decided post- Crawford and post- Eastman, ( see also Schriro v. Summerlin, 542 US 348), and based on the reasoning set forth in Mungo and Eastman, this Court concludes that Crawford should not be applied retroactively on collateral review. Accordingly, defendant's motion on such ground is procedurally barred.
In any event, even if Crawford were to be applied retroactively, the statements of Mr. Lloyd at issue herein, do not violate the Crawford rule since they are not testimonial.
The United States Supreme Court in Davis v. Washington, 547 US [2006], referring to its decision in Crawford v. Washington, 541 US 36, 53-54, supra, stated "we held that [the Confrontation Clause of the Sixth Amendment] bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' A critical portion of this holding, . . . is the phrase testimonial statements.' Only statements of this sort cause the declarant to be a witness' within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations on hearsay evidence, is not subject to the Confrontation Clause."
In the case at bar, as previously noted, the statements of Mr. Lloyd were admitted into evidence by the trial court as excited utterances and their admission as such was not disturbed on appeal. Nevertheless, even if a statement is correctly considered to be an excited utterance under the rules of evidence, Crawford still requires that a further determination be made as to whether or not the statement is testimonial. Before a statement, including an excited utterance, will be deemed testimonial, it has generally been held that such statement must be generated with structured governmental involvement or must possess the formalities which surround a statement prepared for in-court use ( see Davis v. Washington, 547 US [2006], supra; Crawford v. Washington, 541 US 36, supra; People v. Goldstein, 6 NY3d 119; People v. Bradley, 22 AD3d 33; People v. Marino, 21 AD3d 430; People v. Diaz, 21 AD3d 58; People v. Royster, 18 AD3d 375, lv denied 5 NY3d 794; People v. Coleman, 16 AD3d 254; People v. Rivera, 8 AD3d 53, lv denied 3 NY3d 662; People v. Rogers, 8 AD3d 888; People v. Newland, 6 AD3d 330, lv denied 3 NY3d 679).
In this case, it is clear that Mr. Lloyd's excited utterance overheard by the deceased's brother, precipitated by the sudden and startling event of the shooting, made very close in time thereto, without an opportunity for studied reflection, and without the involvement of government officers, falls outside of the category of testimonial statements prohibited under Crawford.
In analyzing the excited utterances of Mr. Lloyd that occurred during the course of the 911 call, this Court relies on Davis v. Washington, 547 US [2006], supra), which required the United States Supreme Court to decide the question of whether, objectively considered, an interrogation during a 911 call produced testimonial hearsay. For purposes of the opinion, but without deciding the point, the Court stated in a footnote that the acts of 911 operators, when they conduct interrogations of 911 callers, are considered to be the acts of the police (Davis v. Washington, 547 US n 2, supra. The Davis Court held the following:
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution [footnote omitted]" ( Davis v. Washington, 547 US [2006], supra).
In the case at bar, the transcript reveals that the first statement made by Mr. Lloyd to the 911 operator was "I need an ambulance on the Vanwick [sic] and Fox [sic] Boulevard. Somebody just got shot." The 911 operator responded as follows: "Vanwick [sic] Expressway and Fox [sic] Boulevard?" Mr. Lloyd replied "Yeah. Kevin Jackson shot Rich. He was a guard. He's laying on the ground right there, in the head [sic]." The 911 operator did not repeat, question or acknowledge in any way Mr. Lloyd's statement concerning Mr. Jackson. Instead, the 911 operator asked several additional questions aimed at pinpointing the location of the incident. Mr. Lloyd responded to those questions. Then, without any prompting by the operator, Mr. Lloyd suddenly blurted out the following statement: "Was a guard. I seen Kevin Jackson's car pull off." Again, the operator did not repeat, question or acknowledge in any way Mr. Lloyd's statement concerning Mr. Jackson. The balance of the 911 call in which a third person, who identified herself as Glennis Lloyd, intervened, involved inquiries by the 911 operator concerning the telephone number from which the call was being made and the condition of the victim. Ms. Lloyd is heard responding to those inquiries and urgently requesting the operator to send an ambulance to the scene and at one point, is told by the operator "to stop screaming."
The circumstances of the 911 interrogation in this case "objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency" and not to establish or prove some past fact ( Davis v. Washington, 547 US [2006], supra). Thus, the brief and extremely limited interrogation did not produce testimonial statements, causing Mr. Lloyd to become a "witness" within the meaning of the Confrontation Clause.
Nevertheless, as did the Court in Davis, this Court recognizes that statements made in the absence of any interrogation are not necessarily nontestimonial. It is always the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires be evaluated. Accordingly, in making a determination as to whether or not Mr. Lloyd's 911 statements concerning Mr. Jackson are testimonial or nontestimonial, it is essential to consider the surrounding circumstances and the context in which the excited utterances were made. Clearly, the 911 call herein was made immediately after the shooting, a startling event. The victim was still at the scene, lying gravely wounded in the street in dire need of medical attention. The purpose of the call was to describe the existing situation in order to obtain emergency assistance. There was little or no time for studied reflection by Mr. Lloyd. Indeed, his references to Mr. Jackson are randomly intermingled with his statements about the location of the incident and his description of the victim's condition. These factors support the conclusion that Mr. Lloyd's excited utterances concerning Mr. Jackson were not testimonial and thus, their admission at trial did not violate the Confrontation Clause.
Thus, defendant's motion to vacate the judgment based on Crawford grounds is not only procedurally barred, but also fails on the merits.
Additionally, defendant urges this Court to vacate the judgment on the ground that one of his previous attorneys, Michael Mays, was ineffective in that he (i) rejected a plea bargain offer without first discussing it with him; (ii) did not explain his sentencing exposure upon conviction; and (iii) had a conflict of interest arising from his July 1996 representation of defendant's brother in a real estate transaction.
In this regard, defendant alleges that counsel cheated his brother of $65,000 during that transaction and then lured defendant's wife into being robbed of a partial payment counsel made to her on account of the "debt."
Defendant also alleges that his trial counsel, Ronald Rubinstein, who succeeded Mr. Mays, was ineffective for failing to (i) test the 911 tape for authenticity; (ii) object to the introduction of the tape because there was no foundation for its introduction; and (iii) interview potential witnesses.
The history of the post-conviction proceedings in this matter dictates denial of these claims. Defendant appealed his conviction on a number of grounds. Through appellate counsel, defendant argued that (i) the trial court erred when it did not compel a retired detective to testify for the defense; (ii) the same court erroneously denied his request for a missing witness charge with respect to both the retired detective and the 911 declarant; (iii) certain of the prosecutor's comments during summation were improper; (iv) the court improperly restricted defense counsel's summation comments concerning the People's failure to call the aforementioned witnesses; and (v) the trial court erroneously admitted as an excited utterance declarant's statement to the operator identifying defendant as the killer.
Subsequently, defendant, pro se, advanced additional claims after receiving permission from the Appellate Division to do so. So far as is relevant to this motion, defendant alleged that (i) the trial court improperly prevented him from introducing into evidence a police report concerning, and a tape of, interviews of the unavailable 911 declarant to impeach his statement naming defendant as the shooter of Richard Harrison; (ii) the prosecution committed Brady and Rosario violations by failing to disclose a police report stating that Mr. Lloyd saw someone else shoot Mr. Harrison; and (iii) he was denied the effective assistance of trial counsel.
As previously noted, on October 9, 2001, the Appellate Division rejected defendant's claims and affirmed his conviction ( People v. Jackson, 287 AD2d 520, supra). Specifically, the court held that (i) the trial court properly denied defendant's request for a missing witness charge as to the retired detective; (ii) defendant failed to preserve his claim that the trial court should have compelled the detective to testify; and (iii) defendant's remaining claims, including those raised in his pro se supplemental brief, were either unpreserved or without merit. As previously noted, on January 22, 2002, the Court of Appeals denied defendant leave to appeal ( People v. Jackson, 97 NY2d 705, supra).
As previously noted, on June 15, 2003, defendant petitioned the Appellate Division for a writ of error coram nobis. In that application, defendant alleged that appellate counsel was ineffective for failing to claim that his rights under the Confrontation Clause were violated by the admission of both the 911 tape and the testimony of decedent Harrison's brother concerning the exited utterance he had heard. The Appellate Division denied the petition, holding that defendant had failed to establish that he was denied the effective assistance of appellate counsel ( People v. Jackson, 309 AD2d 766, supra). Leave to appeal was denied by the Court of Appeals ( People v. Jackson, 1 NY3d 574).
As previously indicated, rejection of defendant's claims with respect to his earlier attorney, Mr. Mays, is mandated by the above post-conviction procedural history, including his CPL 330.30 motion to set aside the jury verdicts. The motion was brought by Mr. Mays' successor and defendant could have, and in fact, should have, pursued his allegations against Mr. Mays at that time if he were truly aggrieved, so as to set forth the issues on the record for his appeal (CPL 440.10 [a]).
In any event, the representation of a defendant by an attorney carries a strong presumption of effectiveness (see People v. Baldi, 54 NY2d 137; People v. Fernandez, 7 AD3d 730; People v. Birch, 284 AD2d 405, lv denied 96 NY2d 916). The fact that defendant's allegations against Mr. Mays are being raised for the first time now renders them suspect, in light of the extensive history described above.
Furthermore, to rebut defendant's self-serving allegations with respect to the uncommunicated plea offer, the People have submitted an affidavit from the Assistant District Attorney in charge of defendant's case from indictment through trial. Mr. Mays was not the first attorney to represent defendant. In his affidavit, the Assistant District Attorney affirms that no plea offer was ever made to defendant by the People, or to the best of his knowledge, to the court, and that from the beginning defendant asserted, through successive attorneys, that he was not interested in plea bargaining. In addition, the plea offer which defendant alleges was made to Mr. Mays would have resulted in an illegal sentence for the class A-1 felonies with which defendant was charged. Accordingly, it appears that his present claim in this regard is recently fabricated.
Such rebutted claim casts defendant's other allegations in a questionable light as well. The affidavit which defendant submitted from his wife is of no evidentiary value with respect to Mr. Mays' alleged conflict of interest. The affidavit merely indicates that his wife met with Mr. Mays in "early August, 1996" to accept a payment from him on behalf of defendant's brother, and that she believes he "set her up" to be robbed. The statement is meaningless and unsupported by evidentiary facts. Moreover, defendant did not dismiss Mr. Mays until sometime in mid-September. It strains credulity to believe that defendant would continue to retain for that length of time someone he believed had cheated his brother and who was involved in the "robbery" of his wife, which claims again, are unsubstantiated.
In sum, defendant's allegations with respect to Mr. Mays are supported only by defendant's own self-serving and conclusory affidavit. His motion papers are devoid of evidentiary support and fail to raise an issue of fact sufficient to overcome the strong presumption of Mr. Mays' effectiveness (see CPL 440.30[d]; People v. Brown, 56 NY2d 242; People v. Ford, 46 NY2d 1021; People v. Session, 34 NY2d 254).
Defendant's claims with respect to the alleged ineffectiveness of his trial counsel are also subject to a procedural bar. Defendant raised the issue of ineffectiveness in his supplemental pro se brief upon his appeal, and the claim was implicitly rejected In view of the State's strong interest in the finality of judgments, seriatim motions for relief which merely change the particulars of a defendant's allegations will not be sanctioned (see People v. Cooks, 67 NY2d 100; CPL 440.10[a], [c]; 44010 [3] [a]; People v. Friedgood, 58 NY2d 467; People v. Lake, 213 AD2d 494, lv denied 86 NY2d 737).
Lastly, in view of the foregoing, defendant's motion for discovery is denied as academic. Even if the Court was to consider his post-conviction requests for the original death certificate of Richard Harrison and the original 911 call reporting the shooting of Mr. Harrison, the Court finds, in the first instance, that there is no general constitutional right to discovery in criminal cases (see Weatherford v. Bursey, 429 US 545, 549; Matter of Miller v. Schwartz, 72 NY2d 869).
Although legislative policy directs disclosure of evidence mandated by fundamental fairness (see People v. Colavito, 87 NY2d 423, 427), and recognizes "area[s] of constitutionally guaranteed access to evidence (see California v. Trombetta, 467 US 479, 485), there is no statutory basis under Article 240 for post-conviction discovery (see Matter of Washpon v. Kings County Dist. Attorney, 164 Misc 2d 991). Absent such a statutory basis, the court generally is without authority to order same (see Matter of Miller v. Schwartz, 72 NY2d 869, supra; Matter of Brown v. Grosso, 285 AD2d 642, lv denied 97 NY2d 605, Matter of City of New York v. Gentile, 248 AD2d 382; Matter of Brown v. Appelman, 241 AD2d 279).
In any event, neither the New York City Health Department nor the Medical Examiner's Office are under the control of the District Attorney and the People's disclosure obligations do not extend to items not in their possession or control (see People v. Washington, 86 NY2d 189). Furthermore, as to defendant's request to examine the 911 tape for tampering, there is no basis for believing that the original master reel of 911 calls made at approximately the same time as the subject call, from which the tape admitted at defendant's trial was copied, is still in existence years later, when police policy is to maintain the reel for only 90 days. Defendant should have moved for such relief at the appropriate time, provided he was able to establish a good faith basis for such allegation.
Accordingly, for all of the foregoing reasons, defendant's motion is denied in its entirety.
This constitutes the decision and order of the Court. The Clerk is directed to forward a copy of this decision and order to the attorney for the defendant and to the District Attorney.