Opinion
4595/2008
07-18-2011
The People of the State of New York v. Brandin Santiago, Defendant.
FOR THE PEOPLE: Robert T. Johnson District Attorney By: Nancy L. Borko, Esq. Assistant District Attorney Of Counsel FOR THE DEFENDANT: Cesar Gonzalez, Jr., Esq. Of Counsel
FOR THE PEOPLE: Robert T. Johnson District Attorney By: Nancy L. Borko, Esq. Assistant District Attorney Of Counsel
FOR THE DEFENDANT: Cesar Gonzalez, Jr., Esq. Of Counsel
Ann M. Donnelly, J.
The defendant is charged with Murder in the Second Degree and related charges arising from a November 16, 2008 shooting during which seventeen year old Naidairee Walters was killed, and two others were injured. During the course of the trial, the court ruled that the People could introduce various letters and writings seized from the defendant's prison cell. Some of those letters contained explicit threats to witnesses, including Theodore Edwards, a member of the defendant's gang and witness to the shooting. On June 22, 2011, Edwards was arrested on a material witness order issued by this court. The People moved mid-trial for a Sirois hearing (see Holtzman v. Hellenbrand, 92 AD2d 405 [2d Dept. 1983]) to offer prior written statements that Edwards made to detectives and prosecutors in the days following the shooting. A hearing was held on June 28, 2011. At the close of the hearing, the Court issued an oral decision granting the People's application. This decision expands upon the earlier oral decision.
Theodore Edwards and Sr. Detective Investigator Peter Moro testified for the People. Both witnesses were credible. The defendant called no witnesses. Based upon the evidence adduced at the hearing, I make the following findings of fact and conclusions of law.
Citing the assaults and threats to Edwards as well as the efforts by the defendant's friends and family to intimidate other witnesses, the People asked that the courtroom be closed for Edwards' testimony. The Court granted the application. After hearing an application from representatives of the media, the Court ruled that members of the media could be present. Edwards subsequently refused to testify while reporters were in the courtroom. Tr. at p. 658, lines 15-21. The Court permitted the reporters to be heard, but closed the courtroom for Edwards' testimony.
Findings of Fact
Twenty-two year old Theodore Edwards was unwilling to provide many details about what transpired the night of the shooting. He did acknowledge that he knew the defendant, and that at one time was a member of the defendant's gang, which was called 280. He also acknowledged that on November 16, 2008, he attended a party at 1495 Morris Avenue with the defendant and other friends. Edwards refused to answer additional questions about the shooting itself, asserting that he was concerned about his safety and that of his family. Edwards admitted that he spoke to the police and to an assistant district attorney about the shooting, but when asked whether those statements were true, he stated that he "could not answer that question." Tr.a t p. 704, lines 18-25; p. 705, lines 1-4). Edwards also admitted that he had been labeled a "snitch" for cooperating with the police. Tr. at p.683, lines 24-56; p.684, lines 1-12.
During the summer of 2009, Edwards was "jumped" by a group of about seven people whom he knew. He was cut, beaten and lost consciousness, and was hospitalized for his injuries. He claimed to have no memory of what was said to him during that assault, but knew that it was a consequence of rumors that he was "telling" about the shooting. Tr. at p. 676, lines 7-15. He subsequently left the neighborhood, returning only periodically because "he knew people didn't want [him] around. Tr. at p.677, lines 14-46. On June 22, 2011, while the trial was in progress, Edwards was on 168th Street and Morris Avenue with someone he knew as "Black," who was also a member of 280. He had heard that Black was also known as Patmore. Tr. at p.686, lines 2-20. While they were together, a group of people approached, and one of them fired a gun at Edwards, striking him in the arm. Edwards claimed that the "foggy" weather precluded him from seeing who shot him. Tr. at p.684, lines 13-25.
One of the documents recovered in the defendant's cell was an envelope addressed to "Patmore Proctor," with a return address purporting to be that of "Theodore Edwards" of "187 Max Payne Rd." "187" is the number of the California homicide statute, and "Max Payne" is a video game in which participants exact revenge by shooting their targets. Tr. at p.358, lines 7- 12; p.600, lines 19-25; p. 601, lines 7-20.
Edwards ignored subpoenas and calls from detectives and the assistant district attorney assigned to the case. At one point, Edwards was arrested and taken to a precinct. A detective showed him a letter that the defendant had written to "Patmore," the person who was with Edwards when he was shot; in that letter the defendant expressed a desire to shoot Edwards. Detectives spoke with Edwards on other occasions, telling him that he had to testify at the defendant's trial. Edwards repeated several times that he feared for his safety and that of his family, including his newborn son, because his was a "rough neighborhood" with many gangs, and because "nobody likes somebody that snitches." Tr. at p.684, lines 1-12. He did not want to testify because he "knew what could happen" to him. Tr. at p.703, lines 2-10.
On June 7, 2010, Detective Investigator Peter Moro went to Edwards' probation office and met Edwards after a scheduled appointment. He then interviewed Edwards, who told him that he was frightened because people in his neighborhood were aware that he had cooperated with the police in the investigation of the shooting. Tr. at p.736, lines 3-12. Edwards also described the 2009 assault to Detective Moro, which he thought might have been a consequence of his statement to the police. Tr. at p.736, lines 1-11.
Detective Moro met Edwards again during the trial of this case, after Edwards was shot. In one meeting, Edwards described the shooting, and shortly before Detective Moro testified, Edwards told him that someone had thrown a brick through the window of the home that Edwards shared with his aunt and uncle. Like the assault, Edwards thought that the shooting and the incident with the brick might be connected to the fact that he spoke to the police in the aftermath of the shooting. Tr. at p.738, lines 1-11.
In addition to the testimony of the witnesses, the Court has examined the various writings recovered from the defendant's prison cell, which have been admitted into evidence at the trial as People's Exhibit 47. The writings contain references to rats" and the need to kill them, explicit threats to "Theo," and directives to eliminate him as a witness. A few examples will suffice:
1) "Andy gonna smacc [sic] Theo in the head with the bat 4 me....That's my call. He got 2 be dealt with. I just can't have [him] walkin' around the hood without a worry in the world. Andy said he gonna do it. I'm just thinkin' of a perfect time.Theodore Edwards is not the only witness referenced in the defendant's writings.
2) "As 4 Theo....He a dead man walkin'."
3) "With no Theo, it's no strong case. So Theo got to go."
4) An envelope addressed to someone named Patmore Proctor with a return address that reads: "Theodore Edwards 187 Max Payne Apt. 43 Cronx [sic], NY" According to witnesses, "187" is the California murder statute, and "Max Payne" is a violent video game in which characters shoot other characters to exact revenge.
Someone named "Dieya" wrote the defendant regarding a witness whom he was trying to contact, and described a conversation in which the witness told Dieya that she knew "who did it," and that her mother was making her go to court. The defendant references this letter in a letter to someone named "Froggy:" "Dieya wrote me, just sayin' he tryin' 2 talk 2 them bitches 4 me so they won't go to court 4 me." Yet another letter directs someone to obtain pictures of "them rat ass wild bitches. I'm trying to make somethin happen with them."
The defendant's fixation on influencing or eliminating witnesses continued during the trial. After Theodore Edwards was shot, detectives executed a search warrant for the defendant's cell, and found a false affidavit bearing the name of one of the witnesses, Loretta
Julie Marin, as well as letters from others offering to kill a witness, presumably Theodore Edwards. In addition, two of the defendant's relatives were barred from attending the trial after court officers observed them displaying "gang signs" during the testimony of a young woman, Brianna James, whose cousin was also a member of the gang.
Conclusions of Law
As a general matter, the out-of-court statements of an unavailable witness are inadmissible as evidence in chief, because they are hearsay and because their admission would violate the defendant's Sixth Amendment right to confront the witnesses against him. However, "when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. ... [T]he rule of forfeiture by wrong doing....extinguishes confrontation claims on essentially equitable ground.
... That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Davis v . Washington, 547 US 813, 833 (2006) (citations omitted). See also, United States v. Mastrangelo, 693 F.2d 29 (2d Cir. 1982); People v. Encarnacion, ___ AD2d ___, Slip Op. 05433 (1st Dep't 2011); People v. Brown, 308 AD2d 379 (1st Dep't 2003), lv. denied, 1NY3d 595 (2004); People v. Geraci, 85 NY2d 359 (1995).
When the People allege specific facts that demonstrate that a criminal defendant or his agents have tampered with a witness, the trial court must conduct a Sirois hearing to decide that issue. See Matter of Holtzman v. Hellenbrand, 92 AD2d 405 (2d Dep't 1983). If the People prove by clear and convincing evidence that the defendant has "procured the witness' unavailability through violence, threats or chicanery," the trial court may admit the witness' out of court statements as direct evidence. People v. Geraci, 85 NY2d at 365.
The People can satisfy their burden, in whole or in part, by using circumstantial evidence. People v. Geraci, 85 NY2d at 369; People v. Alston, 27 AD3d 311 (1st Dep't), lv. denied, 7 NY3d 751 (2006). In fact, because of the "inherently surreptitious nature of witness tampering," the People will often be compelled to rely on circumstantial proof. People v. Geraci, 85 NY2d at 369; see People v. Cotto, 92 NY2d 68, 76-77 (1988).
It is undisputed that Edwards was unavailable. Despite his initial cooperation with the police, Edwards refused to testify at the trial, citing fear for himself and for his family. During the hearing, he was visibly shaken, difficult to hear, and his testimony was marked by long pauses. Therefore, the only issue is whether the People proved by clear and convincing evidence that the defendant either caused Edwards to be unavailable, or acquiesced in the successful efforts to intimidate him. This Court concludes that the People have met that burden.
In the early days of the investigation, Edwards was cooperative. Detectives interviewed him later in the day of the shooting. He signed a written statement describing the defendant's role in the shooting, and then gave a sworn statement to an assistant district attorney, which was audiotaped.
However, in the years that followed the murder, Edwards was subjected to assaults and efforts to kill him. In the first of these, he was attacked, stabbed and beaten into unconsciousness by a group of about seven people. Several months before the trial, an unknown person threw a brick through the window of his uncle's house, where Edwards was staying. And during the trial itself, on June 22, 2011, Edwards was shot while in the company of one of the defendant's friends.
Of Course, it goes without saying that the defendant was the only person who stood to benefit by silencing Edwards. Moreover, the defendant's role in assuring Edwards' unavailability was demonstrated by overwhelming proof, in the form of his own writings and letters to various people. Those writings contain repeated references to "snitches" and "rats," and specific directions to either kill or silence Theodore Edwards: "As 4 Theo... He a dead man walkin'." "With no Theo, it's no strong case. So Theo got to go." Equally vivid examples are set forth supra at p.4. Significantly, one of the addressees of these directives to eliminate Theo was none other than Patmore Proctor, also known as "Blacc," the same person who was with Edwards when he was shot on June 22, 2011.
Beacause the People have proved by clear and convincing evidence that the defendant "procured the witness's unavailability through violence, threats or chicanery," People v. Geraci, 85 NY2d at 365, Edwards' audiotaped statement, made to an assistant district attorney shortly after the shooting, is admissible as direct evidence against the defendant at trial.
The foregoing constitutes the Decision and Order of the Court.
SO ORDERED.
Dated: Bronx, New York
July 18, 2011
___________________
ANN DONNELLY, JSC