Opinion
8406/07.
Decided November 4, 2011.
David Cooper, Esq. Brooklyn NY on the motion and hearing; Steven Legon, Esq. New York, NY on the post hearing motion, for Defendant Tony Canales.
Office of Charles J. Hynes, District Attorney Kings County by: Assistant District Attorney Catherine Dagonese on the motion and hearing; Assistant District Attorney Anna-Sigga Nicolazzi at the hearing (Assistant District Attorney's Leonard Joblove and Jodi L. Mandel appear in addition to ADA Dagonese on the post-hearing motion), for the People of the State of New York.
By a motion, dated April 5, 2011, the defendant moved pursuant to CPL 440.10 to vacate his September 23, 2008 judgment of conviction of Murder in the Second Degree (P.L. 125.25) and Criminal Possession of a Weapon in the Second Degree (P.L. 265.03) after a jury trial on which he was sentenced to concurrent terms of 20 years to life and 15 years plus 5 years post-release supervision respectively, contending he was deprived of his federal and state constitutional rights to effective assistance of counsel and that the prosecutor engaged in misconduct by presenting false arguments to the jury.
As discussed below, the motion is granted as to the murder conviction and denied as to the weapons conviction. Background
The defendant's motion was based on a claim, now conceded to be true, that a surveillance video taken at the time of the shooting and which was introduced into evidence at the trial showed the defendant pursuing someone other than the deceased, a purported Crips gang member named Martin Gustave, even though both the prosecutor and defense counsel asserted at the trial that the video showed the deceased being pursued. In fact, unknown to the jury, the deceased is seen in this video as a bystander.
Defense counsel, appointed pursuant to County Law 18B, is an experienced, well-regarded criminal defense attorney and the prosecutor is also experienced and well-regarded. What happened in this case turned out to be a perfect storm of false assumptions, overlooked evidence, missed opportunities to learn the truth, and erroneous conclusions, and as a result, the defendant was convicted of murder.
The People consented to a hearing on the motion in an affirmation dated June 13, 2011. The Court granted a hearing limited to the issues pertaining to the defendant's claims regarding the video. The Court denied a hearing on that portion of defendant's motion seeking also to litigate issues regarding certain ballistics testimony and the prosecutor's argument to the jury concerning that subject. The Court denied this portion of the motion because there was sufficient evidence in the record to permit adequate review of this claim on appeal. CPL 440.10 (2) (b). The defendant filed undated post-hearing papers on October 5, 2011. The People filed papers dated October 17, 2011. The defendant filed an undated reply on November 2, 2011.
Summary of the Trial Evidence
On August 22, 2007, at approximately 11:15 P.M., at the corner of Flatbush and Parkside Avenues in Brooklyn, the defendant shot Antonio Bruce one time in the torso causing Mr. Bruce's death. This fact was not contested at the trial. In oral, written and video statements to the police and District Attorney's Office, the defendant admitted to firing the shot that struck Bruce but claimed that the shooting had been accidental, that he was unaware the weapon was loaded, and that it discharged because someone bumped his elbow. Most of his statement discussed what happened before and after the shooting and did not focus on the details of the shooting itself.
The defendant's claim of accident sharply conflicted with a surveillance video showing the defendant with a gun in his hand, arm outstretched, walking rapidly after a man who is seen running, falling at a curb, and then getting up and running off camera followed by the defendant. The defendant's actions in this video, as was argued by the prosecutor at trial, certainly belied a claim of an accidental shooting. (However, the person running and falling in the video was not the deceased Mr. Bruce. It was, instead, Martin Gustave, a rival gang member. Mr. Bruce, a fellow gang member of the defendant's, is actually seen in this surveillance video as a bystander to the pursuit.) Another video, taken from a different angle, showed the defendant returning to the scene holding a gun at his side. (The defendant testified at a hearing held on this motion that he accidentally shot the deceased after the conclusion of the events depicted in the video.)
No witnesses to the shooting testified at the trial. The People's case was based on the surveillance video, the defendant's statements, and the erroneous assertions by both counsel that the person being chased in the video was the deceased.
The Prosecutor's Opening
The prosecutor began his opening statement telling the jury that on August 22, 2007, about 11:00 pm on Parkside and Flatbush Avenues there was a dispute involving the defendant and the Crips, a gang that uses blue as its color (Trial Transcript, hereinafter "T." at 16). He said a girl named Amanda Lugo was among those present (T. at 17-18).
The jury was told that an ARGUS video surveillance security camera was at the location (T. at 18-19). In describing the video, the prosecutor stated, "[Y]ou don't get the whole homicide captured on video, but you will get a snippet, maybe a five second piece that you'll be able to see, where you'll see the defendant enter with a handgun (counsel indicating) in his hand pointing it at someone and chasing them through" (T. at 19).
The prosecutor described the arrest and questioning of the defendant and summarized the substance of the defendant's oral, written and videotaped statements, in which the defendant said he was with his friends, was confronted by Crips, left the confrontation, and returned with a gun that he claimed he believed was unloaded in order to scare people away. In his statement, the defendant explained that the shot was caused by someone who tugged on his arm (T. at 20-23).
The prosecutor then gave the jury more detail about the video stating, "[Y]ou'll see someone come running into the picture tumbling, then getting up and running out. You'll then see the defendant come in the picture, pointing the gun (counsel indicating) chasing this person and it appears to be firing a shot. There is no audio on it. You can't hear that"
(T. at 23-24). The prosecutor continued to contrast the video with the defendant's statement stating, "You'll see no one tugging at his arm. You will see no real commotion. You'll actually see some people kind of just strolling through the picture in the bodega" (T. at 24). The prosecutor then said, "These two pieces of evidence will be the critical evidence in this case" (T. at 24). (Unknown to the jury, one of the "strolling people" in the video was actually the deceased who subsequently was shot by the defendant.)
The prosecutor also told the jury that Amanda Lugo (who ultimately did not testify at the trial) identified the defendant in a lineup as the person who shot Antonio Bruce (T. at 24).
The prosecutor concluded, stating, "[A]fter the witnesses come forward and testify here today, combined with the defendant's admission of being the one that fired the shot, even though he claims it was an accident, when you combine that with the security camera which shows it was not an accident, after you've heard all the evidence in this case, that you will return a guilty verdict for murder in the second degree" (T. at 24-25).
The Defense Counsel's Opening
Defense counsel told the jury to pay attention to the details, that there was only one shot and that the deceased was shot in the front (T. at 26). He then gave a description of the videotape stating that, "[W]hat you are seeing on the videotape is the end of the situation, not the beginning, not the middle." When you put that together, what you see on the videotape and Mr. Canales' statement, it makes sense that at that point in time what you saw was somebody who was shot, running, collapsing. What you also see is somebody running away through a crowd in the same direction after a shooting took place . . . What you don't see is the shooter. What you don't see is the commotion that was going on prior to this incident" (T. at 26). (Although defense counsel's opening stated that the fatal shot had been fired before the events depicted in the video, and the prosecutor's opening statement stated that the defendant appears to fire a shot in the video, both of these assertions were untrue. The one and only shot fired took place after the events shown in the video.)
Counsel then told the jury, "You have a bunch of criminals standing on the corner acting like a bunch of criminals . . . This is my territory. You are wearing the wrong color, and that's what it's all about . . . This man was frightened. Had he not gone and gotten a gun, this wouldn't have happened . . . [H]e found himself surrounded by bad guys. Whether you consider him a bad guy or not, that's for you to draw a conclusion. What he did was the ultimate act of stupidity. He introduced a gun into this scenario, but listen to his testimony, listen to his statement" (T. at 27).
The Trial Testimony
As noted, at the trial no one identified the deceased in the video and no witness to the shooting testified. There was no evidence introduced to show when the deceased was shot. The prosecution did not call Amanda Lugo, because the prosecutor claimed she was afraid and would refuse to testify if called. Another potential witness, Dwayne Smith, had been shot and killed (T. at 146-147).
Defense Counsel's Summation
Defense counsel stated that the prosecution had the burden of proof and that the jury never heard what happened other than from the defendant's statement (T. at 161-162). He argued that the evidence was insufficient to prove the defendant acted with an intent to kill anyone (T. at 164). Counsel described the video and erroneously conceded that the video showed the deceased being chased: "What you see in that video is the unfortunate demise of that individual. You saw him after he was shot. You saw him running. You saw him collapsing. You saw him running. You saw him [referring to the defendant] with the gun running the same way" (T. at 166). Counsel, repeating the assertion made in his opening statement, said the video showed "the actions after the incident occurred" (T. at 167).
Not only did defense counsel in his summation explicitly agree with the prosecutor's implied assertions that the video showed the defendant pointing a gun at the deceased,
defense counsel also erroneously argued that the defendant continued to chase the person he had shot. This sequence would make it difficult to believe the defendant's statement asserting that the shooting was accidental. Nevertheless, given that defense counsel was acting under the erroneous belief that the defendant was chasing the deceased while pointing a gun at him, defense counsel really had no other choice other than to make the feeble argument that chasing the deceased was not inconsistent with the defendant having previously accidentally shot him.
The Prosecutor's Summation
At the outset of his summation, the prosecutor told the jury that by the defendant's own statements, which were adopted by defense counsel as the true version of the events, the defendant was guilty of the criminal possession of a weapon count (T. at 174-175). In response to defense counsel's argument that there were no witnesses to rebut the defendant's statements that the shooting was an accident, the prosecutor told the jury he "would have liked to put Amanda Lugo on the stand to tell you exactly what happened." Defense counsel's objection to this improper comment was sustained, and the jury was instructed not to speculate about what a witness that was not called would have said (T. at 176).
The prosecutor argued that the video itself showed the circumstances of an intentional shooting (T. at 178).
The prosecutor also argued that the defendant's statement that he carried what he believed to be an unloaded gun into a volatile gang confrontation in order to calm things down by scaring people was not credible (T. at 179-180).
The prosecutor then played the video (T. at 180). While it was being played, the prosecutor told the jury, "[Y]ou see someone come falling into the crime scene . . . [Defense counsel] says [in his summation] the shooting has already occurred at that point" (T. at 181). As the video continued and showed the defendant entering the picture, the prosecutor stated, "You tell me if he's running away or chasing this person down. Evidence of intent. His intent was to kill Antonio Bruce or to cause him serious physical injury . . . You could see the gun pointed out right here in his hand. He's pointing it at this individual running away, Antonio Bruce. Watch him maneuver here. Now he maneuvers around and continues to chase. Nowhere in that period of time was anyone holding or tugging at his arm. Even if [defense counsel] is right, that [the shooting] happened previous[ly], he started to chase Antonio Bruce down. He continued to follow him. That's not an accidental shooting" (T. at 181-182).
The prosecutor then showed the jury a different camera angle and said it showed the defendant coming back from chasing Antonio Bruce (T. at 183).
In contrast to defense counsel asking the jury to infer that the shooting took place prior to the events depicted in the video, the prosecutor asked the jury to conclude that the shooting actually took place after the person got up and was pursued off camera by the defendant (T. at 183-184). This sequence would be much stronger evidence of an intentional shooting. The prosecutor also argued that the location of the gunshot wound in Antonio Bruce's torso, an area containing vital organs, also showed the defendant's intent to cause the death of Antonio Bruce (T. at 186).
In addition, the prosecutor argued that if there was a clip in the weapon, the presence of an unfired round found by the police on the sidewalk showed the defendant had "racked" the murder weapon to insure there was a round in the chamber, which belied the defendant's statement that he believed the gun was not loaded (T. 186-188).
Finally, the prosecutor, in summarizing how he proved the defendant's intent to kill, asked the jury "[to rely on] ARGUS camera surveillance video, which shows the defendant chasing Antonio Bruce" (T. at 188).
Deliberations
During its deliberations, the jury submitted a note requesting to see the video (T. at 233).
Immediately after the Court called for the jury to be brought to the courtroom to view the video, the defendant requested to speak (T. at 234). The defendant told the Court, "That is not the victim. He made his closing argument yesterday that the guy I'm chasing is the victim. The guy that in front of me is not the victim . . . I know who Antonio Bruce is, not the kid on the floor tumbling" (T. at 234).
The Court responded by telling the defense that, "If he's requesting to reopen the case and if he wants to testify, he can testify. I would consider that, but as far as doing anything about it, I can't do anything about it now" (T. at 234-235).
The Court then stated, "No one, to my recollection, during the trial actually identified the person falling as the victim" (T. at 235). The Court continued, "The attorneys during their summations referred to that individual as the victim, but no one actually identified the person falling. Maybe the prosecutor was planning on calling a civilian witness and having a civilian witness identify that person" (T. at 235). The prosecutor agreed with the Court's statement, asserting he was planning to have Amanda Lugo identify the falling person as the deceased. (As will be discussed below, Amanda Lugo would not have made this identification.) The Court also noted that the mother of the deceased, who had earlier testified at the trial only as to identifying her son's body, could have been asked to identify her son in the video (T. at 235).
The prosecutor stated he specifically identified Antonio Bruce as the falling person in the video because he believed it be true and defense counsel had just said so in his summation (T. at 236).
The Court noted that if the defendant chose to testify at this juncture, defense counsel's summation arguing that the shooting took place before the chase depicted in the video might conflict with whatever version of events the defendant would give in his testimony (T. at 237-238). (According to the defendant's testimony at the subsequent hearing on this motion, his shooting of Antonio Bruce took place after his chase of Martin Gustave.)
The Court additionally stated for the record that, " The summations were yesterday. The defendant didn't say anything about this yesterday. He didn't say anything about this, this morning. He didn't say anything about it until we got the note . . . " (T. at 239).
The defendant, after consulting with defense counsel, did not take the opportunity to testify (T. at 241).
The Hearing on the Motion
Prior to the testimony at the hearing, the People stipulated that the defendant's motion correctly identified the people depicted in the video (Hearing Transcript, hereinafter "H." at 2-3). Specifically, the video shows the defendant chasing an individual who is not the deceased but, rather, Martin Gustave (H. at 3). Martin Gustave is seen crossing a street from left to right, stumbling at the curb, then continuing off camera to the right (H. at 3). The two individuals with their backs to the camera walking side by side towards the bodega at the corner where Gustave fell are the victim, Antonio Bruce, on the left wearing a North Face jacket, and Julius Vining, to the right of Bruce (H. at 3). The defendant is the individual seen coming from the left behind Martin Gustave holding a gun before both the defendant and Gustave go to the right and out of the picture (H. at 4).
The defense called as witnesses the trial prosecutor, defendant's trial attorney, and the defendant. The People called no witnesses.
The Trial Prosecutor's Testimony
The prosecutor (who had left the District Attorney's Office and was now in private practice but for the sake of consistency will continue to be referred to as "the prosecutor" in this decision) testified that although a copy of the motion papers had been sent to him, "I did not have time to review it" (H. at 10). The prosecutor also acknowledged that he did not review the trial transcripts, or the District Attorney's case file which included police reports, witness statements, ballistics report, Grand Jury testimony and the Medical Examiner's report (H. at 10). The District Attorney's Office did not offer him an opportunity to look at the file. He did not ask to look at it, because he remembered the case pretty well, it being one of the last cases he tried before leaving the office (H. at 11-12).
The prosecutor acknowledged that the defendant was charged with intentionally causing the death of the deceased (H. at 13). He also acknowledged that it was the practice of the District Attorney's Office to word indictments where a murder charge is based on a theory of transferred intent to phrase the indictment so that the defendant is given notice that the actual victim and the intended victim are not alleged to be the same person
(H. at 14).
The prosecutor was questioned about several pieces of information in the District Attorney's file that the defendant contended were inconsistent with the prosecution's trial argument that the defendant chased and intentionally killed Antonio Bruce.
Defense counsel showed the prosecutor pages from the "Homicide Analysis Report" and specifically referred to a paragraph on the first page which stated that, "The victim was involved in several disputes with rival gang members and the victim later returned with other Blood members, one of which had a gun" (H. at 18). This information would suggest that the victim and the defendant were members of the same gang and would give reason to question the prosecutor's belief that the defendant chased the victim, a fellow Bloods member. The prosecutor stated he did not "recall reading that particular paragraph, but if it was in the file, I must have read it" (H. at 18). The prosecutor's attention was called to the next page showing that the "relationship between the victim and the defendant" box on the form was checked as "friends or acquaintances" (H. at 19). Again, the prosecutor said he did not "recall having read that, but again, if it was in the file, I'm sure I read it" (H. at 19).
The prosecutor acknowledged that the report indicated that the defendant was a Blood and that the paragraph stating that "the victim later returned with other Blood members" seemed to indicate the defendant and victim were members of the same gang (H. at 20-22).The prosecutor was asked about an Unusual Occurrence Report and Homicide Investigation Report which both indicated that the victim was standing on the corner when he was shot, as opposed to running (H. at 23-24). This description would be consistent with the defendant's statement of an accidental shooting and inconsistent with the defendant chasing the deceased. The prosecutor explained that he concluded the language stating the victim was standing on the corner was erroneous, because in the Grand Jury he "had testimony of Julius Vining and Amanda Lugo which stated the opposite" (H. at 25). He disregarded the Homicide Notification form because that form is "notoriously not detailed" (H. at 26) and "that a notification is often very, very simplistic" (H. at 28).
Defense counsel then read a portion of the Grand Jury Testimony of Julius Vining (who arrived at the scene with the deceased) where Vining said "one of the Crip dudes run in front of us. He fall" (sic.) (H. at 34). This testimony would have specifically put the prosecutor on notice that the person who fell was a Crip, meaning the person being chased in the video could not be the deceased who, like the defendant, was a Blood. The prosecutor responded that at the time of the Grand Jury, he had not seen the video and that he did not see the video until right before trial (H. at 34-36). (However, as will be discussed below, the prosecutor provided a Bill of Particulars 11 months prior to trial describing the events in the video.) The prosecutor said he "did not put two-and-two together on that" and that "Julius Vining was not cooperative . . . He was not a witness to be used at trial" (H. at 36).
Defense counsel then read from a transcribed interview of Amanda Lugo by an Assistant District Attorney wherein she said, "Martin [meaning Martin Gustave, the actual person being chased by the defendant in the video] leaped. He leaped like he fell and leaped away from him" (H. at 38). The prosecutor explained that he did not realize until this hearing that Amanda Lugo was referring to the person who fell on the video. He believed she meant she was "standing with some other guy and they kind of jump out of the way" (H. at 39). He personally did not see the video prior to the Grand Jury presentation which he personally handled (H. at 68). He further explained that he "didn't realize that Martin was the guy that stumbled into the scene at that time. I'm being told that now" (H. at 39). He thought "Martin" was one of the people shown in the video standing next to Amanda Lugo (H. at 69).
The prosecutor testified that the only time he spoke with Amanda Lugo about the case was at the Grand Jury. Although he subpoenaed her to testify at the trial and she appeared at the courthouse, she refused to testify (H. at 40-41). However, he had hoped she would be a witness at the trial so he included in his opening statement what he believed she would say (H. at 71).
The prosecutor explained that he did not prepare Amanda Lugo to testify prior to trial, because, like many witnesses to homicides in Brooklyn, she was afraid and reluctant to testify (H. at 43-44). He testified he did not call her as a witness at trial solely to protect her and not because she had previously given a statement that she saw "Martin" running (H. at 76).
The prosecutor testified that his theory of the case was that the video would prove the defendant's intent to kill the person who was shot even if he did not have an eyewitness available at trial (H. at 50). He did not show the video to Amanda Lugo or Julius Vining prior to trial, because, based on his experience in other cases, witnesses to homicides who know the parties involved are reluctant to cooperate. He planned on serving them with subpoenas just prior to when he needed them to testify at trial (H. at 51-52). He did not show the video to the deceased's mother out of concern for her feelings (H. at 54). Thus, none of the witnesses who could have corrected the prosecutor's mistaken belief about the deceased being chased in the video were given an opportunity to see it.
The prosecutor testified that he believed his case would have been stronger had he been aware that the person being chased was Martin Gustave, because, he would have requested the Court to be allowed to change the theory of the case to murder with transferred intent (i.e., "with intent to cause the death of Martin Gustave he caused the death of Antonio Bruce") (H. at 78-79). No explanation was given as to how in the absence of cooperating witnesses, he would have proved where Martin Gustave was in relation to the deceased when the fatal shot was fired, how much time passed between the chase and the fatal shot, or what the defendant was doing with the gun at the time the shot was fired.
The Defendant's Trial Counsel's Testimony
Defendant's trial counsel testified he reviewed the motion papers "very, very briefly" (H. at 94). He recalled the defendant had given a statement that he considered an "admission of involvement in an incident" and that the "gist of the statement" was that the shooting was an accident (H. at 95). Counsel agreed that the central issue in the case was the defendant's intent (H. at 96). When asked if he had a sense as to how the prosecution intended to prove that intent, he said, "I don't recall" (H. at 96).
Counsel did not have any recollection of the prosecutor's reply to his discovery motion regarding the video (H. at 97). (The Court file contains the People's Bill of Particulars prepared by the prosecutor, dated October 25, 2007, 11 months prior to the trial, which, in part, reads, "Furthermore, an ARGUS video surveillance camera on Flatbush Avenue between Parkside and Woodruff Avenue captures the shooting." If defense counsel had relied on this assertion, he would have believed the defendant was chasing the deceased, which turned out not to be true.)
Counsel also had no specific recollection of his summation (H. at 98). In that summation, counsel erroneously conceded the defendant had shot the deceased: "What you see in that video would be the unfortunate demise of that individual. You saw him after he was shot. You saw him running. You saw him collapsing. You saw him running. You saw him with the gun running the same way. That is what you saw" (H. at 99). He had no recollection why he would have said that or if there was anything in any document to support why he said that (H. at 100.) Apparently, counsel did not recollect the prosecutor's Bill of Particulars noted above.
Trial Counsel believed he discussed the strengths and weaknesses of the case with the defendant but had no specific recollection of what was said (H. at 126). He believed he viewed the surveillance video with the defendant in the courtroom in private (H. at 101). He did not recall having a conversation with the defendant about the video at that time (H. at 101; 128). (The Court's file and records do not reflect that the surveillance video was ever played in the courtroom prior to the trial, with or without the defendant present. Instead, the minutes of September 11, 2008 show that only the video of the defendant's statement was played as part of the evidence introduced at a Huntley hearing. The Court, at page 5, of the minutes of September 11, 2008 stated, "I don't need the surveillance tape for the hearing.") He also did not recall the defendant ever telling him prior to trial that the person running and falling in the video was not the deceased (H. at 133-134).
Counsel testified to having no recollection that the deceased had been a Blood, although he did recall knowing the defendant was a Blood, and the prosecutor had made an issue of the location being Crip territory (H. at 106-107).
Counsel did not recall what his strategy was in telling the jury that the defendant chased the deceased down the street with a gun and shot him (H. at 110). When he was asked why he conceded in his summation that the defendant was chasing the deceased, he responded, "I had my own impression when I looked at the video and I had no input from anywhere that my impression was incorrect" (H. at 114).
Trial counsel said he did not believe he spoke with any witnesses and did not recall the defendant giving him the names of anyone out in the street at the time (H. at 115). He also did not recall comparing the property voucher of the deceased's clothing with the individuals in the video (H. at 119). (If he had done so, he would perhaps have realized that the vouchered clothing of the deceased did not match the clothing of the person being chased in the video. In fact, the voucher described a "black and gray North Face jacket" which matched the color of a ski parka being worn by bystander to the chase who in actuality was the deceased.)
Trial counsel recalled that he became aware of the defendant's concerns about the video when the defendant alerted the Court during jury deliberations (H. at 135-136). He had no recollection of his conversation with the defendant after the Court offered the defendant an opportunity to reopen the case and testify (H. at 136-137).
Trial counsel had no particular recollection of asking the defendant at any time to tell his version of what happened and to explain how he could claim the shooting was accidental when the video according to defense counsel's belief showed him chasing the deceased (H. at 141-142).
The Defendant's Testimony
The defendant testified that trial counsel did not discuss his strategy with him or show him the surveillance video, and that the first time he saw the video was at trial (H. at 226). When he saw the video he "leaned over and told [his] attorney everybody who was in the video, where everybody was" (H. at 244).
The defendant stated he did not comprehend trial counsel's opening statement and did not realize his own attorney was implying he had chased the deceased (H. at 227; 247). Even after defense counsel specifically said so in summation, he did not appreciate his attorney's error (H. at 227). He realized the error during the prosecutor's summation, when the prosecutor described the defendant as chasing Antonio Bruce down (H. at 228). He leaned over and told his attorney, "the guy being chased in the video is not Antonio Bruce" (H. at 228). He's "not the guy that they are saying I killed" (H. at 244). His attorney responded that the attorney could not interrupt the summation (H. at 228).
The defendant further testified that the shooting happened at some point shortly after what was shown in the video off to the right (H. at 262-263).
The defendant testified he had given his attorney the names of two witnesses to contact (H. at 229). He had given his attorney the names of witnesses, because the victim had been his friend and the shooting had been an accident. His attorney never contacted any of those people to confirm that he was friends with the deceased (H. at 266-268).
The defendant testified that he had pled guilty to an Attempted Robbery in 2006 wherein it was alleged he displayed a handgun but that he, in fact, had not done what he admitted to (H. at 231). He admitted that he had pled guilty and lied to the Court because it benefitted him (H. at 231-232).
Prosecutorial Misrepresentations
Without doubt, the prosecutor misrepresented to the jury the identity of the person being chased in the video as the deceased. Consistent with this mistake, 11 months prior to trial, the prosecutor served a Bill of Particulars, asserting a video surveillance camera "captures the shooting" when, in fact, it did not. At the hearing on this motion, the prosecutor testified he did not see the video until "just before trial." Either the prosecutor prepared the Bill of Particulars describing the video without personally viewing it, or his hearing testimony that he did not view the video until just before trial was incorrect.
The defendant has noted several documents in the People's case file that, at least with the benefit of hindsight, should have alerted the prosecutor that the person being chased by the defendant was not the deceased. The defendant claims these documents support a finding that the prosecutor knowingly misrepresented who was being chased. These items included: (1) the District Attorney's Office own "Homicide Analysis Report" which stated that the victim was a Bloods gang member who was at the scene with another Bloods gang member who had a gun — which would make it anomalous for one member of the Bloods, i.e. the defendant, to intentionally shoot a fellow gang member, particularly when the prosecutor was aware that the original confrontation involved the defendant and the Crips; (2) the same report reflected that the defendant and the victim were "friends or acquaintances"; (3) two separate reports in the file stated the deceased was standing on the corner when he was shot and made no mention of a chase; (4) the clothing listed in the voucher as being worn by the deceased did not match the clothing of the person being chased in the video and, instead, appears to match the clothing of a bystander depicted in the video who, in fact, is the deceased.
At the hearing, the prosecutor attempted to explain that he, nevertheless, despite the above pieces of information in his file, believed the defendant had chased the deceased based on the Grand Jury testimony of Julius Vining and Amanda Lugo. He testified that the only time he spoke with these witnesses about the case was when they testified in the Grand Jury and that neither witness was shown the surveillance video.
At the hearing, it was pointed out that Julius Vining had testified in the Grand Jury that the defendant was chasing a Crip who fell — not a Blood — which would have excluded the deceased as the person Vining saw being chased.
To further undermine the prosecutor's assertion at the hearing that his view of the case was based on Vining's and Lugo's prior testimony, it was established at the hearing that Amanda Lugo had given a statement to the District Attorney's Office that "Martin" was the name of the person who fell and "leaped away" from the defendant. The prosecutor testified that he did not grasp the significance of this statement and believed "Martin" was not the person being chased.
The Court has examined the Grand Jury testimony of Vining and Lugo, which was presented to the Grand Jury by the trial prosecutor. In fact, their testimony does not support the prosecutor's asserted belief that the defendant chased the deceased. If the prosecutor is to be found to have knowingly misstated who was being chased in the video, Julius Vining's testimony could be characterized as the "smoking gun" that proves what the prosecutor knew.
When Julius Vining testified in the Grand Jury, he was permitted to use the nicknames of the people he saw involved in the incident without stating the true names of these people. A police detective, without any evidentiary foundation established as to the basis of his information, was permitted to give the purported true names associated with Vining's nicknames. Because the Grand Jury heard Vining use only nicknames, they, and perhaps the prosecutor as well, may not have appreciated the significance of Vining's testimony. This testimony should have alerted the prosecutor to inquire why the defendant would be chasing a member of his own gang.
According to Vining's testimony (using the true names later supplied by the detective), on the night of the incident Vining received a telephone call from the defendant. The deceased, a good friend of Vining's (and a fellow Bloods member) was holding Vining's telephone at the time and spoke with the defendant. The defendant on the telephone had asked Vining and the deceased to meet him at Ocean and Winthrop. Upon their arrival, the defendant was not there. Vining and the deceased received another call from the defendant asking them to meet him at Ocean and Parkside. The detective also testified that Vining, the defendant, and the deceased were all members of the Bloods gang.
When Vining and the deceased arrived in a cab, they saw the defendant with his gun out in the middle of the street and "five Crip dudes" nearby.
As Vining and the deceased walked across the street to meet a friend of the defendant's named Duane Smith (who, according to the prosecutor's testimony at the hearing was later himself shot and killed), "one of the Crip dudes seen in front of us, he fall. When he falls a shot go off. The shot go off it was [the defendant] shooting [Antonio Bruce, the deceased]."
Thus, Vining did not testify in the Grand Jury that the defendant chased and shot the deceased after he fell. Rather, according to Vining, it was a Crip who fell. In fact, the defendant according to Vining had no reason at all to want to shoot the deceased, a fellow Bloods member who had come to the scene in response to the defendant's telephone call in order to support the defendant. Nevertheless, the prosecutor argued at trial that not only did the defendant chase and shoot the deceased, but also that the defendant intended to kill him.
Amanda Lugo's Grand Jury testimony also provides no support for the prosecutor's erroneous claim that the defendant shot the person he was chasing. Lugo testified that she was at the scene selling candy to raise funds for a church to which the mother of her "home boy" Martin belonged. Martin was with her at the time. She saw "someone" [the defendant] running towards her holding a gun. Two men met up with the defendant. One of those men was Duane Smith. The other man was then shot. They were all close together. Duane Smith screamed, "You shot the wrong nigger."
If the prosecutor actually believed at the time of trial that the defendant chased and then intentionally shot and killed Antonio Bruce, he not only did not appreciate the significance of the contrary information in his file, he likewise did not understand the Grand Jury testimony he, himself, had elicited. This testimony was to the effect that the defendant, rather than chasing and then intentionally shooting the deceased, had shot a fellow Bloods member who had come to the scene with Vining in response to the defendant's telephone calls.
If the prosecutor's misrepresentation of the facts at trial were not intentional, they may be fairly characterized as grossly negligent in that he failed to understand the significance of the contrary Grand Jury testimony he, himself, elicited. His failure to show the video to Vining and Lugo or to view it himself prior to the Grand Jury presentation may have been the result of the circumstances of this particular case, but such pre-trial viewings by the witnesses, or at least a discussion of the video with them, certainly would have prevented the fiasco of a trial that took place here.
In People v Cotton, 242 AD2d 638, 639, (2d Dept. 1997), the defendant's conviction for manslaughter was reversed in the interest of justice due to the prosecutor's "blatant misrepresentation of the facts as known to the prosecutor." The misrepresentation concerned the operability of a firearm possessed by the deceased which the prosecutor asserted in his summation was operable despite his knowledge of a ballistics report showing it was, in fact, inoperable. The conviction was reversed even though defense counsel was also in possession of this same ballistics report but made no objection to the prosecutor's comments. Those comments had the effect of refuting the defendant's claim that he shot the deceased in self-defense after the deceased first pointed a gun at him. See People v Cotton, Respondent's Appellate Brief at 39-40, 1997 WL 34646275.
Cotton demonstrates that where the prosecution knowingly misrepresents critical facts in summation, even without objection by the defense, there may be a reversal in the interests
of justice, notwithstanding the fact that the defense should have been aware that the prosecution was misrepresenting the facts. See also, People v Spann ,82 AD3d 1013, 1015-1016 (2d Dept. 2011) (prosecution repeatedly misstated the evidence concerning where a gun was recovered); People v Cobb, 104 AD2d 656, 657-658 (2d Dept. 1984) (prosecutor misstated certain evidence). These cases also refute the People's argument in their post-hearing papers that prosecutorial misstatements of the evidence in summation may be disregarded as long as a jury is told in the Court's charge that summations are not evidence.Pursuant to CPL 440.10 (1) (b), the defendant contends in his post-hearing papers that the prosecutor's repeated misrepresentations in his summation concerning the video requires the judgment to be vacated, even if the prosecutor believed his assertions to be true, because unlike CPL 440.10 (1) (c), CPL 440.10 (1) (b) does not require the prosecutor to knowingly adduce false evidence.
Nevertheless, the People argue that CPL 440.10 (1) (b) requires the prosecutorial misrepresentation to be "blatant and egregious." e.g. People v Novoa, 70 NY2d 490 (1987); People v Daly ,57 AD3d 914 (2d Dept. 2008). See also, People v Thomas , 53 AD3d 864 (3d Dept. 2008). In reliance on these cases, the People assert the absence of sufficient proof that the prosecutor knowingly and intentionally misrepresented who was being chased by the defendant, noting that it was defense counsel in his summation who was the first one to explicitly say this.
Although the People in their post-hearing papers attempt to explain how the prosecutor could have innocently misinterpreted Amanda Lugo's prior statements, the People fail to discuss the Grand Jury testimony of Julius Vining, who the prosecutor asserted at the hearing was also a source of his belief that the defendant chased the deceased. Vining's Grand Jury testimony, as noted above, described the defendant chasing a Crip, not the deceased, who had spoken with the defendant on the telephone earlier that evening.
Despite the language in the reported cases seeming to require some level of knowing misrepresentation of facts, there may be some level of prosecutorial negligence that would satisfy the requirements of CPL 440.10 (1) (b) and protect a defendant from a prosecutor who fails to conform to a reasonable standard of competence. Indeed, if not protected by CPL 440. 10 (1) (b), then CPL 440.10 (1) (h) would, nevertheless, under federal and state constitutional due process provisions, protect a defendant from negligent misrepresentations of an incompetent prosecutor. Otherwise, prejudicial misrepresentations made by an incompetent but "pure-hearted" prosecutor would escape review so long as the misrepresentation was not intentional. See, e.g. United States v Agurs, 427 U.S. 97, 103 (1976); United States v Stewart, 433 F3d 273, 299 (2d Cir. 2006) discussing hypothetical situations where if the prosecution knew or should have known that its witnesses were committing perjury, there could be sufficient corruption of the truth-seeking process that could affect a defendant's right to a fair trial.
The subject of prosecutorial misconduct cannot be concluded without discussing the People's post-hearing argument that the misrepresentation in summation was akin to an "isolated misstatement" and of little consequence to the murder conviction. To the contrary, the prosecutor's assertion that defendant was chasing the deceased was central to his argument that the defendant not only had an intent to kill the person he was chasing, but also that the shooting, contrary to the defendant's statement, was not an accident. If the jury knew that the defendant, in fact, was not chasing the deceased, then there would have been no evidence whatsoever to explain how the deceased was shot other than the defendant's statement that the shooting was accidental. Further, if the shooting was unconnected to the chase in the video, there would have been no evidence as to when the deceased was shot or what the defendant was doing with the gun at the time of the shooting.
There is no evidence that the defendant was intentionally pointing the gun at anyone at the time of the shooting. Thus, the prosecutor's summation argument that the location of the wound demonstrates the defendant's intent to kill carries no weight whatsoever once it is known that the defendant never intended to shoot the deceased in the torso or any other part of his body. Without question, the misstatements by both defense counsel and the prosecutor were the sine qua non of the murder conviction and cannot be fairly characterized as an "isolated misstatement."
In this case, however, there is no need for this Court to determine if the prosecution's misrepresentation requires vacature of the judgment. That is because the judgment convicting the defendant of murder in the second degree, as will be discussed below, must be vacated on the ground that the defendant received ineffective assistance of counsel. Further, as will also be discussed below, the weapons conviction was not affected by the shortcomings of either the prosecution or the defense.
Ineffective Assistance of Counsel
The defendant also seeks to vacate the judgment pursuant to CPL 440.10 (1) (h) in that he did not receive effective assistance of counsel as required under the Federal and State Constitutions.
As recently stated by the Second Department in reversing a murder conviction in People v Gavalo ,87 AD3d 1014 (2d Dept. 2011), wherein it was found that defense counsel intentionally elicited unduly prejudicial testimony that otherwise would not have been admissible:
"A defendant in a criminal case has a constitutional right to the effective assistance of counsel" ( People v Larkins , 10 AD3d 694, 694 [2004]; see U.S. Const. Sixth Amend.; NY Const., art. I, § 6). "However, what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case" ( People v Rivera, 71 NY2d 705, 708 [1988]). Under the New York Constitution, "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" ( People v Baldi, 54 NY2d 137, 147 [1981]; see People v Benevento, 91 NY2d 708, 712 [1988]). "While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" ( People v Benevento, 91 NY2d at 714). Thus, "[i]solated errors in counsel's representation generally will not rise to the level of ineffectiveness, unless the error is so serious that defendant did not receive a fair trial' " ( People v Henry, 95 NY2d 563, 565-566 [2000], quoting People v Flores, 84 NY2d 184, 188-189 [1994]).
See also, People v Miller , 87 AD3d 1075 (2d Dept. 2011) (rape conviction reversed for defense counsel's failure to object to unduly prejudicial testimony).
Pursuant to federal constitutional standards set forth in Strickland v Washington, 466 US 668 (1984), a finding of ineffective assistance of counsel requires deficient performance which deprives a defendant of a fair trial to the extent that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland at 694. In this case, defense counsel's deficient performance resulted in the jury being misinformed about who was being chased in the video. In the absence of this misinformation, it is reasonably probable that the defendant would not have been convicted of intentionally killing anyone.
In this case, the defendant received ineffective assistance of counsel under both the federal and state standards.
As exemplified by People v Gavalo, supra and People v Miller, supra, a single error by defense counsel may be sufficiently prejudicial to deprive the defendant of "meaningful representation." See, e.g. People v Cantave , 83 AD3d 857 (2d Dept. 2011) (failure to cross-examine concerning prior inconsistent statements); People v Alford , 33 AD3d 1014 (2d Dept. 2006) (defense counsel failed to move to redact a laboratory report showing defendant's DNA was also recovered from a different victim in a similar crime of which the defendant had been convicted).
In this case, defense counsel erroneously conceded in summation, without any basis in the proof and without any tactical reason to do so, that the defendant was chasing the deceased in the video. It is understandable that defense counsel may have been misled into saying this by the People's incorrect assertion in their Bill of Particulars that the surveillance video "captures the shooting." It is noteworthy that defense counsel could not recall at the hearing why he believed the video showed the deceased being chased. This belief may very well have been based not only on the People's Bill of Particulars, but possibly also on pre-trial discussions of the case with the prosecutor who, himself not recognizing all the evidence to the contrary in his own file, may also have had the same incorrect belief about the sequence of events.
There were additional professional failures by defense counsel that contributed to the defendant's murder conviction. It appears from the testimony at the hearing and the Court's records of the case, that defense counsel never gave the defendant an opportunity prior to trial to view the surveillance video, the key piece of evidence in the case. This may have been due to the fact that the defendant was incarcerated and a special computer program was necessary to play the video, but, nevertheless, defense counsel should have realized that the defendant needed to see the video in order to explain how the defendant could claim the shooting was accidental.
Even more egregious, it appears that defense counsel never discussed the contents of the video with the defendant prior to trial. Indeed, counsel's lack of memory at the hearing of ever doing so is most revealing. Although defense counsel's many years of trial experience may explain his not remembering details of his particular cases, there certainly could not be many other cases like this one where a client made a statement during jury deliberations that his attorney's summation got the facts all wrong and misstated crucial evidence to the detriment of the defense. Had defense counsel actually discussed the video with the defendant prior to trial, his memory of that discussion certainly would have been triggered at the time of the defendant's public complaint about his misinterpretation of the video. The memory of this discussion, if it ever took place, would have been something defense counsel, for his own self-interest at that point, would not forget. This conversation would constitute proof in his own mind that he did not fail in his professional duty to adequately prepare the case for trial and investigate possible defenses. However, defense counsel had no memory of such a discussion, because such a discussion never took place.
Defense counsel knew the gist of the defendant's statements that the shooting was accidental. Defense counsel made his own attempt at trial to reconcile this claim of accident with the video evidence showing the defendant chasing someone. He argued both in his opening statement and in summation that the shooting took place prior to the events in the video. However, this version was supported by no evidence and, was, in fact, untrue.
If the defendant had been prepared by counsel to exercise his right to testify at the trial, the defendant without doubt would have had to account to defense counsel for his actions in the video which apparently belied his claim of accident if he was, in fact, chasing the deceased. Had defense counsel had this conversation with the defendant, defense counsel certainly would have learned (1) that the defendant was not chasing the deceased in the video, (2) that the defendant and the deceased were both members of the Bloods, and (3) that the video showed the defendant chasing someone else, all of which would be inconsistent with an intent to kill the deceased. This information at least could have been brought to the prosecutor's attention and maybe, just maybe, the prosecutor would have learned the contents of his own file, and the case would have been tried as a transferred intent case. At such a trial, the People would have had to call eyewitnesses to the shooting who were not called at this trial.
Therefore, defense counsel's unjustified and erroneous concession in summation prejudiced the defendant (and allowed the prosecutor to jump on this concession in his subsequent summation). Further, defense counsel's failure to closely question the defendant prior to trial about the facts of the case and discuss the details of the video with him, if not also actually review the video with him, prevented defense counsel from learning who the defendant was really chasing and making an informed decision about how to defend the case. Finally, when the defendant during jury deliberations was given an opportunity to reopen the case and testify, it was under the circumstances, too late to take advantage of this opportunity. Defense counsel had already told the jury in his opening and in his summation a version of the events that was untrue, and the circumstances did not allow defense counsel the time needed to adequately prepare the defendant to testify.
The People argue in their post-hearing papers that the defendant, nevertheless, received meaningful representation and that counsel's failures were harmless, because (1) if there had been a competent prosecutor who was aware of the evidence in his own file, (2) such a prosecutor at some point in time would have requested a jury charge on transferred intent, meaning that the defendant could have been convicted of murder if the defendant acted with the intent to cause the death of anyone and thereby caused the death of the deceased, and (3) the jury, beyond a reasonable doubt, would have found the defendant so acted despite the defendant's statement that the shooting was an accident, and (4) despite the absence of any evidence showing when the deceased was shot or what the defendant was doing at the time of the shooting.
The People attempt to inject into their "could'a-would'a-should'a" argument, the defendant's testimony at the hearing that he shot the deceased at some point after the events shown in the video. The People apparently recognize that at the trial there was no temporal connection made between what the defendant was seen doing in the video and the shooting. Indeed, at trial, defense counsel argued that the shooting took place sometime before the video. In contrast, the prosecutor argued in summation that it took place after (although during his opening statement the prosecutor told the jury the gun was fired at some point during the video).
The hearing testimony given after the trial as to when the defendant fired the shot was not part of the trial record and cannot be used to now argue what the trial jury would have decided if they had heard it.
Such an argument is not "harmless error" analysis of the existing trial record, but, rather, a creation of a fictional parallel universe. "Trial error is harmless when there is overwhelming proof of the defendant's guilt and no significant probability that the jury would have acquitted the defendant were it not for the error." People v Santiago, NY3d, 2011 WL4972074 (October 20, 2011), citing People v Crimmins, 36 NY2d 230, 242 (1975). Just as the jury never heard the testimony of Julius Vining and the other evidence in the prosecutor's own file that supports the defendant's statement that the shooting was accidental, the People cannot now support a murder conviction based on a hypothetical trial that never took place employing factual arguments that the defendant has no opportunity to refute before a jury.
The People's argument concerning a hypothetical trial is not analogous to determinations concerning "newly discovered evidence." It is appropriate to make projections whether "newly discovered evidence" creates a probability of a verdict more favorable to a convicted defendant where the evidence even with due diligence, could not have been produced at the trial. CPL 330.30 (3) and 440.10 (1) (g). However, before making such determinations, there must first be a finding that the defendant received a fair trial to begin with. In this case, the defendant did not receive a fair trial on the murder charge as a result of the prejudicial consequences of his attorney's mistaken belief that the defendant was chasing the deceased in the video. If the People's argument concerning a hypothetical trial is accepted, it would turn upside down the principles of CPL 330.30 (3) and 440.10 (1) (h) and result, not in a new trial as those statutes allow, but rather, in the defendant being convicted of murder without ever receiving a fair trial based on "newly discovered evidence" that will never be heard by a jury and which, with minimal diligence, could have been presented at the trial.
The Weapons Possession Conviction
This Court agrees with the People's argument that the deficiencies in the performance of the prosecutor and defense counsel had no effect on the defendant's conviction for Criminal Possession of a Weapon. The defendant in his own statements admitted to possessing the weapon and firing it. His claim in his statement that he did not know the gun was loaded is of no legal significance, because the elements of that crime (P.L. 265.03) do not require knowledge that the firearm is loaded. People v Melendez , 71 AD3d 1166 (2d Dept 2010). Neither do the elements of that crime, as asserted in the defendant's reply papers, require an intent to use the firearm unlawfully against another person. Apparently, the defense recalls the statutory scheme prior to the 2006 legislative amendments to P.L. 265.02 and 265.03, effective November 1, 2006 (L. 2006, ch. 742).
Therefore, the prejudicial effects of the misimpression given to the jury that the defendant chased the deceased before shooting him had no impact whatsoever on the jury's verdict convicting the defendant of Criminal Possession of a Weapon. In the absence of prejudice to the defendant, vacating the judgment of conviction on that charge is not appropriate. People v Concepcion ,17 NY3d 192, 197 (2011) (no reasonable possibility that there was a "spillover" effect from admission into evidence of drugs that should have been suppressed tainting an assault and weapons possession conviction even though the drug possession conviction was tainted); People v Daly , 14 NY3d 848 (2010) ( Rosario and Brady violations tainted convictions relating to one robbery but not the other robbery); People v Baghai-Kermani, 84 NY2d 525, 532-533 (1994) (finding only two of ten counts were tainted by Rosario violation, the Court stated: "Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error, and its potential for prejudicial impact on the overall outcome"); People v Bournes ,60 AD3d 687 (2d Dept. 2009); People v Fredericks ,48 AD3d 827 (2d Dept. 2008).
Accordingly, the motion to vacate the judgment convicting the defendant of Murder in the Second Degree is granted and the motion to vacate the judgment convicting the defendant of Criminal Possession of a Weapon in the Second Degree is denied.
SO ORDERED
You are advised that your right to an appeal from the order determining your motion is not automatic except in the single instance where the motion was made under CPL § 440.30(1-a) for forensic DNA testing of evidence. For all other motions under Article 440, you must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after your being served by the District Attorney or the court with the court order denying your motion.
The application must contain your name and address, indictment number, the questions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, you must serve a copy of your application on the District Attorney.