Opinion
7063/01.
Decided March 14, 2006.
The defendant moves to set aside the verdict pursuant to CPL 330.30 (1) and (2).
The defendant was convicted after jury trial of murder in the second degree and other crimes. The People's theory at trial was that defendant, a member of the Bloods gang, shot Nazon Powell, a member of a rival gang. Defendant now moves to set aside the verdict on five different grounds. Three of these pertain to my rulings during the course of the trial, one to alleged instances of prosecutorial misconduct, and the fifth to two alleged instances of juror misconduct. I first address defendant's complaints regarding my rulings.
Defendant argues that I prejudiced him by improperly responding to a note from the jury which asked me "to explain cooperation agreements, the procedures around them and documentation and disclosure issues around that." That note also requested a read-back of "all testimony related to cooperation agreements or lack thereof" as well as the direct testimony of two prosecution witnesses. The witnesses were assistant district attorneys who had prosecuted cases against Donald Bethea and Rasheem Smalls, who also testified for the People.
The parties raised the subject of cooperation repeatedly during the trial. The prosecution initially intended to call Dale Joe, who, they claimed, was not an eye-witness to the crime but who would testify as to the events leading up to and following it. Joe had a pending drug case in New York County and had entered into a cooperation agreement on that case. During voir dire the People told the jury panel that one of their witnesses had executed such an agreement. They also stated that several of their witnesses had criminal records. In their opening the People informed the jury that although they would be calling several witnesses who had criminal records, contrary to what they had said during jury selection, they would not be calling any witness who had executed a cooperation agreement.
The defense was already aware of the existence of Mr. Joe and that he had executed a cooperation agreement.
Although the defendant did not mention the term "cooperation agreement" in his opening, he argued that Donald Bethea and Rasheem Smalls were untrustworthy because, he implied, they were "compromised", i.e., they were attempting to curry favor with prosecutors by testifying. Bethea, defendant informed the jury, had been serving a probationary term while defendant's murder prosecution had been pending and had been arrested for gun possession. The gun case was dismissed and Bethea had not been forced to go to jail for violating his probation. Smalls had pled guilty to two crimes and was serving a sentence of from one-to-three years in State prison. The defendant stated that "[Smalls] wants his parole date. He wants his freedom."
As it was clear that one of the thrusts of the defense was that some of the People's witnesses had made secret agreements to testify in return for favorable treatment or future consideration, the People asked each witness who had a criminal record whether he was testifying under a cooperation agreement or in return for a benefit. They also called one former and one current member of the District Attorney's office. The assistant district attorney who had prosecuted Bethea and Smalls on the gun case explained that the case against Bethea had been dismissed for lack of evidence and that Smalls had been offered a misdemeanor. She testified that she was never aware that either defendant was a potential witness in a homicide case. The assistant district attorney who had offered Bethea an adjournment in contemplation of dismissal on a charge of attempted assault stated that he was unaware that Bethea was a witness in a homicide case. He explained that Bethea had been offered a favorable disposition because the complaining witness had not suffered any visible injuries and had not provided contact information.
The defense cross-examined both Smalls and Bethea as to their criminal records and the circumstances of their testimony in the instant case. In summation defendant argued, inter alia, that Bethea and Smalls had no choice but to testify for the prosecution, and implied (but did not explicitly state) that they must have had tacit or secret agreements to testify in return for consideration in their cases. In their summation the People responded to this argument as follows:
Now, finally, there is an air of a secret cooperation agreement in this case. First of all, there is no secret cooperation agreement. There is no cooperation agreement at all. We told you during jury selection that you may hear from a witness who will testify under a cooperation agreement, someone who has an undischarged sentence that they are trying to work off, someone who has information on this case.
The witness never came forward; you never heard from that witness. But that didn't stop the defense. They now have an idea, well, let's make it seem that there is this secret cooperation agreement here, something that is under the table that the District Attorney's Office is employing with one of the witnesses in this case. They don't even tell you which one they think it is. It could be any of them. If you think the Manhattan District Attorney's Office is engaged in a secret cooperation agreement in this case, then acquit this defendant right now. Walk him out the door. There is no cooperation agreement.
If a witness had testified under that agreement, under a cooperation agreement, we would have made that information available to you. . . .
The People then reviewed the testimony of the two assistant district attorneys who had testified and belittled the possibility that either Bethea or Smalls had been given favorable treatment pursuant to a secret cooperation agreement.
In response to the jury's note I defined a cooperation agreement as "an agreement between the prosecution and a person that the person will cooperate or aid the prosecution in return for some benefit." I instructed the jury that if a formal cooperation agreement exists, the People must disclose that fact and provide the defense with the text of the agreement. I stated that, although there had been some discussion during voir dire of a witness who had executed a cooperation agreement with the District Attorney's Office, "there was no evidence that any witness . . . testified under a formal cooperation agreement."
This instruction was responsive to the jury's question and factually correct. Contrary to defendant's argument it neither invade the province of the jury nor adopted a position that was in dispute at trial. The defense never argued that a formal agreement was ever executed by any witness who testified in the case. They argued, rather, that the People's witnesses were untrustworthy because they had a tacit understanding or secret agreement with prosecutors to testify in return for some benefit. My instruction that there was no evidence of a formal cooperation agreement did not preclude the possibility that a witness might have had such a tacit understanding, or entered into a secret agreement with the police or prosecutors. The jury necessarily understood this distinction, as the People discussed the possibility that one or more of their witnesses had entered into such a clandestine agreement at length, and the defense repeatedly insinuated that they had done so in fact. Both repeatedly stated that there was no evidence of a formal agreement. I never stated, as defendant contends, that there was no evidence of a cooperation agreement. Moreover, my response did not foreclose the argument that, even if none of the parties had entered into an informal or secret agreement, a witness might not independently be attempting to incur the favor of the prosecution by testifying in the instant case, or that he or she may not have been biased or had a motive to fabricate. My response therefore did not undercut any of defendant's arguments.
The defendant argues that I should have included a discussion of secret cooperation agreements in my explanation. The jury's note cannot be interpreted to mean that it was seeking guidance in this area, as there are, of course, no "procedures" promulgated concerning clandestine agreements nor are such agreements "disclosed." Additionally, informal, tacit agreements are, by definition, not accompanied by "documentation" proving their existence. If the jury was, was in fact, seeking such guidance, it is difficult to discern what a meaningful instruction I could have provided them. Contrary to defendant's position, the note can not be interpreted to mean that the jury was seeking a broader instruction concerning the credibility of witnesses or the possibility that a witness may have testified because of "motive, bias" or in an attempt to "curry favor." The note requested instruction concerning cooperation agreements, not the credibility of witnesses.
The defendant now suggests that I might have told the jury that "it must use in common sense to determine whether an informal cooperation agreement existed." I do not believe that the failure to give such an instruction would require a reversal of the judgment as a matter of law (CPL 330.30[1]).
Defendant complains that my direction to include testimony concerning the criminal histories of the People's witnesses was inconsistent with my instruction to the jury. Those portions of the testimony were read back to the jury at defendant's express request. In sum, I find no merit to defendant's arguments regarding my response to the jury in this area.
Defendant next contends that the verdict must be set aside because I permitted one of the prosecution witnesses, who testified under the pseudonym "Steve Rogers," to wear a disguise on the witness stand. The disguise consisted of a an "Afro" wig and false beard and mustache. Defendant makes two distinct arguments as to the disguise. He argues that he was prejudiced because the disguise created the impression that the witness had reason to fear him and that, were Mr. Rogers to testify without the disguise, the court would be powerless to protect him. In addition he argues that the disguise limited his right to confront the witness.
Judge John Bradley held a Hinton hearing in regard to this witness in July 2002. He ruled that the courtroom would be closed, with minor exception, while the witness testified and that he would be permitted to testify under a false name. The ruling came at the close of a hearing in which the People established that Steven Tucker, another eyewitness to the murder of Nazon Powell, had been murdered after informing Powell's father that the defendant had shot his son. The suspect in that case was Dwayne Mitchell, an associate of the defendant and a member of the same gang. The People also established that Rogers lived in the same neighborhood as the defendant, was aware of the murder of Tucker, and was afraid to testify against the defendant. In seeking a modification of Judge Bradley's order to permit Rogers to testify in disguise, the People relied upon these facts as well as other developments that occurred in the three years since Judge Bradley's ruling. The information, some of which was first brought to my attention during a pre-trial application by the People, included the fact that defendant had recently been indicted for slashing five inmates with whom he had been jailed, as well as a criminal history which included other violent crimes.
In addition to these facts the People alleged other information which reinforced the conclusion that defendant had no qualms about using violence to gain his ends. They adduced facts tending to show that he had made attempts to locate and tamper with several of their witnesses, as well as another witness whom the defendant wrongly believed was cooperating with the prosecution. The People also stated that Rogers often came to the block frequented by the defendant in order to visit a close relative. He had informed the People that he had seen the defendant "millions of times" and had frequently asked him and his associates to get off of his car. In view of this last piece of information it was reasonable to believe that, were they to see his face, the defendant and his confederates would easily be able to identify the witness as the person they often encountered on the block. As I was convinced that the People had established that there was a bona fide danger to the witness, I granted the People's request to permit him to testify wearing a wig, false mustache and beard. I informed the defendant that I would give the jury any instruction he chose, but he never suggested one.
The People earlier applied to elicit some of these facts during their direct case at trial but I denied their request. My ruling was not an indication that I considered the People's allegations to be unfounded.
During their deliberation the jury sent out a note asking "Are disguises determined by Court or witnesses? What is Court procedure/policy?" I told the parties that I would instruct the jury, in substance, that it was the witness's prerogative to come to court as he or she chose and that the court had no policy about disguises. The defense did not object to the proposed instruction. When the People proposed that I tell the jury that if they felt that he was in disguise, they should disregard that fact, the defense asked that there be no discussion of the matter. They asked, rather, that I neither confirm nor deny that Rogers wore a disguise. I ultimately instructed the jury in manner I had indicated and, as the defense requested, did not tell them that they should disregard the disguise in their deliberations.
Defendant's objection that he was denied his right to confront the witness because of the beard, mustache and wig are meritless, as these items did not interfere with his ability to cross-examine Rogers in any respect. Not only was the defendant fully able to question the witness, but the hair did not obscure his face in such a fashion that it interfered with the ability to see Rogers's facial expressions or assess his demeanor. Moreover, had Rogers grown a full beard and mustache in the three years that elapsed since the Hinton hearing, defendant would not be able to complain that the added facial hair prevented him from confronting the witness. The result should not be any different here merely because the hair was not Rogers's own. I find that the facial hair did not interfere with defendant's Sixth Amendment rights ( see People v. Morales, 246 AD2d 302; Morales v. Artuz, 281 F3d 55 [2d Cir. 2002]; and see Okonkwo v. Lacy, 104 F3d 21, 26 [2d Cir. 1997]).
Defendant's claim that the disguise created the impression that he was dangerous is based on his contention that the facial hair worn by the witness was conspicuously false. It was, however, impossible to know in advance whether the jury would be able to perceive that the hair was not the witness's own. Indeed, I expressed the opinion during the trial that it was unclear whether the jury would be able to discern that the witness was attempting to disguise his appearance. In addition, an overriding interest in enabling the eye-witness to testify without fear of retribution justified use of the disguise ( see People v. Frost, 100 NY2d 129). I reject the argument that the disguise created the impression to the jury that I believed that the defendant posed a danger to the witness. As I told the jury that the court had no policy about the wearing of disguises and that a witness had the prerogative to come to court dressed as he chose, the jury could not have believed that I sanctioned the disguise because I was of the opinion that the defendant posed a danger to Rogers. The instruction also permitted the inference, which was argued by the defense upon summation, that the witness was merely an "odd duck." Moreover, to the extent that the jury may have believed that the witness wore the facial hair out of fear, the disguise did not create undue prejudice. The jury would likely expect that a civilian eye-witness to a gang-related murder would have trepidations about testifying against one whom he was identifying as the murderer, whether or not he chose to wear a disguise. Defendant also argues that the jury could only have believed that the reason Rogers was afraid of him was that he was, in fact, guilty of the murder. Defendant did not ask that the that the jury be instructed not to draw an inference against the defendant from the witness's use of a disguise. To the contrary, they were specifically offered the option of such an instruction several times, but asked only that I neither confirm nor deny that the witness wore a disguise and that I not say that he had a "right" to wear a disguise. They did not ask for a limiting instruction at any time.
Defendant contends that I should have held a hearing to determine why the witness wished to testify in disguise and suggests several possible motives for his reluctance to appear without one. He argues that, in the absence of testimony from the witness establishing that he was indeed fearful of retribution, my finding that he was motivated by fear was based on speculation. I disagree. The witness's fear was transmitted both by Detective Hall, at the Hinton hearing held before Judge Bradley, and by the assistant district attorney during his application at trial. The People also established that the witness's fear was warranted, as they adduced testimony or alleged specific instances of witness tampering, including the murder of another witness to the crime. These facts provided good reason to believe that these events were linked to the defendant or his associates. Furthermore, at neither the hearing nor at trial did the defense suggest that the witness should be required to convey his fears firsthand. At no time during the trial did the defense request a mistrial on this ground. Accordingly, defendant's application, insofar as it is based on this ground, is denied.
Defendant next contends that he is entitled to mistrial because I did not have the authority to correct a transcription error in the record prior to summations. The error came to my attention after one of the assistant district attorneys who was prosecuting the case noticed that although he recalled Steve Rogers testifying that the shooter wore a red shirt, the record had the witness describing the shirt as grey. I reviewed my notes which confirmed my recollection that the witness had described the shirt as red. I then ordered a hearing to determine whether the reporter had correctly transcribed the word in question. Each side called one witness and I called the reporter who transcribed the testimony. After hearing the witnesses and again reviewing my notes I determined that the witness had said the word "red" and corrected the record accordingly.
Defendant argues that a court lacks authority to resettle or correct its record except insofar as it is authorized to do so by CPL 460.70, CPLR 5525, or an order of an appellate court. As I was not acting in any of these contexts, he further argues, I was without power to correct the record as I did. Both civil and criminal courts, however, have the authority to correct their records ( see People v. Minaya, 54 NY2d 360). "Courts retain the inherent power to correct their records, where the correction relates to mistakes or errors, which may be deemed clerical in nature, or where it is made in order to conform the record to the truth" ( People v. Richardson 100 NY2d 847, 850; see Bohlen v. Metropolitan El. Ry. Co., 121 NY 546, 550-551). I also reject defendant's contention that he was prejudiced because I briefly spoke to the reporter about the discrepancy before she testified. Moreover, I did not "summarily" correct the record but did so only after both sides were offered a full opportunity to call witnesses and be heard. As all of defendant's arguments regarding the correction of the record are without merit, his application for a mistrial on these grounds is denied.
There is similarly no merit to defendant's claim that the People were guilty of various forms of misconduct during the trial. Defendant contends that the prosecution acted improperly in bringing up the subject of gangs and in its opening, as he further argues, they failed to show that the defendant had any gang involvement or that the murder was gang-related. This argument is unpreserved, as defendant never moved for a mistrial on this ground ( see People v. Balls, 69 NY2d 641). Were I to consider defendant's claim on the merits, I would deny it. The People adduced both direct and circumstantial evidence that the motive for the murder was friction between two gangs and that defendant was associated with one of them. Additionally, the People did not act in bad faith, as they did not know until after jury selection that a witnesses who was to testify as to defendant's gang membership was no linger willing to testify. They notified defendant of this development prior to openings and informed the jury in their opening as well. In addition, the defendant was not prejudiced the discussion of gang membership during jury selection and in the People's opening. I repeatedly informed the jury panel that they were not to draw any inference against the defendant merely because he may have been a member of a gang and that they were to put aside any feelings they had about gangs. I also informed the jury in my opening remarks that the "opening statement is not evidence. It is just a preview of what the prosecution believes the evidence will show." I instructed the jury at the close of the case to the same effect, and additionally told it that it was only to consider the evidence in the case. These instructions negated any prejudice that may have otherwise accrued from representations that the People may have made but did not fulfill ( see People v. De Tore, 34 NY2d 199; People v. Thomas, 232 AD2d 251; People v. Alacanter, 183 AD2d 579; cf. People v. Cruz 100 AD2d 882). The remaining cases relied upon by defendant involve instances of far more serious prejudice to the defense and are therefore inapposite.
The defendant claims that he was prejudiced because the People misled him as to Steven Rogers's familiarity with him. According to defendant, he devoted his pre-trial energies to developing an identification defense only to see the People render it useless when they argued to the jury that Rogers was well acquainted with the him. Assuming for the sake of argument the People had an affirmative obligation to divulge to defendant that the witness knew him from the neighborhood, defendant has not shown that the People were guilty of misconduct. The People state that they did not know until the eve of Rogers's testimony that he claimed to have seen the defendant "millions of times." They further state that they did not bring their witnesses to their offices until just before they were supposed to testify. They explain that they took this precaution because another witness had been murdered and they were afraid that if they had contact with the remaining witnesses they would endanger them or cause them to become skittish and unwilling to testify. When they learned of Rogers's familiarity with Smith they promptly informed the defense of this fact. Defendant states that it is "unclear" when the People became aware of this information, but provides no reason to doubt either their representation or their explanation. Additionally, that the defendant devoted efforts a defense that was not ultimately useful does not mean that he was unduly prejudiced. He contends that, had he known that Rogers claimed to know him from the neighborhood he might have investigated whether the witness bore him hostility, how that familiarity influenced his subsequent identifications of him and if he knew him prior to the lineup. The defendant had the opportunity to cross-examine Rogers as to these issues, however, but did not do so. I also note that the defense requested that I charge the jury as to identification testimony and I did so. For these reasons, the application to set aside the verdict on this ground is denied.
Defendant next contends that he was prejudiced by instances of misconduct in the People's summation. To the extent that his application is based on the contention that the prosecution's comments shifted the burden of proof, it is denied. Not only did I repeatedly inform the jury during jury selection and the trial that the burden of proof lay on the People, not the defendant, but I also instructed them as to these matters when the People made the comments in question. There was no reasonable possibility that these comments shifted the burden ( see People v. Hardison, 5 AD3d 312; People v. Planca, 225 AD2d 470).
Defendant additionally argues that the prosecutor committed misconduct when he referred to one of his attorneys as "Rick" and "Rick Jones." Although it was inappropriate for the People to refer to the attorney as "Rick," the single use of his given name in summation was not egregious. The usage fell far short of the type of comment that would require setting the verdict aside ( see People v. Long, 81 AD2d 521; People v. Spruill, 5 AD3d 318; cf. People v. LaPorte, 306 AD2d 93; People v. Diaz, 170 AD2d 202, amended on other grounds 172 AD2d 341). There was nothing objectionable about referring to the attorney by his full name. The complaint that the People impugned defendant's theory that prosecution witnesses entered into secret cooperation agreements is meritless. The People's remarks constituted fair response to defendant's summation and did not exceed the "broad bounds of rhetorical comment permissible in closing argument" ( see People v. Galloway, 54 NY2d 396, 399; People v. Maldonado, 256 AD2d 253). The summation was not pervaded with flagrant examples of misconduct which deprived defendant of due process ( see People v. D'Alessandro, 184 AD2d 114; People v. Cobb, 188 AD2d 308).
Defendant's last argument is that he is entitled to relief because of juror misconduct. Defendant has submitted two affidavits from people who interviewed juror No. 4 sometime after the verdict. I had asked the members of the jury panel during voir dire whether any of them "had issues with the criminal justice system that might impact on [them]." The juror, it now appears, had been arrested several times. The arrests had not resulted in criminal convictions. He told his interviewers that he initially raised his hand when I asked the question of the entire panel but took it down before I questioned him personally. He explained that he had taken his hand down when he realized that I wished to know whether the panel members would be able to put aside their personal experiences. As he did not want to discuss his criminal history in front of the entire panel and believed that it would not affect his ability to be impartial, he did not think that it was relevant. The defendant argues that he was prejudiced when juror #4 conveyed by his "firsthand knowledge of the criminal justice system," to the rest of jury. He contends that "as a former participant in the criminal justice system, [juror #4] was in a position to give his opinion — as an expert — on whether or not individuals would testify in order to gain favor with police officers." Defendant also seems to argue that, influencing the jury apart, the juror committed misconduct by withholding his criminal history from me during voir dire.
Defendant also alleges another instance of juror misconduct. The interviewers asked the same juror why he had voted guilty. He told them that he done some research during the pendency of the case and realized why the defendant was on parole. He stated that he did not share his research with the other jurors.
To the extent that defendant's application is based on these grounds it is denied. Generally, a verdict may not be impeached by "proof of the tenor of their deliberations" ( People v. Brown, 48 NY2d 388, 393). "Jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the jury room; much less can they do so by statements presented in the form of hearsay affidavits" ( see People v. Morales, 121 AD2d 240). The only exception to the rule is where defendant alleges that the verdict was affected by improper influence ( see People v. Margh, 94 NY2d 569. Improper influence includes "well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial" ( People v. Brown, 48 NY2d 388, 393). In order to prevail on a claim that he was prejudiced by improper influence the defendant must show that the juror or jury "(1) conduct[ed] personal specialized assessments not within the common ken of juror experience and knowledge (2) concerning a material issue in the case, and (3) communicat[ed] that expert opinion to the rest of the jury panel with the force of private, untested truth as though it were evidence" ( People v. Margh, 94 NY2d 569, 574.
The affidavits submitted fail on their face to establish prejudicial misconduct warranting a hearing. Defendant argues that the witnesses' motives and veracity were material issues in the case, and that the juror's familiarity with the criminal justice system bore on these issues. The concept that one who is charged with a crime might wish to curry favor with law enforcement officials, however, is not specialized knowledge nor is it beyond the ken of lay jurors. In addition, and contrary to defendant's argument, the affidavits submitted in support of the application do not represent that juror #4 informed his fellow jurors of his experience with law enforcement officials. As the information at issue was neither beyond the common ken of juror experience and knowledge, and the affidavits submitted make no claim that it was conveyed to the jury, defendant is not entitled to have the verdict set aside on this ground. Defendant has also not established that he was prejudiced by the juror's investigation into his parole status. Not only was defendant's parole status, let alone the reason for such status, not a material issue in the case, but the affidavits submitted affirmatively state that juror # 4 represented that he did not share his research with his fellow jurors. In any event, the jury was already aware that the defendant was on parole. In addition, I instructed the jury not to infer anything from defendant's status as a parolee. In view of the fact that the proof submitted does not describe conduct on the part of juror #4 that can reasonably be viewed to have resulted in external or improper influence on the jury, it is unnecessary to hold a hearing as to either of defendant's claims ( see People v. Morales, 121 AD2d 240; People v. Camacho, 293 AD2d 876).
Additionally, it is unlikely that the jury could have believed that juror #4 was an expert on these matters merely because he had a passing involvement with the criminal justice system. There is no claim that he ever entered into a cooperation agreement or that represented that he had done so to the jury.
I also note that juror #4 did not lie or conceal any information during voir dire, as I never expressly asked the jury panel members to indicate whether any of them had been arrested. I rather asked whether they had any experiences with the criminal justice system that might impact on them (emphasis added). As the juror did not believe that his verdict would be affected by his criminal history, he did not have to answer my question in the affirmative. For the same reason, he was not under an independent obligation to bring the arrests to my attention. He was therefore not guilty of misconduct during voir dire. In addition, had defendant affirmatively stated that he had been arrested, his response would not have required a challenge for cause on the part of the defendant to be sustained ( cf. People v. Howard, 66 AD2d 670).
It is likely that, had the parties known that he had been arrested, it would have been the People, not defendant, who would have challenged him.
As I find all of defendant's arguments to meritless, his application is denied.