People v McClain

[*1] People v McClain 2006 NY Slip Op 51448(U) [12 Misc 3d 1185(A)] Decided on May 10, 2006 Supreme Court, Kings County Lott, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2006
Supreme Court, Kings County

People of the State of New York,

against

George Robert McClain,, Defendant.



6302/04

Plummer E. Lott, J.

The defendant moves pursuant to CPL 330.30 to set aside the verdict on the grounds that (1) the court improperly admitted (1.) The decedent's conversation with her boyfriend, a conversation with her girlfriend, and a 911 tape, all of which violated his right to confrontation; (2) the court's Sandoval ruling permitting the People to cross examine him about "remote" convictions was improper; and (3) there was legally insufficient evidence to convict him because the jury should not have believed the government's witness.

In deciding this motion, the court has considered the trial record, the motion papers, the affirmation in opposition, the trial record and the court file.

Background

On September 29, 2004, "Patty" Jerome (the decedent) was shot and killed. The defendant was arrested, indicted, and convicted for this crime.

At trial it was established that the defendant, the decedent, decedent's boyfriend Marvin Ellis (Marvin), and her girlfriend, Sabrita Lowe (Lowe), were all tenants in a multi-family dwelling located at 114 Liberty Avenue in Brooklyn. The decedent and the defendant had prior conflicts arising out of her tenancy. Two days prior to her death, decedent called her boyfriend and complained about the defendant's continued harassment of her. On the night previous to her homicide, Lowe recalled the defendant coming to her room, showing her a gun, and then telling her that he had to kill that "bitch" (referring to the decedent).

The next day, approximately ten minutes prior to the shooting, the decedent called 911 and reported that the defendant, whom she referred to as "Rob", had punched her in the throat knocking her to the ground. After making the call, decedent told Lowe about the assault. Lowe observed her to be very upset and frightened . Shortly after the defendant's assault of the decedent and decedent's call to 911, landlord and girlfriend of the defendant Gloria Dawson, called 911 to report that the decedent had threatened to set the residence on fire.

Ten minutes after the assault, Lowe observed the defendant holding what appeared to be the same gun she had seen him with the previous night. While the decedent and defendant were facing one another at arm's length, the defendant raised his arm in front of the decedent. After Lowe heard a shot, she noticed him step backwards, turn toward her holding the gun, declare to her that he "had to go" and then run away. Immediately after he ran, she saw the decedent lying in the doorway of 114 Liberty bleeding from her neck. The decedent was ultimately was [*2]pronounced dead.

Prior to trial, the court conducted a Sandoval [FN1] hearing. The court ruled that if the defendant elected to testify, the People would be permitted to cross-examine him about two prior felony convictions, one in 1991 for attempted criminal sale of a controlled substance in the third degree and a second conviction in the year 2000 in the State of Florida for possession, sale or delivery of cocaine, a felony crime. The defendant objected to the court's ruling on the basis that the 1991 conviction was too remote in time. The defendant did not testify.

In a pre-trial in limine decision, the court also held that the 911 recording of the decedent's reporting an assault by the defendant ten minutes before the homicide was admissible to show motive and intent for the homicide, as well as to explain the relationship between the parties. The court also ruled that a recorded voicemail message to her boyfriend Marvin, wherein she complained of the defendant's ongoing harassment of her, and the substance of a conversation between the decedent and her friend Sabrita Lowe, would each be admissible as evidence of motive and intent. The Court also permitted the evidence to be admitted as evidence to explain the relationship between the parties and instructed the jury in this regard.

CPL 330.30

CPL 330.30 (1) permits a trial court, upon motion of a defendant, to set aside a guilty verdict before sentence based upon "any ground in the record which if raised on appeal would require reversal or modification as a matter of law." This, in effect, temporarily transforms a trial court into a quasi - (intermediate) appellate court.[FN2] The court is limited to matters of law that have been preserved and that would require reversal of the conviction when appealed.[FN3]

The People do not contest, and the court agrees, that the defendant has preserved the issues which underlie he present motion.

The Crawford Issue [FN4]

The defendant has argued that the introduction of the 911 call, the voicemail message and the conversation between the decedent and Lowe violated his Sixth Amendment right to confrontation.[FN5]

In Crawford, the United States Supreme Court held that admission of testimonial hearsay at trial, where the declarant does not testify at trial and the defendant had no prior opportunity for cross-examination the declarant, violates the accused's confrontation right under the Sixth [*3]Amendment to the United States Constitution.

Much to the chagrin of trial courts across the land, the Crawford majority did not adopt a precise definition of the term "testimonial."[FN6] They did , however, provide some examples of testimonial hearsay. Specifically, Crawford held that, at a minimum, statements are considered "testimonial" if the declarant made them at a preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations."[FN7] Beyond this explicit guidance, the Supreme Court discussed three formulations of the statement that might qualify as testimonial, namely: (1) "ex parte" in court testimony or its functional equivalent-that is material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarant would reasonably expect to be used prosecutorially"; (2) extrajudicial statement... constrained in affidavits, depositions, prior testimony or confessions"; and (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." [FN8] However, the Court refused to endorse any of these.

Excited Utterance

The decedent's message left on her boyfriend Marvin's voicemail was left two days before her homicide The call contains her strongly urging Marvin to come back to New York to help her deal with the defendant whom she claimed had threatened to assault her. While the court at the in limine hearing did not specifically address the People's claim that the conversations were excited utterances, the fact that the court permitted the evidence indicates that the court ruled that the conversations were excited utterances.

In determining whether a statement qualifies as an excited utterance, "the court must ascertain whether, at the time the utterance was made, the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties, thereby preventing opportunity for deliberation which might lead the declarant to be untruthful. The court must assess not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth. Above all, the decisive factor is whether the surrounding circumstances [*4]reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection."[FN9]

The fact that the statement was made during a 911 call, although not dispositive, is a contributing factor in making this determination. The caller's voice, in this case, that of the decedent, was distraught and rapid, conveying fear and upset. Her state of mind is corroborated by the very nature of her complaint, namely, the defendant's having punched and his continued presence in the neighborhood. Her ability to provide the 911 operator with a description of her assailant and to provide the name "Rob" in no way undermines this conclusion. The decedent's call to the emergency 911 operator was made ten minutes before she was shot to death and immediately after the defendant had "punched her in the neck." [FN10] Indeed, according to her, he was on Liberty Street walking his dog at the time she was speaking to the 911 operator.

Similarly, the conversation between the decedent and her boyfriend, the voice message and her conversation with her girl friend Sabrita all constituted excited utterances.

911 Call

The court found the recording of the 911 call and the conversation between Lowe and the decedent, to be admissible under the Molineux doctrines as evidence of motive, intent, identity and to explain the relationship between the parties.

Prior to defendant's trial, the issue of Crawford's application to 911 calls was resolved in favor of their admissibility.[FN11]

Voicemail Message, and Conversation

between decedent and Lowe

Sabrina Lowe's testimony about her conversation with the decedent occurred soon after she was attacked by the defendant. Decedent's recorded voicemail message to her boyfriend Marvin was left two days after that event. Both the voicemail recording and Sabrina Lowe's testimony were properly admitted as evidence of intent, motive, and identity. The introduction of the evidence for the purpose of explaining the relationship between the parties was likewise proper.

With respect to their admissibility under Crawford, it is evident from their character, that these statements were not made in the course of a preliminary hearing, in front of a grand jury, nor at a prior trial. Further, the circumstances of the statement would not have led the decedent to believe that her statements would be available for use at a later trial. "Courts throughout the [*5]United States, both federal and state, have agreed that statements made to friends in an unofficial setting do not constitute testimonial hearsay."[FN12]

The voicemail recording, and the conversation did not violate the defendant's constitutional right to confrontation because they were non-testimonial.

The Forfeiture Rule

Even if this Court were to find that the Crawford case prohibited the introduction of the taped calls, or the conversation, the so-called "forfeiture rule" of Crawford would nevertheless permit their admissibility. This rule simply provides that by killing another, a defendant forfeits his or her right to raise a confrontation clause challenge to the admission of the hearsay statement(s) such as those made by the decedent to the 911 operator in this case as well as those made to her boyfriend.[FN13]

That branch of the motion to set aside the verdict predicated on a violation of the defendant's right to confrontation is denied.

Sandoval Ruling

It is well settled that a trial court, in its discretion, may dictate the extent to which the prosecution should be allowed to impeach the credibility of a defendant [FN14]. Since this issue is left to the sound discretion of the trial court , it may not form the basis for a CPL 330.30 motion because the ruling does not involve an issue of law.[FN15]

However, even if this court were to consider defendant's claim, it would nonetheless find it without merit. It is well established that a defendant who elects to exercise his constitutional right to testify may be cross-examined in good faith concerning his or her prior immoral, vicious, or past criminal conduct only if it has a bearing on his or her credibility as a witness.[FN16]

Remoteness alone does not require preclusion for impeachment purposes.[FN17] The fact that [*6]one of the convictions was fourteen years old does not by itself, require preclusion of impeachment with regard to this conviction.[FN18] Finally, the fact that the Court limited the prosecution from eliciting the underlying facts related to the conviction, the court avoided any undue prejudice which may have resulted if the jury learned of the defendant's previous criminal behavior.[FN19]

The court's Sandoval ruling reflects a fair balancing of the appropriate factors and was a proper exercise of the court's discretion.[FN20] Neither were any of his convictions excessively remote in time.[FN21]

That branch of the motion based on an alleged Sandoval violation is denied.

Legal Sufficiency

A verdict is based upon legally sufficient evidence if " after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt "[FN22] Under this standard, the People are entitled to the benefit of every reasonable inference to be drawn from the evidence.[FN23]

Where there exist competing inferences which can be drawn from the evidence, it is the jury who must decide which is the more credible. A "reviewing court must be careful not to substitute itself for the jury. Great deference must be accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor." [FN24]

The probative force of any conflicting testimony such as that argued by the defendant, and the relative strength of conflicting inferences that may have been drawn from the subject testimony were such that the jury could reasonably have inferred that it was the defendant who intentionally fired the gunshot which killed the decedent on the afternoon of September 29, 2004.

In this case, the jury had a rational basis for accepting the People's evidence and rejecting the evidence introduced by the defendant. [*7]

That branch of the motion to set aside a verdict based on legally insufficient evidence is denied.

To the degree that the court has failed to address each and every one of the defendant's claims, they are equally without merit.

This constitutes the decision and order of the court.

E N T E R ,

___________________

Hon. Plummer E. Lott

Justice of the Supreme Court

Footnotes

Footnote 1: People v Sandoval, 34 NY2d 371 (1974)

Footnote 2: Unlike an intermediate appellate court, a trial court considering a CPL 330.30 motion is not vested with discretionary interest of justice jurisdiction. CPL § 470.15(3)c.

Footnote 3:CPL § § 470.15(2) 470.35(1)

Footnote 4: Crawford v Washington, 541 US 36 (2004)

Footnote 5: The cases of Davis v. Washington, Dkt. 05-5224 and Hammon v. Indiana, Dkt. 05-5705 which were argued on March 20, 2006, address the issue of whether or not a 911 call is "testimonial" according to Crawford v. Washington, was argued before the Supreme Court on march 20, 2006. A decision is expected sometime this summer.

Footnote 6: "The Court grandly declares that [w]e leave for another day any effort to spell out a comprehensive definition of testimonial,' ante, at 1374. But the thousands of federal prosecutors and the tens of thousands of state prosecutors need answers as to what beyond the specific kinds of "testimony" the Court lists, see ibid., is covered by the new rule. They need to know now, not months or years from now." Crawford, 541 U.S at 75-76, Rehnquist Concurrence, (internal citations omitted). Rehnquist, concurrence.

Footnote 7: Id.

Footnote 8: Crawford v. Washington, 541 at 68.

Footnote 9: People v Edwards, 47 NY2d 493, 497 (1979).

Footnote 10: See, People v. Paul , 25 AD3d 165 (2005)

Footnote 11: See, People v. Coleman, 16 AD3d 254 (2005); People v. Royster, 18 AD3d 375 (2005) (holding substance of 911 calls to be non-testimonial).

Footnote 12: Connecticut v. Miller, 2006 WL 1297102 (2006). See also cases cited therein. The case of Davis v. Washington, Dkt. 05-5224 and Hammon v. Indiana, Dkt. 05-5224, each of which addresses the issue of whether or not a 911 call is "testimonial" according to Crawford v. Washington was argued before the Supreme Court on March 20, 2006. A decision is expected sometime this summer.

Footnote 13: U.S. v. Mastrangelo, 693 F2d 269 (2d Cir. 1982) (see cases cited therein); U.S. v. Dhinsa, 243 F3d 635, 651 (2d Cir. 2001); People v. Tri Dung Nguyen, 2006 WL 533834 (Superior Ct. Cal. 2006);

Footnote 14: see People v. Bennette, 56 NY2d 142 (1982); People v. Duffy, 36 NY2d 258 (1975).

Footnote 15: See earlier discussion under heading "330.30"

Footnote 16: People v. Dickman, 42 NY2d 294, 297 (1977).

Footnote 17: People v. Roberto Ortiz, 156 AD2d 197, 198 (1989).

Footnote 18: See, People v. Scott, 118 AD2d 881 (1986)); People v. Walker, 83 NY2d 455 (1994).

Footnote 19: People v. Walter Ricks, 135 AD2d 844(1994).

Footnote 20: People v. Hayes, 97 NY2d 203 (2002)

Footnote 21: People v. Stake, 237 AD2d 225, 226 (1997)

Footnote 22: People v Contes, 60 NY2d 620, 621 (1983) quoting Jackson v Virginia, 443 U.S. 307, 319 (1979).

Footnote 23: see People v Tejeda, 73 NY2d 958, 960 (1989)

Footnote 24: Bleakley, 69 NY2d 490, 495 (1988).