| People v Wells |
| 2012 NY Slip Op 08577 [101 AD3d 1250] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Arteamus R.Wells, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered May 19, 2011, upon a verdict convicting defendant of the crime of murder in the seconddegree.
Defendant killed his former girlfriend by choking her with his hands, stabbing her withscissors and strangling her by wrapping a lamp cord around her neck. He confessed to numerousindividuals, including several police officers, that he killed the victim. In light of defendant'sstatements and the other available evidence, the only apparent defense to the murder charge wasthe affirmative defense of extreme emotional disturbance (hereinafter EED) (see PenalLaw § 125.25 [1] [a]).[FN1]During jury selection, County Court inquired whether defense counsel had filed a notice of intentto present psychiatric evidence (see CPL 250.10 [2]). Counsel responded that [*2]he did not intend to offer psychiatric evidence. In his openingstatement, counsel raised the EED defense and told the jury that defendant was on an "incrediblejourney of self-destruction that's insightful as to his state of mind" and his "emotional state." At acolloquy during trial, the prosecutor cited People v Diaz (15 NY3d 40 [2010]), noting that defendant had notfiled a notice of intent. Counsel responded that he was not planning to offer any psychiatricevidence, but he was planning to offer evidence of EED. During another colloquy, after counselstated that he anticipated that defendant would testify about EED, the court encouraged bothcounsel to thoroughly review Diaz and quoted a portion of that decision that read, "Ofcourse, a defendant can choose to testify in his own defense to explain his actions withouttriggering the notice requirement of CPL 250.10 (2), but he would not be entitled to a juryinstruction on extreme emotional disturbance pursuant to Penal Law § 125.25 (1) (a)"(People v Diaz, 15 NY3d at 47).
Counsel never gave notice of intent. Defendant testified at trial, although he barely addressedthe circumstances surrounding the time of the murder itself. At the charge conference after theproof was closed, defense counsel requested an EED defense charge. County Court denied therequest on two grounds—lack of notice and lack of proof to support the charge. The juryconvicted defendant of the sole count, murder in the second degree, and the court sentenced himto 25 years to life in prison. Defendant appeals.
Counsel erred in failing to give notice of intent to offer psychiatric evidence. CPL 250.10provides that a court permit late service of a notice of intent, in the interest of justice and forgood cause shown, up until the close of the evidence (see CPL 250.10 [2]). Theprosecutor provided the citation for a recent Court of Appeals case addressing the situation, andCounty Court urged counsel to study the case and quoted an applicable sentence, all prior to theclose of the evidence. As made clear in Diaz, the term "psychiatric evidence" as used inCPL 250.10 is "broadly construed to encompass 'any' mental health evidence offered by adefendant, includ[ing] lay testimony," even testimony from the defendant himself or herself(People v Diaz, 15 NY3d at 47). Despite this recent, binding, applicable case law thatwas pointed out to counsel multiple times during the trial, when he still could have provided latenotice of his intent to offer defendant's testimony in support of an EED defense, counsel did notseek to provide notice but still sought an EED defense charge after the proof was closed.
Prior to trial, defendant was examined by a mental health expert. Because defendant chosenot to call this expert as a witness or introduce the expert report as evidence at trial, defendantwas only required to disclose the expert's report to the People if he filed a notice of intent to offerpsychiatric evidence (see CPL 240.30 [1] [a]). While counsel may have wanted to avoiddisclosing that report to the People (see CPL 240.30 [1] [a]), and opening defendant up toan examination by an expert selected by the People (see CPL 250.10 [3]), counsel'smethod of doing so effectively prevented defendant from obtaining an EED defense charge eventhough EED was the only viable defense. In fact, that was the defense that counsel specificallypursued from his opening statement through the close of proof, yet his actions undermined hisability to have the jury consider it. A single error can constitute ineffective assistance if adefendant demonstrates "that the error was 'so egregious and prejudicial' as to deprive defendantof a fair trial" (People v Cummings,16 NY3d 784, 785 [2011], cert denied 565 US —, 132 S Ct 203 [2011],quoting People v Turner, 5 NY3d476, 480 [2005]). Counsel erred by either lacking familiarity with or understanding of theDiaz case, or failing to follow its guidance without any legitimate explanation. Thequestion then becomes whether this error rendered his assistance ineffective.[*3]
The People contend that counsel's failure to providenotice of intent does not require reversal because County Court also denied the request for anEED defense charge on an alternate basis, namely the lack of proof regarding EED. To supportthe defense, defendant had to show that at the time of the homicide he acted under the influenceof EED and that there was a reasonable explanation for that disturbance (see People vRoche, 98 NY2d 70, 75-76 [2002]; see also People v Smith, 1 NY3d 610, 612 [2004]). EED is a"mental infirmity not rising to the level of insanity . . . , typically manifested by aloss of self-control" (People v Roche, 98 NY2d at 75; see People v Harris, 95NY2d 316, 319 [2000]). Action influenced by EED need not be spontaneous, but may be asignificant mental trauma that "has affected a defendant's mind for a substantial period of time,simmering in the unknowing subconscious and then inexplicably coming to the fore" (Peoplev Patterson, 39 NY2d 288, 303 [1976], affd 432 US 197 [1977]; see People vCasassa, 49 NY2d 668, 676 [1980], cert denied 449 US 842 [1980]). To be entitledto an EED defense jury charge, defendant had to submit "evidence sufficient for a jury to find, bya preponderance of the evidence, that the elements of this affirmative defense were established"(People v Walker, 64 NY2d 741, 743 [1984]). When considering if the EED defenseshould have been charged to the jury, we view the evidence in a light most favorable to defendant(see People v Harris, 95 NY2d at 320).
Defendant and another witness testified that on the night before he attacked the victim,defendant learned that she was telling others that she no longer had romantic feelings for him.Defendant was also upset because the victim was pregnant, likely by another man, and she hadapparently not responded appropriately when his apartment was burglarized and his belongingswere stolen. Although defendant declined to testify regarding the circumstances of the killingitself on direct examination, he did testify that after "I did what I did . . . I called myuncle in Atlanta. I was still in shock." He then said that he fell asleep and "I thought it was adream when I woke up," "I really don't really understand how it happened and why it happened. Ijust—it just happened." When he was asked on cross-examination whether he wrapped thelamp cord around the victim's neck, defendant replied, "I blanked out. I don't remember none ofthat."[FN2][*4]
This testimony was insufficient to support a jury findingthat defendant established, by a preponderance of the evidence, the elements of the EED defense(see People v Walker, 64 NY2d at 743). Defendant did not provide any proof of hismental state at the time of the commission of the crime, stating—despite having taken thewitness stand—that he did not want to talk about what happened in regard to the killingitself. Counsel asked questions to elicit defendant's mental state at the time of the commission ofthe crime, but defendant did not respond and instead avoided that topic. While his testimonycould be used to support a lack of intent because he said he could not remember, there was ampleother evidence of his intent to kill the victim. His testimony may have shown that he acted onjealousy or anger when he killed her. Although those emotions may sometimes serve as areasonable explanation for the presence of EED, they are not alone indicative of any mentalinfirmity and "are not equivalent to the loss of self-control generally associated with that defense"(id. at 743; see People vRoss, 34 AD3d 1124, 1126 [2006], lv denied 8 NY3d 884 [2007]; People vKnights, 109 AD2d 910, 911 [1985]; compare People v Harris, 95 NY2d at 320 [thedefendant confessed that he " 'couldn't stop' his attack" and " 'it was like [he] was looking at amovie [and] didn't have any control' at the time"]; People v Moye, 66 NY2d 887, 890[1985] [the defendant stated that " 'something snapped' inside him," he "went 'bananas' " and"needed help," indicating loss of self-control]).
Even viewing the evidence in a light most favorable to defendant, as we must whenconsidering if the EED defense should have been charged to the jury (see People vHarris, 95 NY2d at 320), the record does not support the defense and charging it "wouldhave invited the jury to impermissibly speculate as to the defendant's state of mind at the time ofthe [homicide]" (People v Walker, 64 NY2d at 743; see People v Roche, 98NY2d at 76; People v Setless, 289 AD2d 708, 709-710 [2001], lv denied 98NY2d 640 [2002]). Defendant's own conduct in refusing to answer questions and to testifyregarding the occurrence of the homicide itself prevented the jury from determining his state ofmind during the commission of the crime.[FN3]As County Court's alternative ground was a proper basis for denying the charge, and theevidentiary problems that were the basis of that ground were beyond counsel's control, counsel'serror in failing to give notice was irrelevant; defendant would not have received the EED defensecharge even had notice been given. While our state standard for meaningful representation doesnot require a full showing of prejudice such as a reasonable probability that the outcome wouldhave been different without counsel's errors, reversal will be warranted where the inadequacy ofcounsel deprives a defendant of a fair trial (see People v Caban, 5 NY3d 143, 155-156 [2005]). Here,defendant's testimony and behavior on the witness stand resulted in the denial of the EEDdefense charge, independent of any errors by counsel. Accordingly, counsel's failure to givenotice, while error, did not deprive defendant of a fair trial and does not entitle defendant to a[*5]new trial.
Counsel also asked open-ended questions of a police investigator during cross-examinationthat elicited testimony that defendant "sold drugs to support himself and [the victim]." Based onsome later questioning, it appears that counsel may have had some purpose for allowingtestimony concerning defendant's prior drug dealing, as defendant had discussed that topic withthe police. This testimony may have been part of counsel's strategy in pursuing the EED defenseby showing—as noted by counsel in his opening statement—that defendant wasself-destructing, implying that his mental state must have been affected for him to tell the policethat he had committed not only this murder, but other murders—none of which could beverified by the police—and different crimes such as selling drugs. As this questioning mayhave been part of a legitimate strategy, we cannot find counsel ineffective for allowing thattestimony into evidence (see id. at 154; People v Henry, 95 NY2d 563, 566[2000]; People v Wiltshire, 96AD3d 1227, 1229 [2012]).
Counsel did err in failing to object to testimony by the victim's sister that defendant "forced[the victim] to have sex with him" at times. As this prior crime evidence was hearsay, prejudicialand unrelated to any issue in the case, it was inadmissible (see People v Chapman, 54 AD3d 507, 511 [2008]). This erroralone is insufficient to constitute ineffective assistance (see People v Wiltshire, 96 AD3dat 1229). Counsel effectively represented defendant by making pretrial motions, representingdefendant at a suppression hearing addressing his statements, having defendant examined by amental health professional, cross-examining the witnesses at trial and urging the jury to find thatdefendant did not have the proper mens rea to commit intentional murder—despitedefendant's behavior during trial of leaving the witness stand, both during direct examination andcross-examination, before questioning was completed, and his rants several times telling the jurythat he knew he was going to be convicted and sentenced to 25 years to life. Viewing counsel'sactions in their totality, even when considering this questioning error along with counsel's failureto provide notice of intent to offer psychiatric evidence, counsel's errors did not rise to such anegregious level as to deprive defendant of meaningful representation (see People vCummings, 16 NY3d at 785).
Considering defendant's brutal murder of a woman that he knew was pregnant, his priorcriminal history and his lack of remorse, we do not find the sentence harsh or excessive.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: EED is an affirmative defensethat reduces a charge of intentional murder in the second degree to manslaughter in the firstdegree if the defendant establishes by a preponderance of the evidence that he or she acted underthe influence of an extreme emotional disturbance (see Penal Law § 125.25 [1] [a];People v Roche, 98 NY2d 70, 75 [2002]).
Footnote 2: In the written statement thatdefendant provided to police, he mentioned calling his uncle and sleeping after the call, but didnot mention being in shock, thinking it was a dream or not understanding how it happened. In thewritten statement, defendant said that he thought about killing the victim about seven hoursbefore the murder and that he had thought about killing her "for a couple of days." He said thathe and the victim went to bed, but defendant "sat up waiting" and decided to wait until 4:00 a.m.to kill her because people would be asleep then. While stabbing her with the scissors, he "waspurposeful[ly] trying to kill her and would not let her up." After choking her with the lamp cord,"[o]nce [he] felt she was dead [he] picked her up by [the] neck with the cord and kept chokingher for three minutes . . . to make sure she was dead." He ended his statement bysaying that he killed the victim and her baby, he felt no regret and no remorse, and "I don't give af. . . who cares what I did because only God can judge me." The statement reflectedthe intentional nature of his crime without a hint of defendant having acted under the influence ofEED.
Footnote 3: Defendant appears to contendthat counsel was ineffective for raising the EED defense during opening statements and statingthat County Court would charge the jury with that defense, without counsel being able to provethe defense. Setting aside the notice issue, counsel stated during a colloquy that he anticipatedthat defendant would "testify to a momentary lapse of control, momentary loss of control." Thus,counsel believed that he would elicit evidence sufficient to support an EED defense, and the lackof proof was due to defendant's failure or refusal to provide testimony as to his own mental stateat the time the crime was committed.