| People v Dashnaw |
| 2014 NY Slip Op 02624 [116 AD3d 1222] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vEdward A. Dashnaw, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered December 5, 2011, upon a verdict convicting defendant of the crimes ofmurder in the first degree (two counts), grand larceny in the fourth degree (two counts),criminal possession of stolen property in the fifth degree (three counts) and criminalpossession of a forged instrument in the second degree (two counts).
On December 19, 2005, defendant and his girlfriend went to the House ofPine—a furniture business operated by Lorraine Donivan and David Donivanadjacent to their home in the Town of Schuyler Falls, Clinton County—to shop forChristmas presents. While there, defendant, who had delivered furniture for the Donivansin the past, mentioned that he was out of work. In response, Lorraine Donivan allegedlyhired defendant to assist her nephew, Corey Desso, with a furniture delivery scheduledfor Christmas Eve.
On the morning of December 20, 2005, David Donivan cashed a check for $800 atthe Champlain Center North branch of Citizen's Bank in the City of Plattsburgh, ClintonCounty and, later that same day, was observed gambling at the Akwesasne MohawkCasino in Franklin County. David Donivan "cashed out" of the casino at approximately2:00 p.m. and, at some undisclosed point thereafter, returned to his residence.
At roughly the same time that David Donivan was finishing up at the casino, hiswife, [*2]Lorraine Donivan, met with a customer at theHouse of Pine. A second customer, who had received a message from Lorraine Donivanearlier that day, spoke with her by telephone around 3:00 p.m. and, at approximately 4:00p.m., a third customer arrived at the House of Pine to pick up some cushions. As thislatter customer started to enter the premises, a man generally matching defendant'sdescription came out and advised her that Lorraine Donivan was not there.[FN1] Two days later, on December 22, 2005, another customer arrived at the House of Pinemidday and discovered a "[v]ery sloppy" handwritten note posted on the door advisingthat the business would not be open that day "due to sickness of relitives" [sic].
On Christmas Eve day, Desso drove to the House of Pine to make a previouslyarranged furniture delivery for a customer. When he arrived, he found the doors to theresidence and the warehouse locked and saw defendant inside of the warehouse. WhenDesso asked defendant how he had gained entry, defendant indicated that LorraineDonivan had left instructions on how to get in and that he was there to assist Desso withthe delivery. Desso then asked to see the note that his aunt allegedly had authored, butdefendant was unable to produce it, and Desso's subsequent call to Lorraine Donivan'scell phone went unanswered. After Desso and defendant completed the scheduleddelivery, Desso again unsuccessfully attempted to contact his aunt.
As it turned out, Desso was not the only person trying to get in touch with theDonivans. Indeed, between December 20, 2005 and December 29, 2005, more than 30messages from friends, customers and relatives were left on the Donivans' answeringmachine, and the State Police twice were dispatched to the residence for a welfare checkafter the Donivans were reported missing. Additionally, after receiving a call from theDonivans' relatives in Florida, Troy Lapoint, who had worked for the Donivans in thepast (and still had keys to the premises), went to the House of Pine on Christmas Day tosee if he could locate them. Lapoint discovered a note advising that the Donivans wereout of town and, after letting himself into the residence and briefly looking around, heleft the premises.[FN2]
After receiving another call from the Donivans' relatives, Lapoint returned to theHouse of Pine on December 29, 2005. Lapoint again entered the residence and, afterlistening to the messages on the answering machine, began walking through the house.Upon entering the Donivans' bedroom, Lapoint noticed that a large area of carpeting hadbeen cut out and removed from the floor. Lapoint then exited the residence and contactedthe State Police.
The State Police arrived and, while searching the residence, discovered the body ofDavid Donivan—wrapped in a section of carpeting—in thebasement.[FN3] A subsequent autopsy [*3]revealed that David Donivanhad been stabbed a total of 32 times—with the fatal blow consisting of apenetrating wound to the base of his aorta. Based upon David Donivan's defensivewounds and the overall pattern of his injuries, the pathologist who performed the autopsytestified that these injuries were consistent with a frontal attack. Due to the degree ofdecomposition, a precise time of death could not be determined, but the pathologisttestified that the physical findings suggested that David Donivan had been dead for "aweek or more."
The State Police continued to search the premises and, two days later, on December31, 2005, Lorraine Donivan's body was found wrapped in a comforter and hidden in anunheated loft area of the warehouse at the House of Pine; she had been stabbed a total of10 times, including three blows to the back of her neck, one of which penetrated herbrain stem. According to the pathologist who performed the autopsy, Lorraine Donivanmost likely was attacked from behind. Although a precise time of death for LorraineDonivan also could not be established, the pathologist testified that both of the Donivanswere stabbed with a single-blade knife—consistent with a knife (as depicted inPeople's exhibit No. 2) recovered from the Donivans' residence.
Defendant thereafter was indicted and charged with murder in the first degree (twocounts), murder in the second degree (two counts), grand larceny in the fourth degree(two counts), criminal possession of stolen property in the fifth degree (three counts) andcriminal possession of a forged instrument in the second degree (two counts). Followinga jury trial, defendant was convicted of, among other things, two counts of murder in thefirst degree. Upon appeal, this Court reversed and ordered a new trial (85 AD3d 1389[2011], lv denied 17 NY3d 815 [2011]). At the conclusion of the lengthy retrial,defendant again was convicted of murder in the first degree (two counts), grand larcenyin the fourth degree (two counts), criminal possession of stolen property in the fifthdegree (three counts) and criminal possession of a forged instrument in the second degree(two counts) and was sentenced to an aggregate prison term of life without parole.Defendant now appeals.
Defendant's claim that the verdict convicting him of two counts of murder in the firstdegree is against the weight of the evidence is lacking in merit. Insofar as is relevanthere, a person is guilty of murder in the first degree when "[w]ith intent to cause thedeath of another person, he [or she] causes the death of such person . . . and. . . as part of the same criminal transaction, [he or she], with intent to causeserious physical injury to or the death of an additional person or persons, causes the deathof an additional person or persons; provided, however, the victim is not a participant inthe criminal transaction" (Penal Law § 125.27 [1] [a] [viii]). "Criminaltransaction," in turn, is defined as "conduct which establishes at least one offense, andwhich is comprised of two or more or a group of acts either (a) so closely related andconnected in point of time and circumstances of commission as to constitute a singlecriminal incident, or (b) so closely related in criminal purpose or objective as toconstitute elements or integral parts of a single criminal venture" (CPL 40.10 [2]).
We find that there is overwhelming proof to establish defendant as the perpetrator ofthe charged crimes. Two steak knives (as depicted in People's exhibit No. 5) wererecovered from the scene. One of those knives (depicted in People's exhibit No. 2) testedpositive for human blood and subsequently was determined to contain David Donivan'sDNA. The white towel upon which the steak knives were found contained bothdefendant's and David Donivan's DNA, and defendant's DNA (extracted from bloodevidence at the scene) also was found in the hallway of the residence. Additionally, abloodied adhesive bandage recovered near Lorraine Donivan's body tested positive fordefendant's DNA and, on December 30, 2005, defendant was observed to [*4]have a "[h]ealing" cut to the index finger of his left hand.
Further, a number of purchases subsequently linked to defendant were made (both inNew York and in Vermont) with the Donivans' credit cards beginning on December 21,2005 and, beginning on December 22, 2005, defendant cashed three checks drawn on anaccount belonging to David Donivan.[FN4] The missing Toyota pickup truck belonging to David Donivan ultimately was found inthe parking lot on the Grand Isle (Vermont) side of the Lake Champlain ferry,[FN5] and video surveillance cameras captured the vehicle entering and exiting the parking loton December 22, 2005 and December 26, 2005. Defendant also was observed passing infront of a video surveillance camera located on a ferry booth at the Grand Isle station onDecember 27, 2005. Following execution of a search warrant at defendant's residence,State Police discovered a checkbook belonging to the Donivans in defendant's bedroomand David Donivan's casino card and a torn photograph of the Donivans in thetrash.[FN6] Additionally, the State Police discovered four remote control devices, two of whichopened the garage doors at the Donivans' residence and the House of Pine warehouse, ina vehicle belonging to defendant's mother.
Finally, when defendant was asked to provide handwriting samples that included theword "relatives," he misspelled that word as "relitives"—the exact misspelling asappeared in the note affixed to the sliding glass doors at the House of Pine on December22, 2005. Based upon an analysis of defendant's known handwriting and the variousexemplars he subsequently provided, a handwriting expert opined that defendant wrotethe note in question.
As to the intent element, we are satisfied that the requisite intent may be inferredfrom the surrounding circumstances—including, among other things, the multiplestab wounds inflicted upon each victim and the defensive injuries sustained by DavidDonivan (see People vJohnson, 106 AD3d 1272, 1278 [2013], lv denied 21 NY3d 1043[2013]; People v Callicut,101 AD3d 1256, 1258 [2012], lv denied 20 NY3d 1096 [2013]). We areequally satisfied that—even in the absence of a definitive time of death for theDonivans—their deaths occurred in sufficient proximity to one another to bedeemed part of the same criminal transaction.
Neither Lorraine Donivan nor David Donivan was seen or heard from aftermid-afternoon on December 20, 2005. As noted previously, David Donivan cashed outof the casino [*5]at approximately 2:00 p.m. that day, anda customer spoke with Lorraine Donivan at approximately 3:00 p.m. that afternoon. By4:00 p.m., however, another customer had been advised—by a man matchingdefendant's description—that Lorraine Donivan, who by all accounts was a fixtureat the House of Pine, was not on the premises. The Donivans thereafter failed to attendChristmas Eve mass at their church, as had been their custom for a number of years, andmore than 30 messages from friends, relatives and customers would go unreturnedbetween the time the Donivans were last seen on December 20, 2005 and the time theirbodies were discovered more than one week later. In the interim, the State Police twicewere dispatched to the House of Pine in an attempt to locate the Donivans, and Lapointalso made two visits to the premises at the request of the Donivans' relatives. Again,there was no sign of the Donivans until the discovery of David Donivan's body onDecember 29, 2005.
Additionally, a subsequent search of the Donivans' residence uncovered twoseven-day pill containers—one pink, one blue. In each container, thecompartments for Sunday and Monday were empty, and the compartments forWednesday, Thursday, Friday and Saturday contained multiple pills. The Tuesdaycompartment in the blue container was empty, while the corresponding compartment inthe pink container contained some medication, from which it reasonably could beinferred that the owner of the pink container had taken a portion of the Tuesdaymedications, while the owner of the blue container had taken all of the medications forthat day. Further, although the pathologist who performed the autopsies indeed could notdetermine a time of death, his testimony did establish that the manner of death was thesame for both Lorraine Donivan and David Donivan—multiple stab wounds froma single-blade knife consistent with a knife recovered from their residence containingtraces of David Donivan's DNA. Finally, in the days after the Donivans were last seenalive on December 20, 2005, defendant was observed cashing checks drawn on DavidDonivan's account, driving his Toyota pickup truck and utilizing the Donivans' creditcards to make various purchases.
Simply put, in light of the manner of death and the utter absence of any trace of theDonivans after December 20, 2005, we find ample evidence to support the finding thattheir deaths were part of the same criminal transaction. Indeed, it strains credulity tosuggest that, in the nine days that elapsed between the time the Donivans were last seenalive and David Donivan's body was discovered, one of them—had he or she beenalive—would have failed to report his or her spouse missing or failed to return anyof the more than 30 messages left on the answering machine at the marital residence.Similarly, it defies logic to suggest that either Lorraine Donivan or DavidDonivan—had he or she been alive—would have sat idly by whiledefendant, a recently hired employee, drove one of their vehicles, used their credit cardsto make personal purchases, utilized their garage door openers to access the businesspremises and coordinated furniture deliveries. In short, we are satisfied that the jury'sverdict is in accord with the weight of the evidence.
Defendant next contends that he was denied his right to a fair trial based uponcomments made by County Court during the course of voir dire—specifically,defendant takes issue with County Court's decision to advise potential jurors that hisprior conviction had been reversed and that the matter had been remitted for a new trial.Inasmuch as defendant failed to register any objection to County Court's remarks duringvoir dire, his argument on this point has not been preserved for our review (cf. People v Ukasoanya, 101AD3d 911, 912-913 [2012], lv denied 21 NY3d 1020 [2013]; People v Pilgrim, 100 AD3d932, 932 [2012], lv denied 21 NY3d 913 [2013]; People v Addison, 94 AD3d1539, 1540 [2012], lv denied 19 NY3d 994 [2012]; People v Terry, 85 AD3d1485, 1487 n 2 [2011], lv denied 17 NY3d 862 [2011]) and, in any [*6]event, is lacking in merit.
Although a criminal defendant unquestionably "has a constitutional right to a fairtrial by a panel of impartial jurors" (People v Knapp, 113 AD2d 154, 158 [1985],cert denied 479 US 844 [1986]; see People v Rodriguez, 71 NY2d 214,218 [1988]), "extensive knowledge in the community of the crime and the accused is notsufficient [in and of] itself to establish that a [particular] trial was unfair" (People vKnapp, 113 AD2d at 158). Notably, courts consistently have held that "jurors neednot be totally ignorant of the facts and issues involved" in a particular case (People vJean-Pierre, 169 AD2d 932, 932 [1991], lv denied 77 NY2d 962 [1991][internal quotation marks and citation omitted]; see Irvin v Dowd, 366 US 717,722 [1961]; People vHarris, 19 NY3d 679, 686-687 [2012]; People v Culhane, 33 NY2d 90,110 [1973]; People v Knapp, 113 AD2d at 158).
Here, although County Court indeed advised each prospective panel of jurors thatdefendant's conviction had been reversed and that this matter was being retried, CountyCourt also appropriately and repeatedly instructed the potential jurors that defendant waspresumed to be innocent, that the underlying indictment did not constitute proof of guilt,that the jurors selected must decide the case based only upon the facts presented to themand that they could not form any opinions prior thereto. Additionally, County Courtpermitted extensive questioning regarding the potential jurors' prior knowledge of thecase, and defendant was afforded ample opportunity to eliminate jurors who exhibitedbias or displayed any inability or unwillingness to render an impartial verdict (seePeople v Knapp, 113 AD2d at 158). Accordingly, "[v]iewing the totality of thecircumstances, including the general atmosphere of the community, the conduct of juryselection, and the trial in general," we cannot say that County Court's comments depriveddefendant of a fair trial (People v Pepper, 89 AD2d 714, 715 [1982], affd59 NY2d 353 [1983]).[FN7]
Defendant's related claim—that defense counsel's failure to object to CountyCourt's comments amounted to the ineffective assistance of counsel—is equallyunpersuasive. "[J]ury selection involves the quintessentially tactical decision of whether[a] defendant's interests would be assisted or harmed by a particular juror" (People v Molano, 70 AD3d1172, 1176 [2010], lv denied 15 NY3d 776 [2010] [internal quotation marksand citation omitted]). Here, counsel's tactical decision to thoroughly explore eachpotential juror's prior knowledge of the case in an effort to ascertain the extent to whicheither the pretrial publicity or this Court's reversal of the prior judgment of convictionmay have influenced the juror's ability to return a fair and impartial verdict reflected alegitimate trial strategy (cf.People v Anderson, 113 AD3d 1102, 1103 [2014]; People v Pinkney, 90 AD3d1313, 1316-1317 [2011]; People v Garrow, 75 AD3d 849, 852 [2010]) and, basedupon our review of the record as a whole, we are satisfied that defendant received theeffective assistance of counsel.[*7]
We also are satisfied that County Courtconducted a sufficient inquiry before granting defendant's mid-trial request to proceedpro se. As the accused, "defendant is entitled to be [the] master of his own fate andrespect for individual autonomy requires that he be allowed to go to [prison] under hisown banner if he so desires and if he makes the choice with eyes [wide] open"(People v Vivenzio, 62 NY2d 775, 776 [1984] [internal quotation marks andcitation omitted]). Accordingly, "[a] defendant in a criminal case may invoke the right todefend pro se provided: (1) the request is unequivocal and timely asserted, (2) there hasbeen a knowing and intelligent waiver of the right to counsel, and (3) the defendant hasnot engaged in conduct which would prevent the fair and orderly exposition of theissues" (People v McIntyre, 36 NY2d 10, 17 [1974] [italics omitted]; accord Matter of Kathleen K.[Steven K.], 17 NY3d 380, 385 [2011]; Matter of State of New York v Timothy BB., 113 AD3d18, 21 [2013]; People vAtkinson, 111 AD3d 1061, 1062 [2013]). The waiver element, in turn, requiresthe trial court to undertake a " 'searching inquiry' " (People v Slaughter, 78 NY2d485, 491 [1991], quoting Faretta v California, 422 US 806, 835 [1975]) gearedtoward "accomplish[ing] the [twin] goals of adequately warning [the] defendant of therisks inherent in proceeding pro se, and apprising [the] defendant of the singularimportance of the lawyer in the adversarial system of adjudication" (People vSmith, 92 NY2d 516, 520 [1998] [italics omitted]; accord People v Crampe,17 NY3d 469, 482 [2011], cert denied sub nom. New v Wingate, 565 US—, 132 S Ct 1746 [2012]; see People v Anderson, 94 AD3d 1010, 1012 [2012], lvdenied 19 NY3d 956 [2012]). Notably, "[t]he focus in a self-representation inquiry isnot on how much the defendant knows about criminal law and procedure, becauseignorance does not preclude self-representation. Instead, the principal focus is onwarning a defendant that his or her lack of knowledge, relative to that of alawyer, will be detrimental if the defendant chooses to waive the right to counsel" (People v Sealy, 102 AD3d591, 591 [2013], lv denied 21 NY3d 1009 [2013] [citation omitted]). Inascertaining the sufficiency of the trial court's inquiry, "a reviewing court may look to thewhole record, not simply to the waiver colloquy, in order to determine if a defendanteffectively waived counsel" (People v Crampe, 17 NY3d at 482 [internalquotation marks and citations omitted]; see People v Thomas, 73 AD3d 1223, 1224 [2010], lvdismissed 15 NY3d 779 [2010]).
Here, there is no question that defendant's mid-trial request to proceed prose—made some three weeks after the trial commenced—was untimely (see People v Race, 78 AD3d1217, 1218 [2010], lv denied 16 NY3d 835 [2011]). Faced, however, withdefendant's repeated, articulate and impassioned pleas to represent himself, County Courtelected—in an exercise of its discretion—to consider the merits ofdefendant's request. Although defendant now faults County Court's decision in thisregard, we cannot say—under the particular facts of this case—that reversalupon this ground is warranted.
To be sure, the Court of Appeals has held that once a trial has commenced andwitnesses have testified, a defendant's "right [to proceed pro se] is severely constrictedand the trial court must exercise its sound discretion and grant the request only undercompelling circumstances" (Matter of Kathleen K. [Steven K.], 17 NY3d at 387[internal quotation marks and citation omitted]; see People v Morales, 12 AD3d 1126, 1126-1127 [2004],lv denied 4 NY3d 746 [2004]; People v Bell, 234 AD2d 378, 378[1996], lv denied 89 NY2d 1088 [1997]). The rationale for this rule, however,stems from concerns regarding "the potential for obstruction and diversion" that mayattend a defendant's decision—or be part of a defendant's strategy—toabandon representation in the midst of the trial, as well as a desire to "avert[ ] delay andconfusion" (People v McIntyre, 36 NY2d at 17). Such concerns were not an issuehere, however, and it is clear that, under appropriate circumstances and followingsufficient inquiry, mid-trial requests to proceed pro se may be granted (see People v Chandler, 109AD3d 1202, 1203 [2013]; [*8]see also People vArroyo, 98 NY2d 101, 104 [2002]). Based upon our review of the record as whole,and taking into consideration defendant's insistence that he be allowed to proceed pro se,we are satisfied that County Court did not abuse its discretion in considering the meritsof defendant's request.
As to the sufficiency of County Court's inquiry, suffice it to say that CountyCourt—repeatedly and in great detail—apprised defendant of the perils andpitfalls of proceeding pro se and went to great lengths to dissuade defendant from doingso. Specifically, County Court cautioned defendant that, while he may have been wellversed with the facts of his case, "[t]he practice of law [was] not a simple process" andentailed education and experience that defendant did not possess. County Court went onto note the then-impending testimony of the People's handwriting and DNA experts andsuggested that defendant consider the legal expertise that counsel could bring toexamining those witnesses. Additionally, County Court advised defendant that, if heproceeded pro se, he would be held to the same standard as an attorney and would beresponsible for the "day-to-day operation of the [trial]," which would include makingappropriate objections and motions, cross-examining the People's witnesses, conductinghis defense and preparing a summation. In this regard, County Court expressly warneddefendant that his ability to introduce certain evidence or effectively argue any applicablemotions likely would be hampered by his lack of legal training, and defendant wasafforded ample opportunity to consider (and reconsider) his request and to discuss thematter with counsel.
To be sure, County Court's inquiry could have been more seamless, but the Court ofAppeals has expressly rejected a strict, formulaic approach in this regard, requiring onlythat the record as a whole "affirmatively disclose that a trial court has delved into adefendant's age, education, occupation, previous exposure to legal procedures and otherrelevant factors bearing on a competent, intelligent, voluntary waiver" (People vArroyo, 98 NY2d at 104 [internal quotation marks and citations omitted]; see People v Providence, 2NY3d 579, 583 [2004]; People v Anderson, 94 AD3d at 1012). Havingpresided over the first trial, County Court was aware of defendant's education,background and familiarity with legal proceedings (see People v Yu-Jen Chang, 92 AD3d 1132, 1134 [2012]),and nothing in the record suggests that defendant's competency was in issue. Under thesecircumstances, County Court did not abuse its discretion in granting defendant's requestto proceed pro se with standby counsel (see People v Vivenzio, 62 NY2d at 776;People v Yu-Jen Chang, 92 AD3d at 1134).
Defendant's remaining arguments, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Notably, defendant laterrelated this encounter to two law enforcement officials, but claimed that he ran into thiscustomer as he was leaving the House of Pine at approximately 4:00 p.m. the day before,i.e., December 19, 2005.
Footnote 2: While there, Lapointobserved that the vehicle normally driven by Lorraine Donivan was parked in the garage,but that the 2004 Toyota Tundra pickup belonging to David Donivan was missing.
Footnote 3: At some point after theState Police were on the scene, defendant and Desso arrived at the House ofPine—ostensibly to make additional furniture deliveries.
Footnote 4: A handwriting experttestified that Lorraine Donivan was not the signatory on any of the checks atissue—check Nos. 115, 116 and 117—and that David Donivan did not signcheck Nos. 115 or 117. Due to the poor reproductive quality of check No. 116, the expertwas unable to determine whether David Donivan wrote out or signed check No. 116 and,for similar reasons, was unable to ascertain whether defendant wrote out or was thesignatory to the checks at issue.
Footnote 5: A State Policeinvestigator testified that the driver's side door handle and gas tank area on the pickuptruck had been "wiped down."
Footnote 6: A similar photographwas found in the Donivans' residence.
Footnote 7: To the extent thatdefendant specifically takes issue with County Court's statement that it was "stuck" withthe retrial—the need for which, in turn, was predicated upon a "proceduralmistake" or "technicality"—we note that these comments were addressed to eitherthe second panel of potential jurors, which was struck in its entirety, or the panel fromwhich three of the ultimately discharged alternates were derived. In any event, viewed inthe context of voir dire as a whole, these isolated statements did not deprive defendant ofa fair trial.