| People v Parker |
| 2008 NY Slip Op 02054 [49 AD3d 974] |
| March 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Vernon E.Parker, Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton, for respondent.
Carpinello, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 31, 2005, upon a verdict convicting defendant of the crime of murder in the firstdegree (three counts) and burglary in the first degree.
Defendant and codefendant Robert Williams were charged with unlawfully entering thehome of defendant's mother-in-law shortly past 11:00 p.m. on July 20, 2002 and fatally shootingher and her 14-year-old daughter. At the time, defendant resided in Maryland with his wife andthe victims lived in the City of Binghamton, Broome County. Both victims were scheduled totestify against defendant in an upcoming criminal trial in Maryland stemming from allegationsthat he sexually assaulted the teenage victim.
The People initially sought the death penalty in this case and, therefore, jury selectionproceeded as if this were a capital prosecution. In the midst of jury selection, however, the deathpenalty was declared unconstitutional (see People v LaValle, 3 NY3d 88 [2004]). While County Courtultimately discharged the 25 jurors who were found to be qualified to serve at that point, it didnot discharge the remaining 300 members of the jury panel who had yet to go through individualvoir dire, and a new jury was empanelled from these members. Following a lengthy trial whereinthe People presented compelling evidence establishing that defendant and Williams traveledfrom Maryland to Binghamton in a rental car, forced the victims into their basement and shotthem multiple times as they lay holding hands on the floor, defendant was found guilty of [*2]three counts of murder in the first degree and one count of burglaryin the first degree.[FN1]Sentenced to life imprisonment without the possibility of parole, defendant appeals. Finding nomerit to any of the contentions raised on appeal, we now affirm.
Defendant argues that his oral statement to police the morning after the murders should havebeen suppressed because it was the result of a warrantless arrest in the absence of probable cause.We are unpersuaded. At around 6:30 a.m. on the morning following the murders, three BaltimoreCounty police officers went to defendant's home at the direction of a supervisor to ensure thatdefendant's wife was safe and to locate him. At this early point in the investigation, the involvedpolice agencies knew that two members of defendant's family had been executed and thatdefendant had been immediately named by other family members as being involved because hehad previously threatened to kill his wife and her family amid significant domestic strife.
This information provided the Baltimore County police with a reasonable suspicion thatdefendant, in accordance with these previously-made threats, might be involved in the doublemurders and might also pose an immediate threat to his wife (see People v Batista, 88NY2d 650, 654 [1996]). Police suspicions were then heightened by the odd behavior ofdefendant's wife that morning. Even though the police told her that they were at her home at thatearly hour out of concerns for her safety, she repeatedly closed the front door on them andrefused a request to let them step inside. These circumstances justified one officer's conduct,when defendant finally emerged from the house, in immediately handcuffing him and thenconducting a protective frisk (see id.; People v Foster, 85 NY2d 1012 [1995];People v Allen, 73 NY2d 378, 379-380 [1989]; People v Perez, 293 AD2d 329,329-330 [2002], lv denied 98 NY2d 679 [2002]; People v Dluhy, 288 AD2d 693[2001], lv denied 97 NY2d 728 [2002], cert denied 537 US 978 [2002]).
Moreover, it is undisputed that defendant was advised that he was not under arrest and thatthe handcuffs were merely a protective measure and would be removed in short order. It is alsoundisputed that defendant was asked if he would be willing to answer questions at the policestation about an incident involving another police agency and he indicated that he would. He wasthen placed inside a patrol car. Notably, as promised, the handcuffs were removed within 10minutes. At this time, defendant was again asked, and again voluntarily agreed, to go to thepolice station for questioning about an incident in Binghamton. No questioning about themurders took place until after defendant had been fully advised of his Miranda rights atthe police station and he waived them.[FN2]Under these circumstances, we are unable to conclude that the investigative detention wastransformed into an arrest in the absence of probable cause such that defendant's oral statement,or any evidence obtained as a result of it, should have been suppressed (see People vAllen, supra; People v Williams, 305 AD2d 804, 807 [2003]; People vDluhy, supra; see alsoPeople v Martinez, 39 AD3d 1159, 1160 [2007], lv denied 9 NY3d 867 [2007]).[*3]
Defendant next argues that County Court should havedischarged the entire jury pool when, in the course of jury selection, the death penalty was foundto be unconstitutional. Following the Court of Appeals' decision declaring the death penalty to beunconstitutional, jury selection was temporarily suspended. When it resumed two months later,County Court notified the jury panel of the change in the law and the concomitant change in thetenor of this case. The court specifically inquired if any prospective juror was unable to followthe law as changed or to be fair and impartial. None of the prospective jurors expressed suchinability. Thereafter, at several points throughout the two-day period it took to select the jury,additional inquiries were posed to various panels concerning whether the change in the lawaffected any prospective juror's view of the case or ability to serve as a fair and impartial juror.Again, none of the prospective jurors expressed a changed view of the case or an inability to befair and impartial.
We thus find that County Court properly exercised its discretion in declining to dismiss theentire jury pool (see generally People vWells, 7 NY3d 51, 59-60 [2006]; People v Cruz, 292 AD2d 175, 176 [2002],lv denied 98 NY2d 696 [2002]; People v Scott, 276 AD2d 371, 372 [2000], lvdenied 95 NY2d 968 [2000]; cf. People v Purcell, 103 AD2d 938, 939 [1984]). Inshort, despite the unusual turn of events in the midst of jury selection, the voir dire record refutesdefendant's claim that the change in law tainted the remaining members of the jury panel so as todeprive him of a fair trial and further refutes the notion that anything other than a fair andimpartial jury was selected (seegenerally People v Ramirez, 23 AD3d 500 [2005], lv denied 6 NY3d 817[2006]; People v Cruz, supra; People v Miller, 239 AD2d 787, 790[1997], affd 91 NY2d 372 [1998]; People v Solis, 173 AD2d 1089 [1991], lvsdenied 78 NY2d 974, 1081 [1991]). To the extent that defendant also claims that numerousprospective jurors were excused "for no legal reason," relying on Hildreth v City of Troy(101 NY 234 [1886]), we find this argument to be patently without merit since these challengedjurors were dismissed because of their views concerning the death penalty (see CPL270.20 [1] [f]) at a time when same had yet to be declared unconstitutional (cf. Hildreth vCity of Troy, supra).
Next, we find that defendant failed to make a prima facie case of purposeful discriminationby the People's use of a peremptory challenge against an African-American prospective juror(see Batson v Kentucky, 476 US 79 [1986]; People v Childress, 81 NY2d 263,266-268 [1993]) and, therefore, the burden never shifted to the People to respond with a raceneutral explanation for it (see People v Wells, 7 NY3d at 58; People v Beverly, 6 AD3d 874,875-876 [2004], lv denied 3 NY3d 637 [2004]). In any event, even assuming a primafacie showing, the record supports County Court's finding that the People indeed provided a raceneutral explanation for the challenged juror—which pertained to her demeanor during anexchange about stipends (see People v Wells, supra)—and this finding isentitled to great deference by this Court (see People v Hernandez, 75 NY2d 350, 356[1990], affd 500 US 352 [1991]).
Next, no testimony of defendant's wife at trial violated the marital privilege (seeCPLR 4502 [b]; CPL 60.10). First, statements made by defendant to his wife concerning hisplans and activities on the evening of the murders were nothing more than "daily and ordinaryexchanges between the spouses" unprotected by the marital privilege (People v Melski,10 NY2d 78, 80 [1961]; see People v O'Dell, 36 AD2d 774 [1971]; People vLaPlanche, 193 AD2d 1062, 1063 [1993], lv denied 82 NY2d 756 [1993]) and were,in any event, essentially repeated to the Baltimore County police lieutenant who interviewed him(see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 74 [1982]; People v Weeks, 15 AD3d 845,846 [2005], lv denied 4 NY3d [*4]892 [2005]).Moreover, defendant's conduct in pulling out a gun and simultaneously directing his wife "to getdown" when she otherwise wanted to open the door to the Baltimore police when they firstknocked on the door within hours of the murders were properly found to constitute threats and,therefore, also unprotected by the marital privilege (see People v Mills, 1 NY3d 269, 276 [2003]; Poppe vPoppe, 3 NY2d 312, 315 [1957]; People v Edwards, 151 AD2d 987 [1989], lvdenied 74 NY2d 808 [1989]).
We likewise find no merit in any of defendant's arguments concerning alleged erroneousevidentiary rulings by County Court during the trial. In particular, permitting the People tointroduce the entire videotape of the crime scene (without redacting that portion depicting thevictims' bodies, as requested by defense counsel) was not an abuse of discretion and did not denydefendant a fair trial. The challenged segment was not so gruesome as to unduly inflame the juryand thus prejudice defendant (see Peoplev Alvarez, 38 AD3d 930, 931-932 [2007], lv denied 8 NY3d 981 [2007];People v Mastropietro, 232 AD2d 725 [1996], lv denied 89 NY2d 1038 [1997];People v Bernard, 214 AD2d 578 [1995], lv denied 85 NY2d 969 [1995]).
In any event, any error in any of the challenged evidentiary rulings would be harmless giventhe overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]). Inaddition to proof that both victims were scheduled to testify against defendant in the upcomingcriminal trial, the People also presented proof that a car rented for defendant's use the nightbefore the murders had been driven approximately 600 miles between then and the day after themurders, defendant's fingerprint was found inside this rental car, and the keys to it were foundhidden under his mattress. In addition, the soles of his shoes perfectly matched footprints at themurder scene (including a piece of tape stuck to the bottom of one shoe), fibers on these shoeswere consistent with carpet fibers inside the victims' home and two men generally fitting thedescription of defendant and Williams were seen fleeing the murder scene within minutes of a911 call by the teenage victim reporting "a man in [her] house." Furthermore, cell phone recordsplaced defendant and Williams traveling north from the Baltimore, Maryland, area throughoutthe evening of the murders (with one such record placing Williams 80 miles from Binghamton atapproximately 9:00 p.m.), Williams was ultimately identified from a lineup as one of thesefleeing men and the victims were killed with a 9 millimeter semiautomatic pistol that had beengiven to defendant by a friend the day before the murders.
Finally, we are unpersuaded that County Court erred in denying a CPL 330.30 motionwithout a hearing or that defendant's sentence is harsh and excessive.
Peters, J.P., Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Williams was likewise foundguilty following a separate jury trial (People v Williams, 45 AD3d 905 [2007]).
Footnote 2: After approximately 40 minutes,defendant requested to speak with his attorney and all questioning ceased.