| People v Oxley |
| 2009 NY Slip Op 06048 [64 AD3d 1078] |
| July 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Wayne T.Oxley Jr., Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Heather M. Abissi and Deidre A. Chuckrow,New York State Prosecutors Training Institute, Albany, of counsel), for respondent.
Kane, J. Appeals (1) from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 18, 2006, upon a verdict convicting defendant of the crime ofmurder in the second degree, and (2) by permission, from an order of said court, enteredDecember 24, 2007, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
Following a lengthy trial, defendant was convicted of intentional murder in the seconddegree for beating the victim to death with a baseball bat. County Court imposed the maximumsentence and later denied, without a hearing, defendant's motion to vacate the judgment ofconviction. Defendant appeals both his conviction and the denial of his postconviction motion.Of the myriad arguments defendant raises, we address only dispositive issues and some thatcould arise on a retrial.
The evidence was legally sufficient to support the conviction and the verdict was not againstthe weight of the evidence. While defendant contends that County Court committed numerousevidentiary errors, we must review the legal sufficiency and weigh arguments based [*2]only upon the evidence admitted at trial. Viewing the direct andcircumstantial evidence in a light most favorable to the People, the jury could have rationallyfound that all of the elements of the crime were established beyond a reasonable doubt (seePeople v Danielson, 9 NY3d 342, 349 [2007]; People v Grassi, 92 NY2d 695, 697[1999]). Medical evidence showed that the victim was beaten in the head with multiple blows,causing death by blunt force trauma. Hours after the victim's death, the police found a baseballbat in defendant's basement. The bat had the victim's hair and blood on it, as well as forensicevidence that was consistent with defendant's DNA. A neighbor testified that she saw defendantwalking toward the victim's house on the night the victim died. Other witnesses testified thatdefendant was suffering from personal problems and a crack cocaine addiction, and he was upsetwith the victim for cheating him on recent drug transactions. An inmate testified that defendantmade a jailhouse admission to the crime. This evidence was legally sufficient to support theconviction. While we find that a different result would not have been unreasonable, afterweighing the conflicting testimony and competing inferences to be drawn therefrom, whilegiving deference to the jury's credibility determinations of the numerous witnesses—manyof whom had dubious credibility—the verdict was not against the weight of the evidence(see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69NY2d 490, 495 [1987]; People v Heath, 49 AD3d 970, 972 [2008], lv denied 10NY3d 959 [2008]).
County Court did not err in denying defendant's suppression motion. After defendantconsented to a search of his home, both orally and in writing, he spoke to police officers and theacting District Attorney. While police were searching, defendant was moving freely about hishouse. During this time, defendant yelled out his window to a passing friend, "Hey, I need alawyer in here." According to the acting District Attorney, defendant made this comment in ajoking manner and they both laughed afterward. Defendant did not make this statement to apolice officer or prosecutor, did not follow up on his alleged request for counsel with anyofficial, and continued to move about his house and speak to the authorities in the same manneras before he yelled out the window. Considering all of the circumstances, the court reasonablyfound that defendant did not make an unequivocal request for counsel to the authorities (seePeople v Glover, 87 NY2d 838, 839 [1995]; People v Fridman, 71 NY2d 845, 846[1988]; People v Thompson, 153 AD2d 456, 460-461 [1990], lv denied 76 NY2d867 [1990]). Even if his statement was construed as a request for counsel, such request wouldnot have invalidated the prior consent to search his house (compare People v Esposito,68 NY2d 961, 962 [1986]; People v Loomis, 255 AD2d 916, 917 [1998], lvdenied 92 NY2d 1051 [1999]; People v Tremblay, 77 AD2d 807, 807-808 [1980]).Additionally, defendant's later waiver of his Miranda rights would have overridden anynoncustodial request for counsel (see People v Thompson, 153 AD2d at 461-462). HisMiranda waiver was signed approximately an hour after he yelled out the window, hewas still not in custody, had voluntarily agreed to accompany officers to the police station, wasnever handcuffed, was transported in the front seat of an unmarked car, walked away fromofficers and spoke to a neighbor before getting into the car, and different officers obtained theMiranda waiver than had spoken to him at his house. Thus, even if his yelling out thewindow constituted a request for counsel, his noncustodial waiver of that request was attenuatedand his subsequent statements were admissible (cf. People v Chapple, 38 NY2d 112, 115[1975]; People v Logan, 19 AD3d 939, 941-942 [2005], lv denied 5 NY3d 830[2005]; see also People v Odell, 26 AD3d 527, 528-529 [2006], lv denied 7NY3d 760 [2006]).
County Court correctly received into evidence John Shannon's testimony from the [*3]preliminary hearing. Shannon was subject to cross-examination atthe preliminary hearing but he died shortly thereafter, making him unavailable at the time oftrial. Because an adequate opportunity for cross-examination was provided at the hearing, andany limitations were due to defendant's failure to fully avail himself of that opportunity,Shannon's preliminary hearing testimony was admissible at trial (see CPL 670.10;People v Gilhooley, 108 App Div 234, 236-237 [1905], affd 187 NY 551 [1907];People v Kizer, 83 Misc 2d 58, 62-63 [1975]; cf. Mancusi v Stubbs, 408 US 204,216 [1972]; compare People v Simmons, 36 NY2d 126, 130-131 [1975]). The trial courthas discretion to permit or limit impeachment of an unavailable witness whose testimony isadmitted into evidence (see People v Bosier, 6 NY3d 523, 528 [2006]). While the courthere limited defendant's impeachment of Shannon, the court admitted certificates of convictionand some testimony that tended to impeach Shannon but was admissible on other issues. Thus,the court did not abuse its discretion in the scope of impeachment concerning Shannon.
County Court erred in excluding evidence of third-party culpability. Before permittingevidence that another individual committed the crime for which a defendant is on trial, the courtis required to determine if the evidence is relevant and probative of a fact at issue in the case, andfurther that it is not based upon suspicion or surmise. Then, the court must balance the probativevalue of the evidence against the prejudicial effect to the People and may, in an exercise of itsdiscretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuseor mislead the jury (see Holmes v South Carolina, 547 US 319, 326-327 [2006];People v Schulz, 4 NY3d 521, 528 [2005]; People v Primo, 96 NY2d 351,355-357 [2001]). The proper procedure is for the court to allow the defense to make an offer ofproof outside the jury's presence addressing its proposed evidence of third-party culpability,allow the People to present counterarguments, then balance the aforementioned considerationsand render a definitive ruling regarding what is admissible (see People v Schulz, 4 NY3dat 528; People v Primo, 96 NY2d at 357).
Here, defendant's proffer included testimony outside the jury's presence, as well as defensecounsel's explanation of the proposed testimony of other witnesses. One witness would testifythat she saw a man called Chase at the scene of the crime and threatening the victim only a fewhours before the murder. Less than 48 hours prior to the murder, Chase had threatened that hewould kill the victim. Six months after the murder, she heard Chase admit that he committed themurder, stating that he made good on his previous threat to beat the victim's brains in with a bat.An inmate incarcerated with Chase was prepared to testify that Chase told him that he, and notdefendant, committed the murder. Another inmate who overheard that conversation was alsowilling to testify. A woman who was apparently living with Chase would testify that a few nightsprior to the murder she went to the victim's house to get away from Chase. When Chaseappeared at the victim's house, the victim refused to let Chase in and threatened Chase with abaseball bat, prompting Chase's response that the victim would be sorry he got involved and thathe was going to get hurt. This occurrence was corroborated by an independent witness, a localcabdriver, who testified that he picked up a man fitting Chase's description at the home whereChase was apparently living, drove him to the victim's house and waited outside, where thecabdriver heard yelling between his fare and an occupant of the house. The fare yelled that thevictim needed to pay the money he owed or he was going to "get beat." Chase testified outsidethe jury's presence and, predictably, denied committing the murder or making the inculpatorystatements attributed to him. County Court struck the cabdriver's testimony and refused to allowthe defense to admit any of this evidence of third-party culpability. The court reached thisdetermination based, at least in part, on the People's arguments that Chase attended a meeting[*4]with his parole officer in Brooklyn at 3:00 p.m. on the dayprior to the murder, Chase's statements were allegedly inadmissible hearsay and Chase's DNAwas not on the bat. In Holmes v South Carolina (547 US at 323), under similarcircumstances, the United States Supreme Court reversed a conviction based upon the trialcourt's improper exclusion of evidence concerning third-party culpability, thereby violating thedefendant's right to " 'a meaningful opportunity to present a complete defense' " (Crane vKentucky, 476 US 683, 690 [1986], quoting California v Trombetta, 467 US 479,485 [1984]; accord Holmes v South Carolina, 547 US at 331).
In the present case, County Court followed the proper procedure by permitting the defense tomake a proffer outside the presence of the jury and allowing the People to argue in opposition.The court abused its discretion, however, in denying defendant the opportunity to present hisevidence which was not merely speculative, but specific and adequately connected Chase to thevictim and scene so that it " 'tend[ed] clearly to point out someone besides [defendant] as theguilty party' " (People v Schulz, 4 NY3d at 529, quoting Greenfield v People, 85NY 75, 89 [1881]; see People v Primo, 96 NY2d at 356-357; compare People vSchulz, 4 NY3d at 529; People v Thomas, 40 AD3d 232, 232 [2007], lvdenied 9 NY3d 869 [2007]; People v Mane, 36 AD3d 1079, 1080-1081 [2007],lv denied 8 NY3d 987 [2007]). By evaluating and relying upon the strength of thePeople's potential rebuttal evidence and Chase's denial, the court usurped the jury's role ofassessing credibility and the relative strength of conflicting evidence, depriving defendant of hisright to present a complete defense (see Holmes v South Carolina, 547 US at 330-331).The evidence proffered by defendant was relevant, specific, adequately linked Chase to thecrime, and would not have resulted in unreasonable delay, prejudice to the prosecution, orconfusion of the jury.
Chase's statements inculpating himself were hearsay, however, rendering them inadmissibleunless some exception exists or the application of the hearsay rule violates defendant'sfundamental right to a fair trial. The elements of the exception for declarations against penalinterest were not met here because Chase was available to give testimony and actually testified,albeit outside the jury's presence (see People v Thomas, 68 NY2d 194, 197 [1986],cert denied 480 US 948 [1987], overruled on other grounds People v Hardy, 4NY3d 192 [2005]). Thus, a strict application of the hearsay rule would prevent admission ofChase's statements. The United States Supreme Court has held that even where an evidentiaryruling was correct under the state's evidentiary rule, the court should still consider whether thatevidentiary rule is " 'arbitrary' or 'disproportionate to the purposes [it is] designed to serve' " suchthat its application "infringed upon a weighty interest of the accused" (United States vScheffer, 523 US 303, 308 [1998], quoting Rock v Arkansas, 483 US 44, 56 [1987];see Hawkins v Costello, 460 F3d 238, 244 [2d Cir 2006], cert denied sub nom.Hawkins v Perlman, 549 US 1215 [2007]; see also Holmes v South Carolina, 547US at 331). As applied here, New York's common-law exception to the hearsay rule fordeclarations against penal interest would permit the admission of Chase's statements only if heasserted his Fifth Amendment right and refused to testify—making himunavailable—but those statements are deemed inadmissible under this particular exceptionif he testifies that he never made the statements. Yet the ability to challenge those statementsthrough cross-examination when the witness testifies provides a better opportunity to test orassure their credibility.
Here, supported by the relevant nonhearsay evidence, the hearsay testimony proffered bydefendant "bore persuasive assurances of trustworthiness" and was critical to his defense(Chambers v Mississippi, 410 US 284, 302 [1973]). "In these circumstances, whereconstitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule[*5]may not be applied mechanistically to defeat the ends ofjustice" (id.). Indeed, this Court has held that where a "statement is exculpatory as to [a]defendant, a less exacting standard applies" in determining whether statements against penalinterest are admissible, and "where the statement forms a critical part of the defense, due processconcerns may tip the scales in favor of admission" (People v Darrisaw, 206 AD2d 661,664 [1994]). Given the importance of Chase's statements to the defense, the other evidencesupporting those statements, and Chase's availability to testify and test the credibility of thosestatements, exclusion of those statements infringed on defendant's weighty interest in presentingexculpatory evidence, thus depriving him of a fair trial (see Chambers v Mississippi, 410US at 302-303; People v Darrisaw, 206 AD2d at 665; cf. Hawkins v Costello,460 F3d at 245). Because the evidence of third-party culpability was improperly excluded,defendant is entitled to a new trial.
Based upon our reversal, we need only address a few additional issues. While defendantcontests the prosecutor's handling of DNA testing on the bat, these alleged shortcomings can beaddressed through cross-examination and go to the weight to be accorded the evidence (seePeople v Wesley, 83 NY2d 417, 436 [1994, Kaye, Ch. J., concurring]; People vWatson, 167 Misc 2d 418, 426 [1995], affd 259 AD2d 380 [1999], lv denied93 NY2d 1029 [1999]). County Court appropriately denied defendant's proposed jury charge onvoluntariness of his statements, which was convoluted and beyond the understanding of a layjury, and instead used a slightly revised version of the CJI charge (see People v Dickson,58 AD3d 1016, 1018 [2009]). We need not address the arguments raised on defendant's CPL440.10 motion, as our remittal for a retrial renders those issues academic.
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of St. Lawrence County for a newtrial. Ordered that the appeal from the order is dismissed, as academic.