| People v Muller |
| 2010 NY Slip Op 03179 [72 AD3d 1329] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William H.Muller Jr., Appellant. |
—[*1]
Kavanagh, J. Appeal from a judgment of the County Court of Columbia County (Nichols,J.), rendered June 19, 2007, upon a verdict convicting defendant of the crime of murder in thefirst degree (two counts).
Defendant was charged by indictment with two counts of murder in the first degree inconnection with the fatal shooting in June 2006 of his estranged wife's parents, Dennis Lynch(hereinafter Lynch) and Carolyn Lynch in their Columbia County home. After a jury trial,defendant was convicted as charged and sentenced to life in prison without parole. Defendantnow appeals, arguing that County Court erred by (1) precluding him from asserting as a defenseat trial that at the time of the shooting, he was acting under the influence of an extremeemotional disturbance, (2) placing improper restrictions on the cross-examination of hisestranged wife when she testified at trial, (3) permitting an inmate housed with him prior to trialin the Columbia County jail to testify that defendant had made gestures that constituted anadmission of guilt, and (4) refusing to compel the prosecution to disclose recordings of telephoneconversations involving defendant while he was incarcerated awaiting trial. Defendant alsoclaims that the sentence imposed for these two murder convictions was harsh and excessive.
On the night of June 27, 2006, defendant went to the home of his in-laws armed with a [*2]loaded pump-action shotgun looking for his estranged wife. Afterhe arrived at the premises, defendant was confronted by Lynch and, moments later, three shotswere discharged from the shotgun mortally wounding Lynch and his wife. What transpiredimmediately prior to and at the time of the shooting was the subject of dramatically differenttestimony given at trial by defendant and his estranged wife. Defendant denied harboring any illwill toward his in-laws and claims that he went to their home to commit suicide in front of hiswife who was seeking a divorce. He admits being armed with a loaded shotgun, but claims thatthe weapon accidentally discharged three times during a physical struggle that he had withLynch shortly after he arrived at the premises. Defendant's wife, who was present in the home atthe time of the shootings, claims that defendant came to her parents' home intending to kill herand, while there, executed her two parents when they sought to intervene on her behalf.
The principal issue raised by this appeal concerns County Court's decision to bar defendantfrom asserting as an affirmative defense that he was acting under the influence of an extremeemotional disturbance (hereinafter EED) when he fired the rounds from the shotgun that causedthe death of his in-laws (see Penal Law § 125.25 [1] [a]; § 125.27 [2] [a]).This decision to preclude this defense from being offered at trial was prompted by defendant'sfailure during the months leading up to trial to file a notice regarding this defense ascontemplated by statute and by his subsequent refusal to comply with conditions established bythe court that would have permitted him to assert this defense at trial despite the defects in hisnotice.
A criminal defendant who intends to offer evidence in support of a psychiatric defense mustfile a notice to that effect within 30 days of his arraignment on the indictment (see CPL250.10 [2]). This notice must "contain enough information to enable the prosecution and thecourt to discern the general nature of the alleged psychiatric malady and its relationship to aparticular, proffered defense" (People v Almonor, 93 NY2d 571, 581 [1999]). Here,defendant filed a form entitled "Notice of Intent to Present Psychiatric Evidence," which failed tospecify the psychiatric defense that he would pursue at trial and did not describe the mentalinfirmity upon which this claim would be based or how it related to any psychiatricevidence.[FN1]
Upon receipt of this notice—and over the next five months—the prosecutionsent defendant's counsel a series of letters pointing out that the notice was not only untimely, butalso inadequate and, as such, did not satisfy defendant's obligations under the statute.[FN2]When defendant failed to provide any additional information regarding the proposed defense, theprosecution on January 8, 2007—two months prior to the commencement oftrial—filed a motion to preclude defendant from asserting any psychiatric defense at trialor from introducing any [*3]evidence regarding psychiatrictreatment that defendant may have received prior to the incident. In an apparent response to thismotion, defendant, on February 7, 2007—almost four months after his arraignment on theindictment—filed a one-page document entitled "CPL 250.10 Supplemental Notice,"which stated that he would "present lay witness evidence only concerning the affirmativedefense of extreme emotional disturbance." Again, defendant did not provide any detailsregarding the content of this proposed testimony nor did he identify the existence of any mentalinfirmity or what role such infirmity played in his decision to deliberately shoot and kill Lynchand Lynch's wife (see People vSmith, 1 NY3d 610, 612 [2004]; People v Roche, 98 NY2d 70, 75 [2002]; People v LeFebvre, 45 AD3d1175, 1175-1176 [2007]; seegenerally People v Ross, 34 AD3d 1124, 1125 [2006], lv denied 8 NY3d 879[2007]).
One month prior to trial, defendant's counsel for the first time disclosed that the EED defensehe was seeking to assert was based upon defendant's history of depression, suicidal ideation andprior suicide attempts, and would be established by "the actual observation of the witnesses ofthe behavior of the defendant at those points in time. In other words, his actual attemptsto—his actual threats or attempts to take his life. At this juncture, I don't even plan tosubmit the psychiatric record from the Ellis Hospital or Columbia Hospital because I wouldthink they're superfluous. I don't need an expert, no one needs an expert in this case tounderstand that a defendant, or anybody else who is suffering from prolonged depression and hastried to commit suicide at least twice, is under extreme emotional disturbance."[FN3]
Despite the fact that defense counsel did not describe how defendant's depression and hisattempts at suicide were causally related to the shooting and did not account for the significantdelay incurred in providing this information to the prosecution, County Court decided to allowdefendant to assert an affirmative defense at trial based on the existence of an EED. However,the court put in place certain conditions that had to be met by defendant or he would beprecluded from raising this defense at trial. In that regard, the court specified that defendant hadto provide the prosecution with an amended/supplemental notice in writing of its intent to assertthis defense and to submit to a psychiatric evaluation by an expert employed by the prosecution(see CPL 250.10 [3]). When defendant failed to comply with either condition, andcontinued to refuse to disclose any records regarding psychiatric treatment he had received priorto the shootings or any relevant hospitalizations, County Court issued an order precluding himfrom offering an EED as an affirmative defense at trial and barred the admission of any laytestimony regarding his prior suicide attempts, depression or hospitalizations.[FN4][*4]
Initially, we note that the notification process containedin the statute "is designed to create a format by which psychiatric evidence may be prepared andpresented manageably and efficiently, eliminating the element of surprise. With that in mind theLegislature has formulated a procedure that depends upon proper notification, adversarialexamination, and preclusion when appropriate" (People v Almonor, 93 NY2d at577-578 [emphasis added]; see People v Berk, 88 NY2d 257, 263-264 [1996], certdenied 519 US 859 [1996]; Peoplev Green, 60 AD3d 1320, 1321 [2009], lv denied 12 NY3d 915 [2009];People v LeFebvre, 45 AD3d at 1175-1176). Here, defendant not only filed a notice thatwas untimely and inadequate, but, throughout the period leading up to trial, he repeatedlyignored legitimate requests made by the prosecution for more information regarding the specificsof this psychiatric defense. As a result, County Court made a measured effort to balance theprosecution's need for this information with defendant's right to offer this defense at trial. Giventhis context, its decision to put in place certain conditions that had to be met for defendant to berelieved from the defects contained in his notice represented a sound exercise of the court'sdiscretion, and defendant's failure to comply with these conditions left the court with no choicebut to preclude him from asserting this affirmative defense (see People v Almonor, 93NY2d at 581; People v Aska, 91 NY2d 979, 981 [1998]; People v Berk, 88NY2d at 265-266; People v Heath,49 AD3d 970, 972 [2008], lv denied 10 NY3d 959 [2008]; People v Umali, 37 AD3d 164,165 [2007], lv denied 8 NY3d 991 [2007]; People v Conley, 11 AD3d 706, 707 [2004], lv denied 4NY3d 742 [2004]; People v Lewis, 302 AD2d 322 [2003], lv denied 100 NY2d540 [2003]).
Defendant argues that any preclusion order issued by County Court should have been limitedto expert medical testimony that he sought to introduce in support of this psychiatric defense andshould not have included lay testimony regarding his attempts at suicide or his chronic state ofdepression. In that regard, CPL 250.10 (5) provides that if a defendant refuses to submit to anexamination by the prosecution's psychiatrist, the court may only preclude the defendant's expertpsychiatric testimony and that all other evidence, if competent, shall be admitted with anappropriate instruction to the jury regarding the defendant's failure to cooperate with theprosecution in its examination. However, this statutory provision is based on the assumption thatthe defendant has otherwise complied with his or her statutory obligations and has not, as hasthis defendant, engaged in a course of conduct during the period leading up to trial that wasclearly designed to deny the prosecution access to any meaningful information regarding thedetails of this proposed offense. "[T]he statutory language of preclusion for failure to complywith the notice provision contemplates a bar of the defense, in toto, in the absence of therequisite notice of intent by the defense, not only the preclusion of expert testimony to supportit" (People v Diaz, 62 AD3d157, 165 [2009], lv granted 12 NY3d 924 [2009]). Based on these facts, we are ofthe view that County Court did not abuse its discretion in issuing an order that, in effect,precluded defendant from asserting a defense based on an EED.
Moreover, even if we were to conclude that County Court did not have an appropriate basisto preclude defendant from asserting this defense based on the existence of an EED, defendantwould not have been prejudiced because he has never established that the requisite elements ofsuch a defense in fact exist. In that regard, defendant sought to offer testimony from laywitnesses, as well as medical records to establish that at the time of the shootings he was suicidaland depressed. However, while expert testimony is not an essential prerequisite for establishingthe existence of such a defense (see People v Smith, 1 NY3d at 612), defendant was stillobligated to prove that a relevant connection existed between his claimed mental infirmity andhis decision to deliberately shoot and kill two innocent people (see id.; People vRoche, 98 NY2d at 75; People v Casassa, 49 NY2d 668, 677-678 [1980], certdenied 449 US 842 [1980]). [*5]Not only has defendantfailed to state how he would establish that such a connection existed, but his task in that regardwas made even more problematic by statements he made after the shooting but prior to hisarrest,[FN5]and sworn testimony he gave at trial, as well as arguments made on his behalf during theprosecution and on this appeal—all of which are manifestly inconsistent with the essentialelements of this psychiatric defense. Throughout this process, defendant has consistentlymaintained that this shooting was accidental—that this pump action shotgun inadvertentlydischarged three times during his struggle with Lynch accidently killing Lynch and hiswife—and has never acknowledged either personally or through counsel that hedeliberately shot and killed the two victims while under the influence of an EED. In short, hiscontention that these shootings were the result of a tragic accident is so at odds with any claimthat he deliberately shot and killed the two victims while under the influence of an EED, that itmakes his assertion of such an affirmative defense inherently implausible, and underscores thelegal insufficiency of the evidence previously submitted by him in support of it (see People vSmith, 1 NY3d at 612; People v White, 79 NY2d 900, 903 [1992]).
Defendant also argues that County Court erred by not allowing him to submit evidenceregarding his prior suicide attempts and psychiatric hospitalizations to establish that he went tothe victims' home to commit suicide, not murder. Initially, we note that the introduction of suchevidence, assuming it was relevant, would have entitled the prosecution to access to any medicalrecords regarding psychiatric treatment received by defendant before the shootings as well asthose generated by his April 2006 hospitalizations. Defendant has never provided these records,and that failure would obviously have some impact upon the admissibility of such evidence.Moreover, defendant's failed attempts at suicide and prior hospitalizations were only marginallyrelevant to defendant's core contention made at trial, and County Court properly exercised itsdiscretion in limiting the admissibility of such evidence.[FN6]
We find no error in the restrictions placed by County Court on defendant's cross-examinationof his estranged wife, or that its rulings in some way prevented defendant from establishing thathis wife was hostile towards him or that this hostility might have in some way affected her trialtestimony (see People v Wallace,60 AD3d 1268, 1269-1270 [2009], lv denied 12 NY3d 922 [2009]; People vOrtega, 292 AD2d 792, 793 [2002], lv denied 98 NY2d 679 [2002]). In this regard,we note that his wife was subjected to an extensive cross-examination at trial, which includedquestions regarding her relationship with another man and her request for equitable distributionof the parties' assets in a pending action for divorce. While some limits were placed on counselby the court in his cross-examination of defendant's wife, it is simply inconceivable, given theattendant circumstances, that a juror would not recognize that his wife harbored an animusagainst defendant and would be hostile towards him (see People v Corby, 6 [*6]NY3d 231, 234 [2005]; People v Gosso, 41 AD3d 206, 207 [2007], lv denied 9NY3d 876 [2007]; People v McNamara, 304 AD2d 908, 909 [2003]; People vKrug, 282 AD2d 874, 879 [2001], lv denied 98 NY2d 652 [2002]).
Furthermore, the prosecution was not obligated to provide defendant with recordings oftaped telephone conversations he had with third parties while in jail awaiting trial. Suchdisclosure would be required if the prosecution intended to introduce the tape recordings intoevidence at trial even if these recordings were not "made during the course of the criminaltransaction" (CPL 240.20 [1] [g]). However, the prosecution did not seek to introduce anyportion of these recordings as evidence-in-chief at trial but, instead, used these recordings toimpeach or refresh the recollection of witnesses who participated in these conversations andtestified at trial (see People v Farmer, 198 AD2d 805, 807 [1993], lv denied 83NY2d 804 [1994]; see also People vPerry, 70 AD3d 1063, 1064 [2010]).
Defendant also claims that it was reversible error to allow Peter Rupp, his jail cellmate, todescribe certain gestures he claimed defendant made while they discussed the shootings. Thegestures as testified to by Rupp were admissible as an integral part of a conversation he had withdefendant regarding the shootings (see People v Campney, 94 NY2d 307, 311-312[1999]; People v Lourido, 70 NY2d 428, 433 [1987]). Moreover, County Court limitedRupp's testimony to a description of the gestures, as well as to when, how and in what contextthey were made, while refusing to allow the witness to testify to his interpretation of theirmeaning.
Finally, defendant's sentence was not harsh or excessive. He stands convicted of theintentional murder of his wife's parents in the presence of his two-year-old son. We know of nocircumstance in this record, given the gravity of the underlying crimes, which would warrant amodification of the sentence imposed by County Court (see People v Caruso, 34 AD3d 863, 864-865 [2006], lvdenied 8 NY3d 879 [2007]; Peoplev Walker, 12 AD3d 1107, 1108 [2004], lv denied 4 NY3d 804 [2005]).
Peters, J.P., Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The notice was also untimelybecause it was not served on the prosecution until 32 days after defendant was arraigned on theindictment.
Footnote 2: In a letter dated November 22,2006, defense counsel acknowledged receipt of the prosecution's demands for more informationregarding the proposed affirmative defense and stated, "I wish to assure you that there will be nolast minute surprise regarding psychiatric evidence. You will be provided the specificity youseek in an amended CPL 250.10 (2) notice as it becomes available and necessary"(emphasis added).
Footnote 3: According to defense counsel,in April 2006 defendant was hospitalized at Columbia Hospital and Ellis Hospital after heallegedly attempted suicide. Defendant, despite repeated requests from the prosecution, hasfailed to provide the medical records generated by these hospitalizations or provide anydocumentation as to psychiatric treatment that he received during the relevant time period.
Footnote 4: Defendant does not deny thatthe prosecution made timely demands for these materials and that he never sought a protectiveorder relieving him from the obligation to provide the prosecution with these medical records(see CPL 240.30).
Footnote 5: After the incident and beforebeing arrested, defendant made a statement to his cousin to the effect that he went to the Lynchresidence with a loaded shotgun, became involved in a struggle with Lynch and, during thatstruggle, the weapon discharged.
Footnote 6: Defendant was permitted totestify to a suicidal ideation at the time of the incident and was allowed to introduce evidence, ifit existed, of any suicide attempts that occurred within four days of the shootings.