| People v Reid |
| 2011 NY Slip Op 02488 [82 AD3d 1495] |
| March 31, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Lamarr Reid, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered June 1, 2007, upon a verdict convicting defendant of the crime of murder in the seconddegree.
In June 2001, defendant and Shahkene Joseph, also known as "Shottie," intended to rob anapartment where marihuana was regularly sold. When the victim opened the door with a BB gunin hand to ward off a stray dog, he apparently saw defendant and Joseph, causing the victim topush the door closed. Defendant and Joseph then fired weapons through the door, with a shotgunblast hitting the victim's shoulder and a rifle bullet fatally striking him in the neck. After aninvestigation that ran cold for several years, police obtained a statement from Joseph explainingthat he and defendant attempted the robbery and, in the process, killed the victim. Joseph wastried separately and convicted of murder; this Court affirmed his conviction (People v Joseph, 68 AD3d 1534[2009], lv denied 14 NY3d 889 [2010], cert denied 562 US —, 131 S Ct797 [2010]). A jury found defendant guilty of intentional murder, resulting in a sentence of 25years to life. Defendant appeals.
Initially, the introduction to the grand jury of some improper evidence did not requiredismissal of the indictment. The remaining evidence was sufficient to support the charges and theerror was not likely to impair the integrity of the proceeding (see People v Huston, 88NY2d 400, 409 [1996]).[*2]
The conviction was supported by legally sufficientevidence and not against the weight of the evidence. A defendant's admissions alone are notsufficient to convict, but the corroborating evidence need only tend to prove that the chargedcrime was committed by someone (see CPL 60.50); "no additional proof need connectthe defendant with the crime" (People v Lipsky, 57 NY2d 560, 571 [1982]). Here, awitness testified that he was in the apartment when the victim went to the door, the victim madean exclamation of surprise and tried to close the door, several shots were fired and the victim fellback from the door. It was undisputed that the victim was fatally shot, thereby proving that thecrime was committed. This evidence, when paired with testimony from two of defendant'sfriends that he admitted—with verifiable details—the attempted robbery and killing,was sufficient to establish that he committed murder. His intent may be inferred from his actionsand the surrounding circumstances (seePeople v Molina, 79 AD3d 1371, 1376 [2010]; People v Malcolm, 74 AD3d 1483, 1484 [2010], lv denied15 NY3d 954 [2010]). While the jury could have found that defendant merely acted recklessly oras a result of surprise when the victim opened the door with a weapon, the jury also could havefound that when the victim impeded defendant's ability to enter the apartment to commit arobbery, defendant formed a conscious objective to kill him (see People v Joseph, 68AD3d at 1536). We accept the jury's credibility determinations, which favored the prosecutionwitnesses and the belief that defendant admitted his participation in the crime (see People vMalcolm, 74 AD3d at 1485). Considering the circumstances, including defendant's actions inshooting through the closed door at the retreating victim and later bragging about the killing, theweight of the evidence supported the jury's verdict.
County Court properly admitted the letters written by defendant. The People were notrequired to provide pretrial notice because the statements were made to his girlfriend and brother,not to a public servant (see CPL 710.30). While defendant now contends that he wasentitled to a Mapp hearing to determine if some of the letters were illegally seized fromhim, he did not preserve this argument by clearly articulating to the trial court that he wasrequesting this relief. The court did not coerce defendant into stipulating that he wrote the letters.Defendant and his counsel made a strategic choice to acknowledge his authorship, given that along-time friend had identified the handwriting as defendant's and the People could have called acorrection official to testify that defendant was in the particular prisons from which the letterswere mailed. He withdrew his request to redact the addresses, which was reasonable because thejury was aware that he was in prison. The court did not abuse its discretion in denyingdefendant's request to redact a picture of a tombstone and the phrase "catching bodies" from oneletter. Defendant's use of that phrase in a letter contradicted his grand jury testimony that he wasunfamiliar with the phrase and supported a witness's testimony that defendant used thephrase—which means to kill someone—in reference to the instant crime. Thetombstone, while potentially prejudicial, was also somewhat relevant to the context of the letterin this murder case. Accordingly, the court did not err in admitting the letters.
Defendant is entitled to a new trial because his constitutional right to confront witnesses wasviolated. After defense counsel questioned an investigator about whether he had receivedinformation implicating an individual named Charles McFarland in this murder, the prosecutorasked whether the investigator "also received eye witness testimony about who exactly was at themurder" and whether "that eye witness testimony was that Charles McFarland certainly wasn'tthere." Defendant objected because no eyewitness testified to seeing the shooters. The individualwho was inside the apartment testified as an eyewitness, but he did not see who was outside theapartment. The obvious implication, as counsel correctly argued, was that Joseph was theeyewitness (see People v Nesbitt, 77AD3d 854, 856 [2010], lv denied 15 NY3d 954[*3][2010]; People v Fairweather, 69 AD3d 876, 877 [2010]). Such animplication was improper, however, because Joseph was unavailable to testify (see Bruton vUnited States, 391 US 123, 127-128 [1968]). Because Joseph was unavailable and hispretrial statement to the police regarding who was present at the murder scene was testimonial,admission of that statement violated defendant's right to confront his accusers (see Crawfordv Washington, 541 US 36, 53-54 [2004]; People v Rawlins, 10 NY3d 136, 147-148 [2008]).
The People contend that defendant opened the door to these questions by asking theinvestigator whether he had interviewed anyone who indicated that McFarland was involved. Togive the jury a more complete picture, the prosecutor could have properly inquired as to whetheran individual had told the investigator that McFarland was not involved. The problem is that thePeople asked about whether an "eyewitness" gave such information, thereby raising theimplication that Joseph gave a statement excluding McFarland and, presumably, identifyingdefendant as an involved party. The additional evidence elicited by the People should have beenlimited to what was necessary to address the information brought out by defendant's questioning(see People v Melendez, 55 NY2d 445, 452-453 [1982]). The questions here exceededthe permissible boundaries.
"Confrontation Clause violations are subject to a constitutional harmless error analysis,"requiring reversal "unless the error's impact was 'harmless beyond a reasonable doubt' " (People v Hardy, 4 NY3d 192, 198[2005], quoting People v Eastman, 85 NY2d 265, 276 [1995]). Here, there is areasonable possibility that the error might have played a part in defendant's conviction. The onlyproof linking defendant to this murder was the testimony of his friends—themselvescriminals, testifying in exchange for some benefit—relating admissions that defendantmade to them. The possibility that the jury was influenced by testimony regarding an eyewitnesswas demonstrated by its request for a read-back of the investigator's "testimony regarding eyewitness or witnesses regarding any eye witness statement." Because the evidence was less thanoverwhelming and there is a reasonable possibility that the improper mention of an eyewitnessstatement in violation of defendant's right of confrontation may have contributed to the jury'sverdict, the error was not harmless (see People v Hardy, 4 NY3d at 198-199; People vNesbitt, 77 AD3d at 856).
Given our reversal, we need not address defendant's remaining arguments.
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is reversed,on the law, and matter remitted to the County Court of Albany County for a new trial.