| People v Burkett |
| 2012 NY Slip Op 09098 [101 AD3d 1468] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Daiman H.Burkett, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.),rendered September 9, 2010, upon a verdict convicting defendant of the crimes of murder in thesecond degree and criminal possession of a weapon in the third degree.
At approximately 5:45 a.m. on February 26, 2009, paramedics and then police responded to a911 call from the home of Des-Hawn Parker in the City of Troy, Rensselaer County. Uponarrival, they encountered defendant, Parker's former boyfriend, covered in blood, wearing onlytrousers and pacing outside; defendant brandished a knife and aggressively advanced at them.Officers subdued defendant and entered the home, where paramedics found Parker's frightenedbut unharmed children on the first floor; they followed a trail of blood to a basement bedroom,where they discovered Parker's lifeless but still warm body on her bloodied bed. Parker had noknife wounds or defensive wounds but had sustained fatal blunt force trauma to her neck and,despite resuscitation efforts, was pronounced dead. An autopsy determined that the cause ofdeath was asphyxiation due to manual strangulation, and that death had occurred at 3:00 a.m. to4:00 a.m. The mostly superficial slicing wounds to defendant's chest, arms and ankles were notlife threatening and were determined to have been self-inflicted, as the defense conceded at trial,and he had no defensive wounds. DNA tests determined that defendant was the source of theblood in the house and on [*2]the victim's neck. Following a jurytrial, defendant was convicted of intentional murder in the second degree and criminal possessionof a weapon in the third degree. Sentenced to an aggregate prison term of 25 years to life,defendant now appeals.
Defendant's convictions were not against the weight of the credible evidence. Even were weto conclude that an acquittal would not have been unreasonable, upon weighing the conflictingtestimony while viewing it in a neutral light, we are persuaded that the jury was fully justified infinding defendant guilty beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633,636 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Specifically, citing the lack ofeyewitnesses to the strangulation or a confession, defendant claims that the proof was inadequateto establish either his identity as the killer, his intent to kill (see Penal Law §125.25 [1]) or his intent to use the knife unlawfully against a police officer (see PenalLaw §§ 265.01 [2]; 265.02 [1]).
Defendant's unlawful purpose in displaying the knife was readily inferable from histhreatening and aggressive conduct during his encounter with police (see People v Jackson, 38 AD3d1052, 1054 [2007], lv denied 8 NY3d 986 [2007]). Defendant refused repeatedpolice directives to drop the knife and when a police officer approached trying to calm him,defendant advanced several steps toward the officer, forcing him to draw his weapon; defendantrepeatedly warned emergency personnel not to come any closer, indicating that they would not bepermitted to go inside, while brandishing the knife with the blade pointing up, instilling fear inthe officers, and he advanced at them a second time. The foregoing established defendant'sunlawful intent in possessing the knife (see id.; see also People v Purvis, 90 AD3d 1339, 1341 [2011], lvdenied 18 NY3d 997 [2012]).
With regard to defendant's murder conviction, his identity as the perpetrator was establishedby his presence at the scene, his blood throughout the first floor and basement, and the presenceof DNA consistent with defendant's DNA on the victim's neck.[FN1]The victim's son, who did not witness or hear the murder, testified that he observed defendantwashing his hands and a knife in the first floor bathroom at the time that emergency personnelarrived. There was no sign of forced entry, supporting the conclusion that Parker had admitteddefendant to her home as she had done in the past. Indeed, additional evidence persuasivelyestablished "that the only person in the victim's life who had such a motive and posed a genuinethreat to her physical well-being at the time of her death was defendant" (People v Thibeault, 73 AD3d1237, 1239 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US—, 131 S Ct 1691 [2011]). Likewise, the manner of death firmly established that hisconscious objective was to kill Parker (see People v Steinberg, 79 NY2d 673, 682[1992]; People v Scott, 47 AD3d1016, 1017-1019 [2008], lv denied 10 NY3d 870 [2008]; see also People vSmith, 79 NY2d 309, 315 [1992]; People v Barnes, 50 NY2d 375, 381 [1980]). Themedical examiner testified that the victim would have lost consciousness in about 15 seconds ifsufficient pressure were applied to her neck to completely cut off her blood supply, and that deathwould have occurred only after an additional two to three minutes of continuous appliedpressure. Such violent, protracted conduct by defendant for several minutes after Parker's loss ofconsciousness in continuing to strangle her [*3]stronglysupported the jury's conclusion that his conscious objective was to kill and not merely subdue orinjure her.[FN2]
Moreover, following a detailed Molineux pretrial hearing, County Court properlyadmitted limited testimony regarding defendant's prior abusive, threatening and controllingbehavior against Parker and a former girlfriend, which was relevant and probative of severaldisputed issues other than defendant's criminal propensity, including defendant's identity as theperpetrator and his intent and motive in strangling Parker, and provided necessary backgroundinformation regarding the nature of their relationship, which Parker had tried to terminate and thecontext in which defendant's conduct occurred (see People v Dorm, 12 NY3d 16, 19 [2009]; People vAlvino, 71 NY2d 233, 242 [1987]; People v Thibeault, 73 AD3d at 1240-1241; People v Gorham, 17 AD3d 858,860-861 [2005]; People v Poquee, 9AD3d 781, 781 [2004], lv denied 3 NY3d 741 [2004]). Indeed, "[p]rior bad acts indomestic violence situations are more likely to be considered relevant and probative evidencebecause the aggression and bad acts are focused on one particular person, demonstrating thedefendant's intent, motive, identity and absence of mistake or accident" (People v Westerling, 48 AD3d965, 966 [2008]).
In their Molineux proffer, the People requested testimony from seven witnessesregarding more than 12 instances of defendant's controlling and threatening conduct towardParker and other former girlfriends. The record reflects that County Court addressed the specificinstances to be testified to by each proposed witness, precluding much of the proffer, includingall or parts of the testimony of two of defendant's ex-girlfriends and limiting or excluding thetestimony of three of the victim's close girlfriends, and allowed evidence of only one of twodomestic violence reports that Parker had filed in 2008 against defendant. The court alsoprecluded altogether evidence consisting of voice-mail messages left by Parker for defendant andthreatening statements made by defendant to police the next day because the potential for undueprejudice outweighed their probative value. While the court did not—as to eachwitness—explicitly weigh the probative value of each piece of evidence against itspotential for undue prejudice, our review of the record discloses that the court addressed thepotential testimony of each witness, discussed its relevance, considered case law, and gavespecific reasons for allowing, limiting or excluding certain testimony based upon theMolineux exceptions, the temporal proximity of the events described or the potential forprejudice. Thus, contrary to defendant's claim, the Molineux hearing reflects "a measuredeffort to achieve an appropriate balance" (People v Thibeault, 73 AD3d at 1241) in that"the court, defense counsel and the prosecutor were all aware of the proper legal standard and,after considering separately each bad act sought to be introduced by the People, the courtexcluded [many] bad acts after finding that the prejudicial effect outweighed the probative value"(People v Nash, 87 AD3d 757,759 [2011], lv denied 17 NY3d 954 [2011]; compare People v Wlasiuk, 32 AD3d 674, 676-677 [2006], lvdismissed 7 NY3d 871 [2006]). Moreover, the court in its charge to the jury gave an [*4]appropriate limiting instruction (see People v Dorm, 12NY3d at 19).[FN3]
The evidence, including that properly admitted pursuant to Molineux, providedfurther credible evidence establishing defendant's identity, intent and motive in murderingParker, as well as the nature and status of their relationship at that time (see People vThibeault, 73 AD3d at 1239-1241). The testimony of Parker's two long-term girlfriends, newboyfriend and son established that Parker had dated defendant on and off for about six years andthat, in late 2008 and early 2009 leading up to her death, Parker had broken it off but defendanthad refused to allow Parker to do so, repeatedly calling or showing up at her work place or at herhome in the middle of the night after being told not to come and that she wanted to finally endtheir relationship. The testimony established that defendant was verbally abusive, jealous of hernew boyfriend and had made threats against him and Parker and wanted to move in with her andhave a family. Parker was fearful of defendant and had taken safety measures, but continued toanswer his calls and admit him to her home, including late at night, in an effort to terminate theirrelationship on good terms and out of concern that he would wake her neighbors or children orwould harm her family, home or car.[FN4]
We also find no error in that part of County Court's ruling permitting defendant's formergirlfriend to testify to an incident in 2001, after she had terminated their relationship, in whichdefendant snuck into her home and disabled her phone; unsuccessful in his attempts to persuadeher to resume their relationship, defendant assaulted and then choked her to the point ofunconsciousness in the presence of their toddler and thereafter refused to allow her to leave. Thisevidence, while prejudicial, revealed a distinctive pattern of criminal conduct toward womenwho had attempted to sever ties with him and was properly admitted to establish defendant'sidentity and motive as Parker's murderer (see People v Doyle, 48 AD3d 961, 964 [2008], lv denied 10NY3d 862 [2008]). Significantly, Parker's son testified that he had intervened during an incidentmonths prior to her death in which defendant had choked the victim in her bedroom. In view ofall of the foregoing, we find that the verdict was, in all respects, supported by the weight ofcredible evidence (see People v Danielson, 9 NY3d at 348).
Defendant's claim that County Court erred in failing to charge the additional lesser includedoffense of manslaughter in the second degree is foreclosed, because defendant was in factconvicted of second degree murder as charged in the indictment and the jury never reached thenext lesser included offense of manslaughter in the first degree which was included in the [*5]court's charge (see People v Cordato, 85 AD3d 1304, 1307-1308 [2011], lvdenied 17 NY3d 815 [2011]; Peoplev Waugh, 52 AD3d 853, 855 [2008], lv denied 11 NY3d 796 [2008]). "[W]herea court charges the next lesser included offense [manslaughter first] of the crime alleged in theindictment [murder second], but refuses to charge lesser degrees than that, . . .defendant's conviction of the crime alleged in the indictment forecloses a challenge to the court'srefusal to charge the remote lesser included offenses [manslaughter second]" (People vBoettcher, 69 NY2d 174, 180 [1987]).
Given the brutal and senseless nature of this murder, which deprived two children of theirmother, as well as defendant's lengthy criminal history, lack of remorse and pattern of domesticviolence against women, we find no extraordinary circumstances or abuse of discretion in thesentence imposed by County Court. Finally, restitution was authorized for the victim's funeralexpenses paid in part by the Office of Victim Services and in part by her former boyfriend (thefather of her surviving children), as the victim's representative (see Penal Law §60.27 [1], [4] [b]; Executive Law § 621 [6]; People v Morrishaw, 92 AD3d 1088, 1088-1089 [2012], lvdenied 18 NY3d 996 [2012]; People v Robinson, 262 AD2d 795, 795 [1999], lvdenied 93 NY2d 1045 [1999]; People v Yong Ho Han, 220 AD2d 632, 633 [1995]).
Defendant's remaining claims lack merit.
Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The victim's current boyfriendand her former boyfriend, the father of her children, were each excluded as DNA contributorsand no evidence pointed to either of them or anyone else as the perpetrator.
Footnote 2: Defendant did not raise theaffirmative defense of extreme emotional disturbance (see Penal Law § 125.25 [1][a]) and, contrary to his claims, his self-inflicted superficial wounds and behavior when policearrived were more suggestive of an attempt to feign despair and fabricate an exculpatory crimescenario and did not undermine a finding regarding defendant's ability to form intent.
Footnote 3: While we have said that a courtshould ordinarily give a contemporaneous limiting instruction at the time uncharged bad actevidence is elicited (see People v Westerling, 48 AD3d at 967; People v Gorham,17 AD3d at 861 n; see also People v Santarelli, 49 NY2d 241, 254 [1980]), no request forsuch an instruction was made here.
Footnote 4: While some of the backgroundinformation consisted of hearsay statements of the victim or was based thereon, no hearsayobjections were raised during trial but, in any event, the testimony was admissible on the issue ofthe victim's state of mind related to and fear of defendant and to explain her behavior toward him(see People v Thibeault, 73 AD3d at 1241-1242).