| People v Johnson |
| 2013 NY Slip Op 03508 [106 AD3d 1272] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vShawndell Johnson, Also Known as Ramel Voulgaousn, Also Known as Buck, AlsoKnown as Southside, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Phillip W. Mueller of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedJanuary 12, 2011 in Schenectady County, upon a verdict convicting defendant of thecrimes of murder in the first degree, murder in the second degree, attempted robbery inthe first degree (three counts), attempted robbery in the second degree, criminalpossession of a weapon in the second degree (two counts), criminal possession of aweapon in the third degree, reckless endangerment in the first degree and tampering withphysical evidence.
During the early morning hours of September 1, 2008, defendant and hiscohorts—Tyrell Durham and David Dickerson—met up with JenniferDerenzo Williams (hereinafter Derenzo) and her then boyfriend, Christopher Williams, ata Hess gas station in the City of Schenectady, Schenectady County. Defendant wasdriving a blue Lexus that he had borrowed from a friend, and Derenzo was driving arented Toyota Camry. The group, at least some of whom already had been drinking beerand/or smoking marihuana, purchased additional beer and decided to continue partying atthe home of Travis Cellini, where they remained until approximately 4:30 a.m. Afterdeparting Cellini's home, the group—consisting of Derenzo and [*2]Williams in the Camry and defendant, Dickerson andDurham in the Lexus—unsuccessfully attempted to purchase marihuana from alocal "weed spot." The group continued to drive around Schenectady County and, atsome point, defendant struck a curb with the Lexus and apparently damaged one of thewheels. Defendant then parked the vehicle in the lot of a local hotel, and the group setout again in Derenzo's Camry. When Williams expressed interest in finding another weedspot, defendant directed him to 933 Albany Street in Schenectady—a locationfrom which he previously had purchased marihuana.
Upon arriving at that address, defendant entered an apartment and made his purchasefrom Tristan Phillips. Defendant, however, was dissatisfied with the quality of hispurchase and thereafter devised a plan to rob the weed spot in order to obtain money tofix the damaged Lexus. At defendant's request, Williams retrieved a 9 millimeterhandgun that he had stashed at a friend's house earlier that evening, and the group thendrove back to 933 Albany Street.[FN1] Once there, Derenzo parked a few houses away in order to avoid detection, anddefendant, Williams, Durham and Dickerson exited the Camry and entered the weedspot.
Defendant knocked on the door of the apartment, told Phillips why he was there,explained that he had been in an accident and asked Phillips to let him inside so that hecould wash his hands. Williams, Dickerson and Durham waited—apparently out ofsight—in the hallway. Defendant told Phillips that he was waiting for his"homeboy" to bring him money for the purchase and lingered in theapartment—waiting for Williams to rush in as planned. When Williams failed tomaterialize, defendant told Phillips that he had changed his mind and started to leave. Atthis point, Ulysses Canty—the alleged proprietor of the weed spot—becamesuspicious, pushed defendant from the apartment and closed the door behindhim.[FN2] According to Williams and Durham, defendant then grabbed the gun from Williams andfired multiple shots at the closed door. Canty, who was braced against the inside of thedoor, was struck and fatally wounded. Defendant, Williams, Durham and Dickerson thenfled the scene in Derenzo's Camry, which she crashed into a telephone pole shortlythereafter.
Defendant subsequently was arrested in connection with unrelated drug sales made toa confidential informant (seePeople v Johnson, 91 AD3d 1194 [2012], lv denied 18 NY3d 995[2012]) and, in September 2009, was indicted and charged with various crimes stemmingfrom the shooting at the weed spot. Following a 14-day jury trial, defendant wasconvicted of the crimes of murder in the first degree, murder in the second degree,attempted robbery in the first degree (three counts), attempted robbery in the seconddegree, criminal possession of a weapon in the second degree (two counts), criminalpossession of a weapon in the third degree, reckless endangerment in the first degree andtampering with physical evidence and thereafter was sentenced to an aggregate prisonterm of 28½ years to life. This appeal ensued.
We affirm. Defendant initially challenges certain of Supreme Court's pretrial rulings,[*3]including the court's decision to permit the People tointroduce evidence regarding defendant's drug-trade activity and rumored affiliation withthe Bloods gang. "Generally speaking, evidence of uncharged crimes or prior bad actsmay be admitted where they fall within the recognized Molineuxexceptions—motive, intent, absence of mistake, common plan or scheme andidentity—or where such proof is inextricably interwoven with the charged crimes,provide[s] necessary background or complete[s] a witness's narrative" (People v Burnell, 89 AD3d1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marksand citations omitted]). Here, defendant's drug-related activities and purported gangmembership provided necessary background information, explained how Derenzo,Williams, Durham, Phillips and defendant knew one another (as well as why defendant'sacquaintances went along with his plan to rob the weed spot) and, viewed in the contextof the activities that occurred prior to the shooting, established both defendant'sawareness of the weed spot and a motive for the shooting; thus, such "evidence washighly probative of several relevant and material issues at trial and genuinely interwovenwith the facts surrounding the shooting" (People v Williams, 28 AD3d 1005, 1008 [2006], lvdenied 7 NY3d 819 [2006]; see People v Jackson, 100 AD3d 1258, 1261 [2012];People v Burnell, 89 AD3d at 1120-1121; People v Lee, 80 AD3d 877, 880 [2011], lv denied16 NY3d 833 [2011]). We also are persuaded that Supreme Court, which revisited thisissue frequently throughout the trial, properly balanced the probative value of suchevidence against its prejudicial effect and gave appropriate limiting instructions (seePeople v Lee, 80 AD3d at 880). Under these circumstances, we discern no error inthe admission of the proffered evidence.
We do, however, find that portions of defendant's November 24, 2008video-recorded interview—conducted by a member of the Schenectady PoliceDepartment—should have been suppressed based upon defendant's clearinvocation of his right to remain silent.[FN3] The case law makes clear that "[a] defendant's invocation of the right to remain silentmust be scrupulously honored" (People v Logan, 19 AD3d 939, 941 [2005], lvdenied 5 NY3d 830 [2005] [internal quotation marks and citations omitted]; seeMiranda v Arizona, 384 US 436, 479 [1966]; People v Caruso, 34 AD3d 860, 862 [2006], lvdenied 8 NY3d 879 [2007]) once the right is asserted in an "unequivocal andunqualified" fashion (People vHorton, 46 AD3d 1225, 1226 [2007], lv denied 10 NY3d 766 [2008]).Whether a defendant's request in this regard is "unequivocal is a mixed question of lawand fact that must be determined with reference to the circumstances surrounding therequest[,] including the defendant's demeanor, manner of expression and the particularwords found to have been used by the defendant" (People v Zacher, 97 AD3d 1101, 1101 [2012], lvdenied 20 NY3d 1015 [2013] [internal quotation marks and citation omitted]).[*4]
Here, defendant was interviewed forapproximately 30 minutes on November 24, 2008 by a detective with the SchenectadyPolice Department. After advising defendant of his Miranda rights, the detectivebegan questioning defendant regarding his association with Derenzo and Williams, aswell as his activities on the morning of the shooting. Less than 18 minutes into theinterview, however, defendant stated that he did not wish to answer any more questions;in response, the detective indicated that he nonetheless wished to ask additionalquestions of defendant and thereafter proceeded to do so. This pattern—assummarized below—would repeat itself over the course of the next 13 minutes orso until defendant uttered the word "lawyer" and the questioning finallyceased.[FN4]
"7:53:15 a.m.
"Defendant: I don't wanna do no more questions, man. I wanna see what I'mabout to be locked up for."Detective: Well, I think you are going to be locked up for sales, sales of drugs.
"Defendant: Alright.
"Detective: Alright?
"Defendant: Alright.
"Detective: OK, but I still wanna continue to ask you some questions. . .
"Defendant: Hold on, hold on, hold on, enough. I don't want to finish answering thequestions. I don't wanna be rude or disrespectful neither sir.
"Detective: I haven't been rude or disrespectful to you.
"Defendant: I know, I know it. And I don't, I don't wanna like, seem like I'm beingrude or disrespectful like I just said for all of the questioning just because. . .
"Detective: Alright, let's go back to uh . . .[*5]
"Defendant: I really don't wanna answer.
"Detective: Let's do the yes or no thing, yes or no.
"Defendant: Alright." . . .
"8:02:16 a.m.
"Defendant: I don't want any more questions."
"8:05:25 a.m.
"Defendant: Like I'm, I'm done with the questioning like, not to be rude. . .
"Detective: Well, you're not being rude. You're doing pretty good. I'm not done withthe questioning yet.
"Defendant: I don't—all right [sic], fine, I ain't got no more answers.". . .
"8:05:57 a.m.
"Defendant: Listen, listen. Hear me? Say right to me, said like I read my rights.Like I don't got a lawyer present . . . That's what I'm trying to tell you, so. . ."Detective: What are you trying to tell me?
"Defendant: I don't want to talk no more . . .
"Detective: Okay, that's fine.
"Defendant: . . . like I want to go over to the jail.
"Detective: All right [sic].
"Defendant: Lock up, get my phone call, please."
As the foregoing summary makes clear, defendant repeatedly invoked his right toremain silent at numerous points throughout the interview (compare People vHorton, 46 AD3d at 1226; People v Caruso, 34 AD3d at 862-863; Peoplev Logan, 19 AD3d at 941) and, at all times prior to the actual termination thereof,the detective in question repeatedly ignored [*6]defendant's assertion of his constitutional right. Therecorded interview and accompanying summary leave no doubt as to what transpired, andthe detective in question acknowledged at the underlying Huntleyhearing—and at the earlier Huntley hearing conducted on the unrelateddrug charges—that he continued to question defendant despite the fact thatdefendant more than once indicated that he did not wish to answer any morequestions.[FN5] Accordingly, Supreme Court erred in failing to suppress those statements made bydefendant after the point in time that he first unequivocally stated that he no longerwished to answer any further questions (see People v Rodriguez, 77 AD3d 975, 975-976 [2010],lv denied 16 NY3d 836 [2011]). However, for the reasons that follow, we deemthe admission of the redacted interview[FN6] into evidence to be harmless error and, therefore, reversal of defendant's conviction isnot required. We reach a similar conclusion regarding defendant's relatedclaim—namely, that Supreme Court further erred in failing to redact fromdefendant's recorded statement his various invocations of his right to remain silent.
Where, as here, the asserted error is of a constitutional dimension, the error may bedeemed harmless only if "there is no reasonable possibility that the error might havecontributed to defendant's conviction and that it was thus harmless beyond a reasonabledoubt" (People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Best, 19 NY3d739, 744 [2012]; People vWestervelt, 47 AD3d 969, 973 [2008], lv denied 10 NY3d 818 [2008]).In our view, the testimony of, among others, Derenzo, Williams, Durham and Phillips,together with the independent fingerprint and DNA evidence,[FN7] constitute overwhelming evidence of defendant's guilt. We therefore conclude that thereis no reasonable possibility that the statements made by defendant after he first invokedhis right to remain silent, which did not include any admission of guilt, contributed to hisconviction (see People vCobb, 97 AD3d 1166, 1167-1168 [2012], lv denied 19 NY3d 1101[2012]; People v Rodriguez, 77 AD3d at 976; People v Chambers, 18 AD3d571, 572 [2005], lv denied 5 NY3d 786 [2005]; People v Nunez, 9 AD3d471, 472 [2004], [*7]lv denied 4 NY3d 766[2005]).[FN8]
Finally, we reject defendant's assertion that his conviction with respect to the chargeof murder in the first degree is not supported by legally sufficient evidence[FN9] and, further, is against the weight of the evidence. Insofar as is relevant here, "[a] personis guilty of murder in the first degree when . . . [w]ith intent to cause thedeath of another person, he [or she] causes the death of such person or of a third person"while in the course of committing or attempting to commit a robbery or in the immediateflight therefrom (Penal Law § 125.27 [1] [a] [vii]). Defendant specifically takesissue with the intent element of this crime, arguing that while the evidence may support afinding that he acted with depraved indifference, it fell short of establishing that heintended to kill Canty. We disagree.
Defendant's intent may be inferred from both his actions and the surroundingcircumstances (see People vRogers, 94 AD3d 1246, 1250 [2012], lv denied 19 NY3d 977 [2012];People v Ford, 90 AD3d1299, 1300 [2011], lv denied 18 NY3d 994 [2012]; People v Molina, 79 AD3d1371, 1376 [2010], lv denied 16 NY3d 861 [2011]). Here, Derenzo,Williams and Durham testified that defendant—agitated, nervous and dissatisfiedwith his prior purchase of marihuana from Phillips—decided to rob the weed spotin order to obtain money to pay for repairs to the damaged Lexus. When the robberyfailed to progress as planned and defendant was abruptly pushed out of the apartment,Williams and Durham testified, defendant grabbed the gun from Williams and attemptedto either prevent the apartment door from fully closing or force his way back inside. Atthis point, defendant fired five shots at the door; four of the projectiles struck andpenetrated the door—at varying heights, locations and angles oftrajectory—and one of the projectiles penetrated the surrounding frame. Accordingto Durham, one of these shots was fired at "close range"—an observationcorroborated by the subsequent crime scene investigation—and Phillips testifiedthat Canty, who had just pushed defendant out of the apartment and "closed the door realfast," was bracing himself against the door at the time the shooting began. As the shotsrang out, Canty started to run for cover, whereupon he exclaimed, "I'm hit. I'm hit. Oh,man" and collapsed. Although there was other evidence in the record that could havesupported a finding that the shooting was not intentional,[FN10] we are satisfied—based upon our review of the record as a whole—thatthere is ample evidence to support defendant's conviction of intentional murder. As theverdict is supported by legally sufficient evidence and is not against the weight of theevidence, it will not be disturbed. Defendant's remaining arguments, to the extent notspecifically addressed, have been examined and found to be lacking [*8]in merit.
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Derenzo later woulddescribe defendant's mood during this time as agitated. Durham would offer similartestimony, stating that defendant was nervous and in need of money to pay for the repairsto the Lexus.
Footnote 2: Canty apparently wasnot present when defendant made his original purchase earlier that morning.
Footnote 3: We reject the People'sassertion that defendant's challenge in this regard is barred by the doctrine of collateralestoppel. Although the doctrine applies in both the civil and criminal realms (seePeople v Aguilera, 82 NY2d 23, 29 [1993]; People v Williams, 93 AD3d 1212, 1212 [2012], lvdenied 19 NY3d 978 [2012]), it "is not as liberally applied in criminal prosecutionsas in civil actions" (People v Acevedo, 69 NY2d 478, 485 [1987]). Based uponour review of the record, we are not persuaded that, among other things, defendant had afull and fair opportunity to litigate this issue in the context of his earlier prosecution onthe unrelated drug charges.
Footnote 4: To the extent that anydiscrepancies exist with respect to the length of the interview and/or the time that variousquestions were asked and answered, we have adopted the time-stamp references depictedon the actual video. Similarly, to the degree that there may be minor discrepanciesbetween the recorded interview and the typed summary thereof, we have deferred todefendant's recorded statements.
Footnote 5: The People providedthis Court with the transcript of the prior Huntley hearing, wherein the detectiveconceded that, at some point prior to the actual conclusion of the interview, defendantindeed indicated that he did not want the detective "to ask him anymore [sic] questions,"to which the detective replied, "[B]ut I told him I still had some more questions to askhim. And we did continue with the interview." When asked why he continued to questiondefendant after defendant indicated that "he no longer wanted to talk," the detectiveagain stated, "Because there was [sic] more questions I wanted to ask him."
Footnote 6: The copy of the DVDentered into evidence and submitted to the jury depicts the interview concluding atapproximately 8:05:52 a.m. on the morning in question, i.e., before defendant made anymention of an attorney.
Footnote 7: Although such evidencedoes not place defendant at the scene of the crime, it does corroborate other detailsprovided by Derenzo, Williams and Cellini.
Footnote 8: To the extent thatdefendant takes issue with the credibility of certain of the People's witnesses, we neednote only that any prior criminal histories and/or leniency agreements made with thePeople in exchange for such testimony were fully explored at trial.
Footnote 9: Defendant preservedthis issue for our review by making specific motions in this regard at the close of thePeople's case and again at the close of all proof.
Footnote 10: An inmate at thelocal jail testified that he overheard defendant discussing the shooting and, according todefendant, he just went to the weed spot to "do some thief work" and "it . . .wasn't supposed to happen that way."