| People v Lloyd |
| 2014 NY Slip Op 01631 [115 AD3d 766] |
| March 12, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derrick Lloyd, Appellant. |
—[*1] Kenneth P. Thompson, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andTerrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dwyer, J.), rendered June 2, 2011, convicting him of murder in the second degree,criminal possession of a weapon in the second degree, and criminal possession of aweapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest ofjustice, and a new trial is ordered.
On the morning of January 1, 1991, the defendant allegedly shot and killed a man inBrooklyn. According to the People's theory of the case, prior to the shooting, thedefendant had left a nearby party at his sister's apartment, and was searching for anintoxicated man who had caused a disturbance at that party. The defendant was notapprehended until 2007. The first jury trial ended in a hung jury. At the second jury trial,which commenced in 2011, the People introduced testimony from RukaiyahLong-Akrum, Karima Crosby, and Cassandra Cannon, among others.
Long-Akrum, Crosby, and Cannon testified that, after failing to gain entry to theparty, they sat down on a bench in a nearby courtyard. At approximately 3:00 a.m., thevictim, William Smith, known as "Sha," joined the group. Thereafter, the defendant,appearing angry and upset, approached the group near the bench and, by one account,said, "I want to know where is the drunk guy who was beefing at the party," and, byanother account, said, "Did you see the guy?"
The defendant and Smith engaged in a verbal altercation. Crosby testified at thesecond trial that she recognized the defendant as a man who had previously come to thedoor at the party when she had unsuccessfully attempted to gain entry thereto. Accordingto Long-Akrum and Cannon, the defendant eventually pulled out a black handgun andshot Smith, who later died as a result.
Crosby, who testified that she did not see a gun at any point, identified the defendantas the shooter at the second trial, approximately 20 years afer the incident. However,when Crosby was questioned by law enforcement officials on the day of the shooting,she stated that she would [*2]not know the shooter if shesaw him again, and that she had been intoxicated during the entire incident. That sameday, Crosby failed to identify the defendant from a photo array, which included aphotograph of the defendant. Crosby testified that she was initially unable to identify thedefendant in 1991 because she was young and scared at the time, but at no time did sheassert that she had actually recognized the defendant's photograph.
The defendant's sister, Ramona Lloyd (hereinafter Lloyd), and the defendant'sgirlfriend both testified on the defendant's behalf. The defendant's girlfriend testified thatthe defendant was with her throughout the night of the shooting, and Lloyd furthertestified that the defendant was not present at the party in her apartment. Oncross-examination, Lloyd testified that, after the shooting, she and Patricia Drake, whowas at the party, were brought to a police station for questioning. Over the defendant'sobjection, the prosecutor asked Lloyd whether a detective had showed her a picture ofthe defendant at the station, and Lloyd answered in the affirmative. When the prosecutorasked Lloyd whether she "wanted to know what [Drake] was telling . . . thedetectives, that would make them show you a picture of your brother, right?", the trialcourt sustained defense counsel's objection. Further, the prosecutor asked Lloyd whether,after she left the police station, she had gone directly to Drake's apartment; Lloydresponded that she initially went home and subsequently visited Drake's apartment,where they had a "heated" conversation. The prosecutor asked Lloyd, over the defensecounsel's objection, whether the conversation was heated because Lloyd had introducedDrake to the defendant at the party. Lloyd answered in the negative. Also over defensecounsel's objection, the People were permitted to call a rebuttal witness who testified thatLloyd had told him that, after she left the police station, she went directly to Drake'sapartment.
During the summation, the People argued that when the police showed Lloyd apicture of the defendant at the police station, she knew that someone had told the policethat the defendant was involved in the incident and, therefore, Lloyd was angry becauseshe knew that Drake was in another room speaking to the police. The trial courtoverruled defense counsel's objection, stating, "Yes. It's an argument for the jury toconsider." The prosecutor further argued during summation that Lloyd went directly toDrake's apartment after leaving the police station "[b]ecause she wanted to know what. . . Drake said . . . about her brother being the one who haddone this, and what was going on, and why the police were showing [Lloyd] a picture ofher brother, asking her if that was her brother." The trial court overruled defensecounsel's objection to that argument.
The jury deliberated over the course of four days. On its second day of deliberations,the jury asked the court, "Do we have any testimony or statement from [Patricia]Drake?", and the court responded that there was no such testimony or statement fromDrake. The jury found the defendant guilty of murder in the second degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in thethird degree.
The defendant failed to preserve for appellate review his argument that hisconstitutional right to confront the witnesses against him (see US Const SixthAmend; NY Const, art I, § 6) was violated by certain of the prosecutor's questionson cross-examination and summation remarks that were phrased in such a manner as "tocreate in the jurors' minds the impression" that a nonwitness had made statements to thepolice implicating the defendant (People v Jones, 305 AD2d 698, 699 [2003]; see People v Berry, 49 AD3d888, 889 [2008]; People v Almonte, 223 AD2d 593, 594 [1996]) because hefailed to raise this specific argument at trial (see CPL 470.05 [2]; People v Waters, 91 AD3d977 [2012]; People vEdwards, 81 AD3d 848 [2011]). Nevertheless, we conclude that this is anappropriate case in which to exercise our interest of justice jurisdiction to reach thedefendant's contentions in this regard (see CPL 470.15 [3] [c]; [6]).
Generally, during cross-examination, a party cannot introduce extrinsic evidence orcall another witness to contradict a witness's answers concerning collateral matters solelyfor the purpose of impeaching such witness's credibility (see People v Pavao, 59NY2d 282, 288-289 [1983]). As the defendant correctly contends, during thecross-examination of Lloyd, the prosecutor improperly gave the impression that Drake,who did not testify, implicated the defendant while the police questioned her (see People v Nesbitt, 77 AD3d854, 856 [2010]; People v Berry, 49 AD3d at 889; People v Jones,305 AD2d at 699; see alsoPeople v Mendez, 22 AD3d 688, 689 [2005]). Notably, the prosecutor [*3]acknowledged at the second trial that Drake had testified atthe initial trial, and that Drake had not identified the defendant as having been present atthe party.
The defendant's constitutional right to be confronted with the witnesses against himprohibits the "admission of testimonial statements of a witness who did not appear at trialunless he [or she] was unavailable to testify, and the defendant ha[s] had a prioropportunity for cross-examination" (Crawford v Washington, 541 US 36, 53-54[2004]; see People v Pealer,20 NY3d 447, 453 [2013], cert denied 571 US —, 134 S Ct 105[2013]). Here, the defendant's constitutional right to be confronted with the witnessesagainst him was violated.
This error was exacerbated when the prosecutor, during summation, improperlyargued that Lloyd went to Drake's home after leaving the police station because Lloydwas concerned that Drake had implicated the defendant in the shooting. Moreover, whenthe trial court overruled defense counsel's timely objection, it legitimized the prosecutor'simproper argument (see People v Ashwal, 39 NY2d 105, 111 [1976]; Peoplev Bannerman, 110 AD2d 706 [1985]). The trial court further erred in permitting thePeople, over defense counsel's objection, to elicit the rebuttal testimony that showed thatLloyd went directly to Drake's home after leaving the police station.
"A constitutional error may be harmless where evidence of guilt is overwhelmingand there is no reasonable possibility that it affected the outcome of the trial" (People v Best, 19 NY3d739, 744 [2012]; seePeople v Thompson, 111 AD3d 56, 67 [2013]). Our dissenting colleague wouldfind that any error would be harmless. We disagree. Even if there were overwhelmingevidence of the defendant's guilt, there exists a reasonable possibility that the errorcontributed to the defendant's conviction since, among other things, the second trial wasconducted approximately 20 years after the homicide and the jury's deliberations, whichtook place over the course of four days, included a request for a readback of a statementby or testimony from Drake, which proved to be nonexistent (see People vCrimmins, 36 NY2d 230, 240-241 [1975]).
Accordingly, the judgment must be reversed, and a new trial must be conducted.
The defendant's remaining contention has been rendered academic in light of ourdetermination. Balkin, J.P., Leventhal, And, Austin JJ., concur.
Roman, J., dissents and votes to affirm the judgment, with the followingmemorandum: While the majority finds that the prosecutor's questioning and summationremarks improperly created the impression that Patricia Drake had implicated thedefendant in the shooting, I disagree with the conclusion that these errors require reversalof the defendant's convictions. In my view, the other evidence of the defendant's guilt,which included the testimony of three disinterested eyewitnesses to the shooting andadditional corroborating evidence, was overwhelming, and there was no reasonablepossibility that the errors complained of contributed to the defendant's convictions(see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Taylor, 40 AD3d782, 785 [2007]). Therefore, I respectfully dissent.
At the second trial, the aforementioned witnesses, Rukaiyah Long-Akrum, KarimaCrosby, and Cassandra Cannon, testified that, in the early hours of January 1, 1991, theywere sitting on a bench outside 5624 Farragut Road in Brooklyn with several otherfriends, including William Smith, when they observed the defendant emerge from thatbuilding. The defendant approached the group, and asked whether they had seen anindividual who had been at a party upstairs.
The three witnesses consistently described the defendant as a light-skinned male,wearing a Kufi-style cap, and Crosby and Cannon recalled that the defendant had facialhair and wore a light-colored sweater. The witnesses testified that when nobodyresponded to the defendant, he demanded "answers." According to two of the witnesses,Smith replied to the defendant that "everyone wants answers but we can't always havethem." The three witnesses agreed that the [*4]defendantand Smith started to argue, and maneuvered themselves behind the bench.
At this point, Long-Akrum and Cannon observed the defendant pull out a gun.Long-Akrum and Crosby both testified that Smith said, "If you're going to bust me, bustme now," or "If you're going to buzz me, buzz me now." Long-Akrum and Cannon thenobserved the defendant shoot Smith in the face. While Crosby did not see the defendantholding the gun, she testified that she heard a single gunshot, and then saw Smith lyingon the ground. There is no indication that any other person in the vicinity had a gun, andLong-Akrum testified that there was nobody else out in the courtyard where the shootingtook place other than her group of friends and the defendant. Immediately after theshooting, the witnesses ran to Crosby's apartment, where Long-Akrum called the policeto report the incident. Based on the police investigation that same day, January 1, 1991,the defendant became a suspect in the shooting.
The witnesses' testimony regarding the shooting was consistent with the forensicevidence, which showed that Smith died of a single gunshot wound to the face caused bya .380 caliber bullet, and that one .380 caliber shell casing was recovered from the sceneof the crime. Moreover, as the People correctly point out, the witnesses' testimony wascorroborated by extensive circumstantial evidence, including that the shooting occurredin the same housing project complex where the defendant resided, and in which Crosbyhad seen the defendant at a New Year's Eve party at the apartment of the defendant'ssister just before the shooting.
While the majority points out that Crosby had consumed alcohol on the night of theshooting, this fact was fully explored at trial and did not render Crosby's testimonyincredible, especially when considered cumulatively and in conjunction with thetestimony of the other eyewitnesses (see People v Littebrant, 55 AD3d 1151, 1155 [2008]; see also People v Thompson,75 AD3d 760, 763 [2010]; People v Dennis, 223 AD2d 599, 600 [1996]).Indeed, the record reveals that the "witnesses related their observations in a logical andlucid manner at trial" (People v Washington, 143 AD2d 707, 707 [1988][rejecting the defendant's contention that his guilt was not established beyond areasonable doubt by the testimony of two prosecution witnesses who were concededlyintoxicated at the time they made their observations relating to the crime]).
In addition, although the second trial was conducted approximately 20 years after thehomicide, this delay was caused by the defendant's departure from New York shortlyafter the shooting. The defendant moved to Alabama and started using the name RasheedHamid (see People vLendore, 36 AD3d 940, 940 [2007] ["Evidence of flight is admissible ascircumstantial evidence of consciousness of guilt"]). Notably, the defendant's girlfriend,Karen Wynter, testified that, after New Year's Day, January 1, 1991, the next time sheheard from the defendant was in mid-January 1991, and that he was then "down south."The defendant was ultimately apprehended in August 2007, after he tried to obtain adriver's license in Alabama under his alias by using forged documentation.
Further, the jury did not specifically request a readback of any particular statementby, or testimony of, Patricia Drake. Rather, the jury sent out a note, designated as"Number two," in which it asked, "do we have any testimony or statement from Drake?"The court responded as follows: "Number two is easy. The parties agree there is notestimony or statement from Drake, who, of course, was not a witness at this trial." Thus,the jury was aware that Drake did not provide any statement or testimony at the secondtrial.
Finally, while the majority correctly points out that the jury deliberated over thecourse of four days, the record reflects that the jury only deliberated for approximatelyone hour on the first day.
Accordingly, in light of the foregoing, I conclude that reversal of the defendant'sconviction is not warranted because the errors complained of were harmless beyond areasonable doubt (see People v McAuliffe, 36 NY2d 820 [1975] [the admissionof testimony from a police officer that created an erroneous impression that a majornontestifying witness had implicated the defendant before the grand jury was harmlessbeyond a reasonable doubt, where the other evidence of the [*5]defendant's guilt, including the testimony of three witnessesregarding the defendant's role in the crime, was overwhelming, and there was noreasonable possibility that the error might have contributed to his conviction]; Peoplev James, 289 AD2d 506 [2001]; People v Means, 152 AD2d 751, 751-752[1989]).