| People v Johnson |
| 2014 NY Slip Op 08765 [123 AD3d 573] |
| December 16, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Keith Johnson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered July19, 2011, convicting defendant, after a jury trial, of robbery in the second degree, petitlarceny, menacing in the second degree, and possession of an imitation pistol, andsentencing him to an aggregate term of five years, reversed, on the law, and the matterremanded for a new trial.
The issue presented is whether defendant's rights under Bruton v UnitedStates (391 US 123 [1968]) were violated by the admission into evidence of thecodefendant's grand jury testimony at their joint trial. The People's case was foundedprimarily on the testimony of an undercover officer, who testified that he approacheddefendant and asked, "What's good?" mentioning "crack." After asking the undercover ifhe was a cop, defendant told the undercover to follow him. Defendant got into the frontpassenger seat of a silver Jeep Liberty in which the codefendant sat in the driver's seat,and the undercover approached the open front passenger window. Defendant told theundercover, "Give [me] the money" and the undercover replied, "No, give me the stuff."Defendant reached into his groin area, creating the impression that he was retrievingdrugs, and the codefendant asked to count the money. In the belief that he was about toreceive narcotics from defendant, the undercover leaned into the car and reached pastdefendant to hand the codefendant $30 in prerecorded buy money. As the undercoverleaned back out, expecting to take drugs from defendant, defendant pulled a pistol fromhis pants. Believing the gun to be real, the undercover stepped back, raised his handsslightly, and moved out of its path, shouting, "Gun, gun, gun," to alert the field team thata gun was being pointed at him. The Jeep pulled out, and as it did, defendant turned hisbody toward the open window and pointed the gun partway out of it, at the undercover,who drew his weapon and fired once, striking the rear passenger window.
During the subsequent stop of the vehicle and arrest of its occupants, the policerecovered $30 in pre-recorded buy money from the codefendant's front pants pocket andan imitation pistol resembling a Walther, covered in blood, from between the frontpassenger seat and the door.
The codefendant's grand jury testimony was, in essence, that on the night in questionhe was driving around with defendant in a Jeep, looking for defendant's car, which hadrecently been stolen. Around midnight, defendant said he wanted to get something to eat,so the codefendant stopped at 167th Street, near a couple of restaurants, and kept the caridling while defendant got out to get some food. The codefendant claimed not to bepaying much attention until defendant got back into the car. After defendant closed thecar door, "someone came to the vehicle talking about where is the stuff and reachingmoney out." That person "with money in his hand [was] talking about where is thestuff?" The codefendant testified that he then "knew it was time for me to leave." Heclaimed not to see what defendant was doing at that point and denied having seen a blackplastic toy gun in the car. As the codefendant drove off, "[t]he money dropped in thecar." The guy who had come to the window just "left it in my car." At the same time, ashot was fired, the back window of the car shattered, and defendant said, "I am hit." The[*2]codefendant admitted that when the car wassubsequently stopped by the police, the $30 identified in court as prerecorded buy moneywas in his pants pocket; he said he had taken the money and put it in his pants.
Under Bruton v United States, "a defendant is deprived of his SixthAmendment right of confrontation when the facially incriminating confession of anontestifying codefendant is introduced at their joint trial, even if the jury is instructed toconsider the confession only against the codefendant" (Richardson v Marsh, 481US 200, 207 [1987]). Since the rule only applies where the codefendant's statement was"incriminating on its face, and [not where it] became so only when linked with evidenceintroduced later at trial" (Richardson, 481 US at 208), the question before us iswhether the codefendant's grand jury testimony was facially incriminating as todefendant, rather than incriminating only when linked to other evidence.
The court found that the codefendant's statement was not "facially incriminating as toMr. Johnson" because nothing in the statement suggested that defendant was involved inany illegal conduct. We disagree.
Although the codefendant's grand jury testimony was intended as an innocentexplanation of the events surrounding the alleged robbery, and admitted no wrongdoing,nevertheless it was "facially incriminating" as to defendant within the meaning ofBruton.
The codefendant's narrative placed defendant with the codefendant throughout therelevant events and, specifically referring to defendant approximately 40 times, describeddefendant's conduct. Among other things, the statement recounted that, after defendant'sreturn to the codefendant's car following an absence to "get food," the alleged robberyvictim (an undercover officer) appeared at the car window, asked where the "stuff" was,and dropped prerecorded buy money (the property allegedly stolen in the chargedrobbery) into the car. This narrative suffices to create an inference that defendant, whileoutside the codefendant's vehicle, had purported to set up a deal for a sale of contrabandthat was to culminate in the vehicle, but did not fulfill the deal once he entered thevehicle.
In People v Martin (58AD3d 519 [1st Dept 2009], lv denied 12 NY3d 818 [2009]), we found that acodefendant's statement was violative of Bruton under analogous circumstances,even though the "brief references merely placed defendant at the scene, and his presenceat the scene was essentially consistent with the defense theory of the case" (id. at519). The incriminating implications against defendant are far stronger here.
Although in Martin we found the error to be harmless, here, we cannot saythat admission of the codefendant's statement was harmless beyond a reasonable doubt,in view of the extensive references to defendant and the indications that defendant hadpurported to set up a drug deal with an individual whom he then led back to the car(see People v Hamlin, 71 NY2d 750, 760 [1988]). As defendant points out, therewere numerous inconsistencies, gaps, and allegedly problematic aspects of the People'sevidence that, although plausibly characterized as innocuous by the People, might havebeen relied upon to create reasonable doubt in a trial at which the codefendant'sstatement was not part of the evidence. Further, and most significantly in our view, inthis case in which the defense claimed that the police fabricated a story of a sham drugsale leading to a robbery in order to excuse the undercover officer's improper shooting ofdefendant as the codefendant's car pulled away, the codefendant's statement was the onlynonpolice evidence that the codefendant possessed the buy money when the car wasstopped.
We also note that defense counsel made a timely application for preclusion of thecodefendant's grand jury testimony, deletion of all references to defendant, or aseverance. Since we are ordering a new trial, we find it unnecessary to reach defendant'sremaining arguments. Concur—Tom, J.P., Friedman, Andrias and Saxe, JJ.
DeGrasse, J., dissents in a memorandum as follows: I dissent because I disagree withthe majority's conclusion that the grand jury testimony of Rushing, defendant'scodefendant, who did not testify at trial, was facially incriminating as to [*3]defendant under the standard articulated by the SupremeCourt in Bruton v United States (391 US 123, 135-136 [1968]) and furtherexplained by the Court in Richardson v Marsh (481 US 200, 207-209[1987]).
Defendant's prosecution stems from an undercover drug buy-and-bust operationconducted by a team of police officers on July 8, 2009 in the vicinity of East 167th Streetand Grant Avenue, in the Bronx, where defendant was encountered. The undercoverpolice officer, UC 44, approached and told defendant that he was looking for $30 worthof crack. Defendant asked UC 44 if he was a cop. In response, UC 44 lifted his shirt toshow that he was not armed or wired. As directed by defendant, UC 44 followed himaround the corner. With UC 44 trailing, defendant got into the front passenger seat of aJeep. UC 44 testified that defendant demanded the money, and he, UC 44, replied, "No,give me the stuff." Rushing, who was sitting in the driver's seat, asked to count themoney, in response to which UC 44 leaned into the car, reached over defendant, andhanded Rushing $30 in prerecorded buy money. UC 44 testified that defendant thenpulled an object, which later turned out to be a toy pistol, from his pants. UC 44 steppedaway from the vehicle and signaled the presence of a weapon to the field team byexclaiming, "Gun, gun, gun!" over his Kel transmitter. Defendant pointed the toy pistolat UC 44 as Rushing drove away. UC 44 fired a shot from his own weapon that he hadsecreted on his hip. The bullet went through the rear passenger window and struckdefendant's shoulder.
A few blocks away, the field team apprehended and removed defendant and Rushingfrom the Jeep. At this time, Sergeant Urena saw the toy pistol, covered in blood, betweenthe front passenger seat and the door. Lieutenant Rodriguez and Detective Baldwin alsosaw the toy pistol inside of the Jeep. Detective Alston searched Rushing and recoveredthe buy money from his front pants pocket. All of the foregoing facts were established byevidence that did not include Rushing's grand jury testimony.
On the other hand, Rushing's relevant grand jury testimony is as follows: On theevening of July 7-8, 2009, Rushing was driving around in a Jeep with defendant, hisfriend. At around midnight, defendant said he wanted to get something to eat. Rushingstopped the vehicle at East 167th Street near a couple of restaurants, where defendant gotout and got food. As defendant went to get the food, Rushing saw no one walking withhim. When defendant returned, "[another man] came to the vehicle [and stood at thewindow] talking about where is the stuff and reaching money out [sic]." Rushing did notsee what defendant was doing at that time. As Rushing drove away, a shot was fired,striking defendant. The police stopped the vehicle at a traffic light and arrested defendantand Rushing. Rushing did not see any firearm or toy gun in the vehicle before theincident. Nor did he see defendant pull the gun on the person standing at the window.Before shooting defendant, the man who demanded the "stuff" left the money in the Jeep.Rushing put the money in his pants pocket, from which it was recovered upon hisarrest.
Defendant and Rushing were charged in an indictment with the crimes of robbery inthe second degree (aided by another actually present), robbery in the second degree(displayed what appeared to be a pistol), petit larceny, criminal possession of stolenproperty in the fifth degree, unlawful use of an imitation firearm, and menacing in thesecond degree. The jury convicted defendant of the charges under the robbery in thesecond degree (display of a weapon) count as well as the petit larceny, imitation firearm,and menacing counts. Defendant was acquitted of robbery under the aided by anothercount and of criminal possession of stolen property. Rushing was convicted under thepetit larceny and criminal possession of stolen property counts and acquitted of all othercharges.
Defendant argues that the admission into evidence of Rushing's grand jury testimonyviolated his right to confront witnesses against him under the Confrontation Clause of theSixth Amendment to the United States Constitution (see Crawford v Washington,541 US 36 [2004]). Defendant also contends that he was implicated by Rushing's grandjury testimony and that its admission constituted prejudicial error even in light of the trialcourt's limiting instruction (see Bruton, 391 US at 135). Crawford"establishes that the Confrontation Clause generally prohibits the use of 'testimonial'hearsay against a defendant in a criminal case, even if the hearsay is reliable,unless the defendant has a chance to cross-examine the out-of-court declarant" (People v Goldstein, 6 NY3d119, 127 [2005], cert denied 547 US 1159 [2006] [emphasis added]). [*4]Nonetheless, a codefendant whose testimony is introducedat a joint trial is not considered a witness "against" a defendant if the jury is instructed toconsider the testimony only against the codefendant (Marsh, 481 US at 206). Thisprinciple set forth in Marsh was unaffected by Crawford (see People v Pagan, 87 AD3d1181, 1183 [3d Dept 2011], lv denied 18 NY3d 885 [2012]; see alsoUnited States v Lung Fong Chen, 393 F3d 139, 150 [2d Cir 2004], cert denied546 US 870 [2005]). Accordingly, the Confrontation Clause is generally notimplicated where a nontestifying declarant's statement is admitted against him or heralone (People v Pagan, 87 AD3d at 1184).
In Bruton, however, the Supreme Court held that a defendant is deprived ofthe Sixth Amendment right of confrontation when a facially incriminating confession ofa nontestifying codefendant is introduced at a joint trial, even if the jury is instructed toconsider the confession only against the codefendant (Bruton, 391 US at135-136). Therefore, under the Supreme Court's interpretation of Bruton andMarsh, a codefendant's facially incriminating statement is so powerfully prejudicialthat a limiting instruction would be of no use (see Gray v Maryland, 523 US 185,192 [1998]). There is no reason to assume, however, that every statement by acodefendant is facially incriminating. A codefendant's statement is facially incriminatingonly when it directly inculpates the accused (see People v Pagan, 87 AD3d at1184). On the other hand, a statement is not facially incriminating if it inculpates onlywhen linked with other evidence (see Marsh, 481 US at 208-211). The admissionof such a statement with a limiting instruction would not constitute a Bruton orCrawford violation (see People v Pagan, 87 AD3d at 1184; see alsoPeople v Bowen, 309 AD2d 600 [1st Dept 2003], lv denied 1 NY3d 568[2003]; People v Johnson, 162 AD2d 620 [2d Dept 1990], lv denied 77NY2d 996 [1991]).
In this case, Rushing's grand jury testimony was not facially incriminating because itdid not implicate defendant in any of the conduct underlying his conviction under therobbery, petit larceny, imitation firearm, and menacing counts. Specifically, Rushingmade no mention of any interaction between defendant and UC 44 before the latterpurportedly approached the Jeep and demanded the "stuff" before firing a shot. Rushingdid not testify that defendant demanded or took possession of the buy money. Moreover,he asserted that he never saw a toy pistol. In sum, the bizarre encounter Rushingrecounted in his grand jury testimony did not attribute any criminality to defendant.
Defendant's reliance on Rushing's particular testimony that the $30 was in his pocketis misplaced. Defendant argues that he was directly implicated by this evidence.However, as noted, a statement that inculpates only when linked with other evidence isnot facially incriminating (see Marsh, 481 US at 208). For this reason, I disagreewith the majority's position that Rushing's grand jury testimony was faciallyincriminating insofar as it "suffice[d] to create an inference" and gave "indications" thatdefendant purported to set up a drug deal with UC 44 while away from the vehicle andoutside of Rushing's presence. Such an inference does not arise from Rushing's testimonyalone. Here, the identity of the money as the proceeds of the robbery could not have beenestablished by Rushing's grand jury testimony alone. That link could only have beenestablished through the testimony of the police witnesses.
Even if Rushing's grand jury testimony was erroneously admitted, the error washarmless beyond a reasonable doubt. I reach this conclusion on the basis of "two discretefactors: (1) the quantum and nature of the evidence against defendant if the error isexcised and (2) the causal effect the error may nevertheless have had on the jury" (seePeople v Hamlin, 71 NY2d 750, 756 [1988]). With regard to the first factor, thequantum of other evidence I rely upon includes the recovery of the buy money and thetoy pistol, the respective proceeds and instrument of the robbery. In addition, it isundisputed that defendant was apprehended shortly after and near the scene of his crime.In short, the evidence of defendant's guilt was generally overwhelming (seeBowen, 309 AD2d at 601).[FN*] As to the second factor, I see no chancethat the jury would have [*5]acquitted defendant but forRushing's grand jury testimony (see e.g. People v Latine, 151 AD2d 279, 282 [1stDept 1989], lv denied 74 NY2d 812 [1989]). The majority cites People v Martin (58 AD3d519 [1st Dept 2009], lv denied 12 NY3d 818 [2009]) in which we held thatthe introduction of a nontestifying codefendant's statements constituted Brutonerror that was nonetheless harmless because the statements' "brief referencesmerely placed defendant at the scene, and his presence at the scene was essentiallyconsistent with the defense theory of the case" (id. at 519). In an attempt todistinguish Martin, the majority posits that "[t]he incriminating implicationsagainst defendant are far stronger here." The majority's position on this issue isperplexing. As noted above, by Rushing's account, defendant had walked away from himand his vehicle during the time of the robbery described in UC 44's testimony. Had therebeen a Bruton error it would have been even more harmless in this case, whereRushing did not testify about any robbery committed in his presence. Therefore, themajority's attempt to distinguish Martin in its harmless error analysis is entirelyunavailing.
I also find defendant's appellate argument that the prosecutor's summationundermined the limiting instruction to be unpreserved (see People v Romero, 7 NY3d911 [2006]), and it does not merit review in the interest of justice. Alternatively, inmy view, the prosecutor's comments on Rushing's grand jury testimony as well as theother evidence were appropriate and provide no basis for a reversal.
In addition, I find that after conducting a Hinton hearing, the courtprovidently exercised its discretion in permitting UC 44 and UC 110, another policeofficer who acted as the "ghost," to testify anonymously, identifying themselves only bytheir shield numbers. Each undercover officer testified about concerns for his safetyassociated with his undercover work. By this testimony, the People established a need foranonymity as required by Peoplev Waver (3 NY3d 748 [2004]). Specifically, UC 44 testified that he had madenumerous undercover purchases in the vicinity of the robbery and expected to continuedoing the same work in the area. In addition, he testified about narcotics purchases fromsubjects who had yet to be apprehended. UC 110 testified that he had been workingundercover for more than three years and had made numerous narcotics arrests.Moreover, defendant has made no showing that his knowledge of the undercoverofficers' names would have opened any "avenues of in-court examination andout-of-court investigation" (Smith v Illinois, 390 US 129, 131 [1968]) not alreadyopened by knowledge of their shield numbers (see People v Granger, 26 AD3d 268 [1st Dept 2006], lvdenied 6 NY3d 894 [2006]). I find no merit to defendant's remaining contentions andno basis for reducing the sentence.
Footnote *:Although the majorityfinds it significant, defendant's claim of a coverup with respect to the shooting is a redherring. The shooting occurred after defendant committed the robbery, and the evidenceof his guilt was unrefuted. The majority's passing reference to unspecified"inconsistencies, gaps, and allegedly problematic aspects of the People's evidence" isequally unpersuasive.