| People v Speaks |
| 2015 NY Slip Op 00396 [124 AD3d 689] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Louis Speaks, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, LoriGlachman, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered October 9, 2012, convicting him of robbery in the first degree (twocounts) and robbery in the second degree (two counts), upon a jury verdict, and imposingsentence. The appeals brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the lineup was unduly suggestive is without merit.There is no requirement that a defendant who participates in a lineup be placed amongindividuals who are nearly identical to him (see People v Chipp, 75 NY2d 327[1990]; People vVillacreses, 12 AD3d 624 [2004]). The defendant's contention that there was aheight difference between him and the other lineup participants is unpreserved forappellate review (see CPL 470.50 [2]). In any event, photographs of the lineupintroduced into evidence at the hearing confirm that the lineup participants were seatedso as to minimize any height disparities (see People v Villacreses, 12 AD3d at624; People v Huggins, 292 AD2d 543 [2002]). The photographs alsodemonstrate that the fillers sufficiently resembled the defendant (see People vVillacreses, 12 AD3d at 624; People v Snyder, 304 AD2d 776 [2003]). Skintone is only one of the factors to be considered in deciding "reasonable similarity"(People v Villacreses, 12 AD3d at 625 [internal quotation marks omitted]; seePeople v Miller, 199 AD2d 422, 423 [1993]), and differences in skin tone alone willnot render a lineup unduly suggestive (see People v Villacreses, 12 AD3d at 624;People v Pointer, 253 AD2d 500 [1998]).
The defendant's contention that the People failed to present legally sufficientevidence to sustain his convictions of robbery in the first degree and robbery in thesecond degree (Penal Law §§ 160.15 [1]; 160.10 [1]) is unpreservedfor appellate review (see Peoplev Hawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19[1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt beyond a reasonable doubt (see Penal Law§ 160.00 [2]; People v Smith, 87 AD3d 920 [2011], affd 22NY3d 1092 [2014]; People vPeters, 69 AD3d 765 [2010]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL [*2]470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
We agree with our dissenting colleague that certain cases warrant, upon thedefendant's request and in the exercise of the court's discretion, expert testimonyregarding eyewitness identification (see generally People v LeGrand, 8 NY3d 449, 452,454-457 [2007]). Generally, these are cases which " 'turn[ ] on the accuracy ofeyewitness identifications [with] little or no corroborating evidence connecting thedefendant to the crime' " (People v Rhodes, 115 AD3d 681, 681-682 [2014], quotingPeople v LeGrand, 8 NY3d at 452). Here, the defendant did not seek to offerexpert testimony, and he does not raise that issue on appeal. Moreover, this recordreveals that there was sufficient corroborating evidence connecting the defendant to thecrime (see People v Rhodes, 115 AD3d at 681-682). In addition to identificationsby three eyewitnesses to the robbery, the People admitted surveillance video of thedefendant, placing him near the scene shortly before the robbery, and then leaving thescene moments after the robbery.
The defendant failed to preserve for appellate review his contention that thetestimony of Detective Michael Henry recounting a description of the perpetrator givenby a nontestifying witness, Joel Anderson, violated his rights under the ConfrontationClause of the Sixth Amendment to the United States Constitution (US Const 6thAmend). The defendant did not object to the testimony on those specific grounds; heraised only a hearsay objection to this testimony (see People v Walker, 70 AD3d 870, 871 [2010]; People v Chandler, 59 AD3d562 [2009]). In any event, the defendant's contention is without merit. The jury wasspecifically instructed not to consider this description for its truth, and the descriptionwas properly admitted for the relevant, nonhearsay purpose of "establishing the reasonsbehind the detective's actions, and to complete the narrative of events leading to thedefendant's arrest" (People vRagsdale, 68 AD3d 897, 897-898 [2009]; cf. People v Rosario, 100 AD3d 660, 661 [2012]). Contraryto the view of our dissenting colleague, we find that the People sufficiently established aconnection between Anderson's description and subsequent police conduct. Anderson'sgeneral description of the perpetrator, as distinct from a direct identification of thedefendant, led to successive police investigatory conduct such as interviewing otherwitnesses, including a witness who identified the defendant at trial, and procuring thesurveillance video of the defendant (cf. People v Berry, 49 AD3d 888, 888-889 [2008]; People v McEaddy, 41 AD3d877, 879 [2007]). Thus, the Supreme Court did not err in admitting Anderson'sdescription of the perpetrator for a limited nonhearsay purpose (see People vRagsdale, 68 AD3d at 897-898).
The defendant's contentions that Detective Henry's testimony regarding thedescription of the perpetrator given by the People's witness Christine Mateo constitutedimproper bolstering and inadmissible hearsay are also unpreserved for appellate review,as the defendant did not object to that testimony (see People v Walker, 70 AD3dat 871; People v Chandler,59 AD3d 562 [2009]). In any event, these contentions are without merit. Much likeDetective Henry's testimony about the general description of the perpetrator given by thenontestifying witness Anderson, the detective recounted only a general description givenby Mateo, who later testified for the People and identified the defendant in court. Wefind that Mateo's general description of the perpetrator was properly admitted for therelevant, nonhearsay purpose of "establishing the reasons behind the detective's actions,and to complete the narrative of events leading to the defendant's arrest" (People vRagsdale, 68 AD3d at 897-898), and it did not constitute improper bolstering (seePeople v Rosario, 100 AD3d at 661; cf. People v Bacenet, 297 AD2d 817,818 [2002]).
The defendant's remaining contentions are without merit. Dillon, J.P., Chambers, andMaltese, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment appealed from and to order a newtrial, with the following memorandum:[*3] While I agreewith certain determinations made by my colleagues in the majority, I must respectfullydissent in light of certain errors at trial, which, in my view, require reversal in this case.Specifically, I believe that it was error for the trial court to admit into evidence thehearsay testimony of a police officer regarding a description of the subject perpetratorsgiven by a nontestifying witness. Second, I believe the trial court also erred in allowingthe police officer to testify as to the description of the perpetrators given by a testifyingwitness, who identified the defendant for the first time at trial.
This case stems from an August 2010 robbery of people at a Kentucky Fried Chicken(hereinafter KFC) restaurant in Brooklyn. At trial, testimony was elicited from threecomplaining witnesses: Wilton Major, Christine Mateo, and Kevin Wilson, all of whomwere KFC employees present at the time of the robbery.
Wilton Major testified that on August 18, 2010, he was working as a chef at the KFClocated on 666 Bushwick Avenue in Brooklyn, and that at about 5:15 p.m., the KFC was"robbed." Major was in the kitchen getting ready for work when two men walked in theback door, which had been left open because it was hot. The two men differed in size,with the larger of the two being six feet "something," and about 200 pounds, and wearingan orange jersey. The smaller of the two was about 5 feet, 10 inches tall and about "100and something pounds." Major noticed that the smaller man was armed with a weapon.Major later identified the defendant as the larger man.
The defendant grabbed Major at the back of his head and ordered him to go to thefront of the KFC. Once the defendant and Major reached the front of the KFC, thedefendant asked for the manager. The smaller man went to the back of the KFC wherethe manager was. At this point, the KFC employees were told to get down on the floorand were asked if any of them had any money or cell phones.
According to Major, the defendant went through his pockets and proceeded to take$50 and his cell phone. While this was occurring, Major saw the defendant's face. Thedefendant appeared to have a shaven face with no hair on it. The defendant took cellphones from the other KFC employees as well. The safe had been opened and the smallerman took whatever he wanted. The employees were told to stay down for 5 or 10minutes, and then they could get up. The perpetrators took the manager to the back doorbefore fleeing the scene.
After the incident, Major was interviewed by police officers and was asked for adescription of the perpetrators, but did not provide one. Major told the police officersthat he did not know if he could identify anyone.
However, on March 14, 2011, approximately seven months after the incident, Majorwent to the police station to view a lineup. At the lineup, he recognized the defendant asa perpetrator of the robbery. According to Major, he recognized the defendant's face,size, and "everything."
At trial, Major viewed a compact disc containing surveillance footage of the streetnext to the KFC on the day of the robbery. Major testified that the video showed the twomen entering the KFC to commit a robbery at the store. Major recognized the men in thevideo by their clothing. Major also viewed photographic stills taken from the video. Oneof the stills seemed to depict someone with a little bit of facial hair; the facial hairappeared to be white. Major could not recall whether the defendant had facial hair.
Christina Mateo, the second complaining witness, testified that she was also workingat the KFC at the time of the robbery. Mateo identified the defendant as the larger of thetwo men, being approximately 6 feet tall and 200 to 250 pounds. She recalled him havingfacial hair that "just really started growing." The other man was shorter and possessed agun. Mateo stated the KFC employees were directed to sit down, face the wall, and notturn around. Mateo explained that the whole incident went "by fast," but that the lightswere on and she could see faces. According to Mateo, there was nothing obstructing herview.
[*4] Mateo also viewed thesurveillance footage at trial and, in one of the stills, claimed to recognize the defendantfrom his hat, shirt, shorts, and sneakers. Although Mateo could not see the defendant'sface on the video, she knew it was him by his weight and clothes. According to Mateo,she recognized the defendant by the shape of his head and complexion.
After the incident, Mateo provided the police with a description of the perpetrators.She informed the police that the larger man was in his 30s, had caramel, light skin, andwas wearing a yellow shirt. Mateo also described the larger man as being "big, 200maybe close to 300 pounds," and wearing a hat. A couple of days after the incident,Mateo identified the smaller man in a photo array at the police station. However, Mateodid not view a photo array or lineup with the defendant. Mateo identified the defendantas the larger perpetrator for the first time at trial, more than two years after theincident.
The third complaining witness, Kevin Wilson, testified that on the day of therobbery, he was working in the KFC as the general manager. According to Wilson, thecameras in the KFC were not working on the date of the incident. While Wilson wasworking in the back of the KFC, he noticed a man with a gun who stated, "don't move."According to Wilson, this man was about five feet, five inches or five feet, six inchestall, about 140 to 150 pounds, dark skinned, with braids, and wearing a cap. While beingwalked to the front of the KFC, Wilson noticed another man who had the otheremployees on the ground. This second man was close to six feet tall, weighed about 200pounds, and was light skinned. Wilson explained that he only glanced at the larger man,as he was focused on the smaller man, who was carrying a gun.
A day or two after the incident, Wilson viewed a lineup with the shorter man, butnever viewed a lineup with the larger man. Like Mateo, Wilson only identified thedefendant for the first time at trial, which was more than two years after the incident.However, Wilson identified the defendant as the "skinny guy." Wilson further stated thatthe defendant looked like the shorter man, "but with more weight."
The People also presented the testimony of Detective Michael Henry. Over defensecounsel's objection, the prosecution elicited testimony from Detective Henry pertainingto a description of the perpetrators provided by KFC employee Joel Anderson, who didnot testify at trial. The trial court allowed the testimony to be introduced into evidencenot for its truth, but "to explain why this witness did whatever he may have done."Detective Henry proceeded to testify that Anderson described the perpetrators as twomale blacks, in their 30s, one perpetrator being approximately five feet, nine inches talland 145 pounds, and the other perpetrator being six feet, four inches tall andapproximately 240 pounds.
Detective Henry also testified to the description provided to him by Mateo.Specifically, Detective Henry testified that Mateo provided a description of theperpetrators similar to the one given by Anderson: two male blacks, one being five feet,eight inches tall and 140 pounds, and the other being more than six feet tall and in the240-pound range.
The jury convicted the defendant of robbery in the first degree (two counts) androbbery in the second degree (two counts).
My analysis of this case necessarily focuses on the eyewitness identificationtestimony against the defendant. This type of evidence has been the topic of considerablescrutiny by the courts, lawyers, legal scholars, and journalists over the past decade andlonger. The consensus appears to be that eyewitness identification testimony is hardly asinfallible as it was once thought to be. Indeed, the United States Supreme Court hascautioned that eyewitness identifications must be carefully examined, factoring in anumber of criteria, such as the duration of observation, lighting, use of a weapon, and theemotional impact of the incident on the witness (see Manson v Brathwaite, 432US 98 [1977]). Skepticism concerning the strength of eyewitness identifications has led anumber of courts to allow the presentation of expert testimony to educate jurors about theproblems inherent in this type of evidence (see People v Abney, 13 NY3d 251 [2009]; People v LeGrand, 8 NY3d449 [2007]; People v Lee, 96 NY2d 157 [2001]). With this shortbackground, I now turn to the specific errors in this [*5]problematic case.
Upon my reading of the record, I find that it was error for the trial court to permitDetective Henry to testify as to Anderson's description of the perpetrators, as suchtestimony was inadmissible hearsay.
Hearsay is an out-of-court statement offered for the truth of the matter asserted(see People v Buie, 86 NY2d 501, 505 [1995]). When an out-of-court statementis not offered for its truth, but rather to explain the basis for subsequent police action, itis not considered to be hearsay. However, where there is no connection between theout-of-court statement and subsequent police action, it cannot be said that theout-of-court statement was offered for a nonhearsay purpose. Here, in my view,Detective Henry's testimony regarding Anderson's description of the perpetrators wasinadmissible hearsay, since the People failed to connect Anderson's description to anysubsequent police conduct. Indeed, Detective Henry did not provide any testimonyconnecting Anderson's description to any successive course of action he, or any otherpolice officer, took.
Although the trial court instructed the jury not to consider Anderson's description forits truth, but only to explain what Detective Henry did, in my view, this instruction didnot ameliorate the error here, since the People did not connect Anderson's description toany subsequent police conduct. Without this connection, there was no purpose for theintroduction of Anderson's description, other than for its truth.
Additionally, I find that Detective Henry's testimony, which reiterated the descriptionof the perpetrators given by Mateo, constituted both inadmissible hearsay and improperbolstering.
With respect to preservation, I find that defense counsel's objection to DetectiveHenry's testimony regarding Anderson's description on hearsay grounds was sufficient topreserve for appellate review the contention that Detective Henry's testimony as toMateo's description constituted inadmissible hearsay. Under CPL 470.05 (2), a questionof law with respect to a ruling in a criminal proceeding is raised when the party claimingerror has effectively raised a protest to such ruling. CPL 470.05 (2) further provides thatsuch protest is "sufficient if the party made his position with respect to the ruling orinstruction known to the court, or if in response to a protest by a party, the courtexpressly decided the question raised on appeal." The Court of Appeals has interpretedthis to mean that "an attorney need not repeatedly protest a court's clear ruling" (People v Lewis, 5 NY3d546, 551 [2005]; see People v Mezon, 80 NY2d 155, 161 [1992] [counselneed not "make repeated pointless protests after the court has made its positionclear"]).
Here, defense counsel objected to the prosecutor's initial elicitation of testimonyfrom Detective Henry with respect to Anderson's description on the ground of hearsay.The trial court overruled defense counsel's objection, and the testimony was found to beadmissible for the purpose of explaining police action. Once defense counsel's objectionwas recorded and clearly ruled on by the trial court, counsel was not thereafter obligatedto continuously object to similar testimony on the same ground. Therefore, I find thatdefense counsel's objection to the testimony regarding Anderson's description on hearsaygrounds was sufficient to preserve for appellate review the contention that DetectiveHenry's testimony as to Mateo's description constituted inadmissible hearsay.
As to the merits, similar to Detective Henry's testimony regarding the descriptionprovided by Anderson, the People also failed to connect the testimony concerningMateo's description to any subsequent course of action taken by the police. In myopinion, the out-of-court statements concerning Mateo's description could only beconsidered for the truth of the description and, thus, constituted inadmissiblehearsay.
The defendant contends that Detective Henry's testimony as to Mateo's descriptionalso constituted improper bolstering, violating the rule enunciated in People vTrowbridge (305 NY 471 [1953]). The People argue that this contention has beenwaived because defense counsel elicited Mateo's entire description during thecross-examination of Detective Henry, and that the contention is otherwise unpreservedfor appellate review. In my view, the defendant's contention regarding [*6]improper bolstering has not been affirmatively waived.
In People v Bryan (50AD3d 1049 [2008]), this Court found that the defendant therein waived hisimproper bolstering claim, since defense counsel not only elicited the same descriptionfrom the police officers on cross-examination, but also "argued during summation thatthe complainant's testimony was not credible" (id. at 1051). Here, in contrast,defense counsel did not argue during summation that Mateo's description was notcredible. Indeed, at no point during summation did defense counsel even refer to Mateo'spretrial description of the perpetrators. Simply questioning Detective Henry aboutMateo's description, without affirmatively using that description to support a defense, isnot tantamount to waiver.
My colleagues in the majority have concluded, and I agree, that the defendant'scontention challenging this testimony on improper bolstering grounds is unpreserved forappellate review. However, in my view, this is an appropriate case for this Court toexercise its interest of justice jurisdiction to reach the defendant's meritorious contention(see People v Nesbitt, 77AD3d 854, 855 [2010]; People v Lee, 22 AD3d 602, 602-603 [2005]).
It is well established that when a third party recites a witness's out-of-courtidentification of the defendant, such testimony constitutes improper bolstering (seePeople v Dai He Ou-Yang, 236 AD2d 554, 554 [1997]; People v Cortes, 173AD2d 319 [1991]). This Court has repeatedly held that this rule also extends to awitness's out-of-court description of the perpetrator (see People v Byron, 171AD2d 802 [1991]; People v Larsen, 157 AD2d 672 [1990]; People vWilliams, 109 AD2d 906 [1985]). Improper bolstering occurs where testimonyprovides official confirmation of a complainant's description or identification of thedefendant (see People v Trowbridge, 305 NY 471 [1953]; People vBacenet, 297 AD2d 817, 818 [2002]; People v Green, 104 AD2d 451, 452[1984]).
Upon my reading of the record, I find that Detective Henry's testimony regardingMateo's pretrial description of the perpetrators constituted improper bolstering. BeforeDetective Henry took the stand, Mateo had already provided her testimony in court,during which she identified the defendant as the larger robber and provided herdescription of the perpetrators. In my view, Detective Henry's repetition of Mateo'spretrial description served to implicitly bolster her identification testimony. Suchtestimony was of little or no probative value, and the danger of such bolstering testimonywas "especially acute," since it was provided by a law enforcement officer (People vCuiman, 229 AD2d 280, 284 [1997]).
A violation of the rule against improper bolstering may only be overlooked insituations where "evidence of identity is so strong that there is no serious issue upon thatpoint" (People v Fields, 309 AD2d 945, 946 [2003]; see People vBacenet, 297 AD2d 817 [2002]; People v Bryan, 179 AD2d 667 [1992]).That standard has not been met here. With the lack of any physical evidence linking thedefendant to the crime, the question of identity was a critical and hotly disputed issue attrial.
Moreover, these errors cannot be considered harmless. Where no constitutional erroris implicated, the error is harmless where the evidence of the defendant's guilt isoverwhelming and there is no significant probability that the error contributed to theconviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Williams, 99 AD3d955 [2012]). The evidence of the defendant's guilt was not overwhelming, as theidentification evidence was problematic in several respects. To start, only one of thecomplaining witnesses, Major, actually identified the defendant prior to trial. However,that identification took place nearly seven months after the crime, which is a substantiallapse in time. Furthermore, shortly after the crime, Major could not give a description ofthe perpetrators to the police.
Of the two other witnesses who identified the defendant at trial, one witness, Wilson,misidentified the defendant as the shorter robber. Indeed, the record shows that Wilson'sattention was primarily focused on the shorter perpetrator, who was armed with a gun.While Mateo identified the defendant as the larger robber, she did so for the first time attrial, more than two years after the incident, with the defendant seated at the defensetable. Furthermore, the record reveals that these witnesses had problems recallingwhether the larger perpetrator had facial hair or was wearing a hat [*7]during the incident. The inconsistencies surroundingwhether the perpetrator had facial hair are especially concerning, as the defendanttestified that he had alopecia, a disease that makes it impossible for him to grow hair onany part of his body.
In addition, although some swabs had been retrieved from the crime scene, they werelater rendered useless as a result of an error committed by the laboratory. With nophysical evidence linking the defendant to the crime, I cannot characterize the evidencepresented by the People as overwhelming proof of the defendant's guilt.
In light of the foregoing, it is my opinion that a new trial is warranted. Accordingly, Irespectfully dissent.