| People v Webster |
| 2015 NY Slip Op 01974 [126 AD3d 821] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Akim Webster, Appellant. |
John R. Lewis, Sleepy Hollow, N.Y., for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered May 16, 2011, convicting him of murder in the second degree andattempted murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was accused, and ultimately convicted, of murder in the seconddegree and attempted murder in the second degree, arising from a shooting incident thatoccurred after 11:50 p.m. on November 15, 2009. The defendant, while allegedly apassenger in a Ford Fusion automobile rented by his girlfriend, pulled up alongside awhite Lexus automobile operated by Dante McKie. Kamik Sears was sitting in the frontpassenger seat of McKie's vehicle, while Andre Scott was seated in the rear of the samevehicle. An occupant of the Ford Fusion fired shots into the white Lexus, killing Searsand injuring McKie. Although McKie initially denied seeing the shooter, atapproximately 6:00 a.m. on the morning after the shooting, he identified the defendant asthe shooter after being shown a photo array. At the same time, McKie told the police thatKyree Henderson, a person known to McKie who was of interest to the police, was notpresent when the shooting occurred.
Two days later, Henderson was found dead, in possession of a weapon that wasballistically matched to the shootings of Sears and McKie. Testing performed on theweapon revealed the presence of DNA from several sources, most of which wascontributed by Henderson, but which also included lesser amounts of genetic materialfrom others whose identities could not be determined.
McKie testified at trial and identified the defendant, whom he had known sincechildhood, as the shooter. A stipulation was read to the jury regarding the results of theDNA testing on the gun. Other evidence against the defendant included the ballisticmatch of the recovered gun to the bullets recovered from the crime scene and the bodiesof the victims, documentation with respect to the rental of the Ford Fusion by thedefendant's girlfriend, and records of calls made to and from the defendant's girlfriend'scell phone.
During summation, defense counsel argued that Henderson's DNA was recovered[*2]from various parts of the gun that was used in theshooting, thereby suggesting that there was at least a reasonable doubt as to whether thedefendant was the shooter. Thereafter, in summation, the prosecutor addressed thepresence, on the gun, of DNA from unidentifiable sources and stated, "What I wouldargue to you is that it's the murderer's DNA, the defendant's DNA. There is nothingcontrary to that, number one. And number two, we have evidence that proves to you thathe was firing into the vehicle and handling it." No objection was interposed by defensecounsel to that assertion.
The defendant argues on appeal that the judgment of conviction should be reversedon the ground that the prosecutor improperly asserted, during summation, that thedefendant's DNA was actually found on the murder weapon. We reject that contention.First, any contention regarding this aspect of the prosecutor's summation is unpreservedfor appellate review (see CPL 470.05; People v Barcero, 116 AD3d 1060 [2014]). In any event,the prosecutor's remark about DNA was responsive to defense counsel's earliersummation argument suggesting that Henderson was the shooter. The prosecutor drew aninference from the evidence, linking McKie's testimony identifying the defendant as theshooter with the scientific evidence that DNA other than Henderson's was found on theweapon used in the crime (see People v McHarris, 297 AD2d 824, 825 [2002]).The jury could evaluate the inference that the prosecutor suggested that it draw for whatit was worth. Moreover, the jury was instructed that it was to resolve issues of fact basedsolely on the evidence, and that the attorney's arguments were not evidence (seePeople v Valdes, 291 AD2d 513, 514 [2002]; People v Turner, 141 AD2d878, 880 [1988]). We disagree with our learned dissenting colleague that the prosecutorpropounded facts not in evidence, as the remark was prefaced by the phrase, "I wouldargue that," which falls short of any misrepresentation to the jury about the DNA testresults or the parties' stipulation about those results. Indeed, at no time did the prosecutorever state to the jury that any scientific testing definitively identified the defendant'sDNA upon the weapon. Under the circumstances of this case, the prosecutor's summationcomment with respect to DNA evidence was not improper, and there is no merit to thedefendant's contention that cumulative errors warrant a new trial.
The defendant's girlfriend, who was an alibi witness, testified on cross-examinationthat, over the course of the entire night on which Sears was murdered, she may have beensending text messages from her cell phone to the defendant's cell phone while both sheand the defendant were inside of her two-bedroom apartment. She further testified that,over the course of the entire night that Henderson was murdered, she had numerousconversations on her cell phone. Records from the cell phone company that providedservice to the defendant's girlfriend revealed that, on the night of the Sears murder, andinto the next morning, the defendant and his girlfriend were engaged in numeroustelephone conversations on their cell phones, and not sending and receiving textmessages, thus undercutting the girlfriend's testimony that the defendant was with her inher apartment over that period of time. Additional records from the same providerindicated that the calls made from and received by the girlfriend's cell phone on the nightof the Henderson murder did not involve the defendant's cell phone. During summation,the prosecutor, in reference to the girlfriend's testimony, rhetorically asked:"Coincidence? Or was something else going on with [the defendant's girlfriend] and herphone on the two nights of two separate and distinct murders?" Contrary to thedefendant's contention, that portion of the prosecutor's summation did not improperlysuggest that the defendant was guilty of the Henderson murder, which was not at issueduring the trial (see People v Ashwal, 39 NY2d 105, 110 [1976]). Instead, underthe particular facts of this case, we find no reason to reject the People's argument that theremark merely undermined the credibility of the defendant's girlfriend as an alibi witnessby pointing out to the jury that, contrary to her testimony, the telephone calls between thedefendant and her on the night of the Sears murder suggested that the defendant was notat her apartment, and that the telephone calls to and from her cell phone on the night ofthe Henderson murder may have implicated her as an accessory to that crime (seePeople v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d at109; People v Mobley, 116AD3d 1067 [2014]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d [*3]342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the People properly elicited testimony fromhis girlfriend during cross-examination regarding her delay in coming forward to theauthorities with certain exculpatory information. Before a defense witness may becross-examined regarding his or her failure to come forward with exculpatoryinformation at an earlier date, certain foundational requirements must first be met (seePeople v Dawson, 50 NY2d 311, 321 n 4 [1980]). Here, the prosecutor laid thenecessary foundation prior to cross-examining the defendant's girlfriend about herapparent delay in informing law enforcement authorities of the defendant's alibi. Therecord indicates that, during a bench conference, it was ascertained that the defendant'sgirlfriend had not refrained from speaking to authorities under the advice of defensecounsel. Moreover, the court instructed the jury that the defendant's girlfriend had noobligation to volunteer exculpatory information to law enforcement authorities. Underthese circumstances, the People properly elicited evidence during the cross-examinationof the defendant's girlfriend that she delayed in contacting the authorities withexculpatory evidence (see People v Dawson, 50 NY2d at 322-323).
The defendant's contention that the verdict was repugnant is unpreserved forappellate review, as he failed to raise this issue before the discharge of the jury (seePeople v Alfaro, 66 NY2d 985, 987 [1985]; People v Ariza, 77 AD3d 844 [2010]). In any event, thedefendant's contention is without merit (see People v Francois, 85 AD3d 813 [2011]; People v Gross, 71 AD3d1526 [2010]; People v Stitt, 201 AD2d 593 [1994]; see generally Peoplev Tucker, 55 NY2d 1 [1981]).
The defendant's remaining contention is not properly before this Court. Dillon, J.P.,Balkin and Barros, JJ., concur.
Cohen, J., dissents and votes to reverse the judgment, on the law and as a matter ofdiscretion in the interest of justice, and to order a new trial, with the followingmemorandum: While my colleagues in the majority conclude that the prosecutor'ssummation remarks constituted fair comment on the evidence, were responsive toarguments and theories presented in defense counsel's summation, or were permissiblerhetorical comment, I disagree.
On November 15, 2009, in Staten Island, Dante McKie was driving a white Lexus, inwhich Kamik Sears was riding in the front passenger seat and Andre Scott was riding inthe back seat. Another vehicle pulled up along the driver's side of the Lexus and shotswere fired, injuring McKie and killing Sears. McKie then drove to his home at 44 YaleStreet, Staten Island, leaving Sears in the car. When the police arrived, they found Sears'sbody in the car, and thereafter had McKie transported to a nearby hospital. Scott spokewith the investigating detective, Girolamo Campione, at 44 Yale Street, and told him thathe did not see the shooter, explaining that, just as he saw the gun, he ducked down intothe car and then heard the shots. When Detective Campione initially interviewed McKiein the hospital at approximately 2:20 a.m. on November 16, 2009, a "coherent" McKietold him that he did not see the shooter, and did not see the car from which the shotswere fired. During these early morning hours, a warrant was obtained to search McKie'sapartment at 44 Yale Street, from which drugs were recovered. At approximately 3:00a.m., another detective received a tip from an unknown confidential informantidentifying both the defendant and Kyree Henderson as individuals of interest inconnection with the shooting.
Detective Campione thereafter prepared two photo arrays, one including aphotograph of the defendant, and one including a photograph of Henderson. Atapproximately 6:00 a.m. on November 16, 2009, Detective Campione returned to thehospital, after recovering the drugs from McKie's apartment, to see if McKie couldidentify the shooter, even though McKie had previously stated that he did not see theshooter. Detective Campione testified at trial that McKie then was able to identify thedefendant from one of the arrays as "the one that did the shooting," and that McKie,while recognizing Henderson, told Detective Campione that Henderson "wasn'tthere."
[*4] Two days after the shooting, themurder weapon was recovered from Henderson's dead body, and DNA was recoveredfrom the weapon. The major portion of the genetic material in the DNA samples thatwere recovered belonged to Henderson, and there were other sources of lesser amountsof DNA that could not be identified or determined. During the trial, the prosecutor anddefense counsel stipulated to the fact that DNA samples containing a mixture of DNAsources were found on the murder weapon, but that only the DNA ofHenderson—the major contributor to the DNA—could be identified.
In summing up to the jury, a prosecutor "must stay within the four corners of theevidence and avoid irrelevant and inflammatory comments which have a tendency toprejudice the jury against the accused" (People v Spann, 82 AD3d 1013, 1015 [2011] [internalquotation marks omitted], quoting People v Bartolomeo, 126 AD2d 375, 390[1987]; see People v Ashwal, 39 NY2d 105, 109 [1976]). Thus, a prosecutor"may not refer to matters not in evidence or call upon the jury to draw conclusions whichare not fairly inferrable from the evidence" (People v Ashwal, 39 NY2d at109-110 [citations omitted]).
In the instant matter, the prosecutor, despite the stipulation described above, andwithout any foundation to support her argument, stated as follows during hersummation:
"What about DNA? DNA on the gun? Stipulation it actually went to the lab, it'srecovered from several locations on the gun. The back strap, the trigger, the magazine, alldifferent locations, some of which is Kyree Henderson's and some of which cannot bedetermined. Which means that someone else's DNA is on the gun, but the DNA lab isunable to determine whose it is.
"What I would argue to you is that it's the murderer's DNA, the defendant's DNA.There is nothing contrary to that, number one. And number two, we have evidence thatproves to you that he was firing into the vehicle and handling it. Yet Kyree Hendersonwas obviously the last person that touched it."
Thus, the prosecutor propounded facts not in evidence when she suggested that thedefendant's DNA was found on the murder weapon, when forensic experts made no suchfinding.
Further, the prosecutor, again without any foundation to support her contention,strongly implied that the defendant, in addition to committing the crimes charged inconnection with the instant matter, may have also been responsible for the subsequentdeath of Henderson. There was simply no evidence to connect the defendant to thisuncharged crime (see People vRiback, 13 NY3d 416 [2009]).
To the extent that the defendant's claims of prosecutorial misconduct and overreachare unpreserved for appellate review, they should nevertheless be reviewed in theexercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; Peoplev Spann, 82 AD3d at 1015; People v Cobb, 104 AD2d 656, 658 [1984]).
In my view, the comments made by the prosecutor during summation were soinflammatory and prejudicial as to deprive the defendant of a fair trial (see People vAshwal, 39 NY2d 105 [1976]; People v Spann, 82 AD3d 1013 [2011]; People vBrown, 256 AD2d 414 [1998]; People v Cobb, 104 AD2d at 658; see also People v Mehmood,112 AD3d 850 [2013]).
The cumulative effect of these errors cannot be said to be harmless in this case,where the identification of the defendant rested solely upon the testimony of McKie,who, when first interviewed, stated that he neither saw the shooter nor the car fromwhich the shots were fired. It was only after McKie was visited by Detective Campione,and after drugs were recovered from McKie's apartment on the night of theshooting—for which, notably, McKie was neither arrested norprosecuted—that McKie was able to identify the defendant as the perpetrator ofthe crimes charged in this matter. Accordingly, since the evidence of the defendant's guiltwas not overwhelming, the errors cannot be deemed harmless (see People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Nor did the trial court's jury charge eliminate the prejudicial effect of anyprosecutorial misconduct (seegenerally People v Riback, 13 NY3d 416 [2009]). A trial court's instruction[*5]to a jury to disregard matters improperly brought totheir attention cannot "always assure elimination of the harm already occasioned"(People v Calabria, 94 NY2d 519, 523 [2000], quoting People vCarborano, 301 NY 39, 42-43 [1950]).
Accordingly, I respectfully dissent, and would reverse the judgment and order a newtrial.