| People v Days |
| 2015 NY Slip Op 06731 [131 AD3d 972] |
| September 2, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Selwyn B. Days, Appellant. |
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y. (RobertoFinzi, William Clareman, and Katherine Stella of counsel), and Glenn A. Garber, NewYork, N.Y. (Anne G. Feldman and Rebecca E. Freedman of counsel), for appellant (onebrief filed).
Janet DiFiore, District Attorney, White Plains, N.Y. (Steven Bender, LaurieSapakoff, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Warhit, J.), rendered December 20, 2011, convicting him of murder in the seconddegree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and in the exercise of discretion,the defendant's motion for leave to introduce expert testimony on the issue of falseconfessions is granted, and a new trial ordered in accordance herewith, to be preceded bya hearing to determine the scope of the expert testimony on the issue of falseconfessions.
This case involves the murders in November 1996 of an elderly man and his homehealth aide in the man's home in Eastchester. By early 1999, the investigating lawenforcement officials had exhausted all available leads, and the investigation wasdeclared a "cold case." Approximately two years later, on February 15, 2001, thedefendant was arrested for violating an order of protection that his former girlfriend hadobtained against him in September 2000. Later that day, the defendant's former girlfriendinformed the police that, during an altercation with her several months prior to that arrest,the defendant told her that he had killed two people. After an almost seven-hourinterrogation, of which approximately the last 75 minutes were videotaped, the defendantconfessed to the murders. When the defendant began his videotaped confession, he hadbeen in custody for almost 14 hours, from approximately 11:00 a.m. on the day of hisarrest until 1:41 a.m. the following day.
The defendant's first trial ended in a hung jury in 2003. After a second trial in 2004,the defendant was convicted of two counts of murder in the second degree, and thisCourt affirmed his conviction (see People v Days, 31 AD3d 574 [2006]). Beginning inApril 2007, the defendant filed a series of motions pursuant to CPL 440.10 to vacate hisconviction, based upon allegations of ineffective assistance of counsel, among otherclaims. After a hearing, the County Court determined that the defendant's counsel at hissecond trial was ineffective, vacated the judgment, and ordered a new trial (see People v Days, 26 Misc 3d1205[A], 2009 NY Slip Op 52667[U] [Westchester [*2]County Ct 2009]). The defendant's third trial, conducted inFebruary 2011, again ended with a hung jury.
Thereafter, the defendant was tried a fourth time, after which the jury convicted himof two counts of murder in the second degree. The instant appeal is from the December20, 2011, judgment rendered after the fourth trial.
Contrary to the defendant's contention, the County Court properly quashed thedefendant's subpoena duces tecum seeking the names of 64 persons whose DNA profileswere indexed in the New York State Combined DNA Index System, or CODIS. Thedefendant sought the release of these names, contending that the DNA samples recoveredfrom the murder weapon potentially matched the DNA profiles of those 64 persons. Thedefendant thus argued that any one of those persons may have had a connection to thecrimes at issue. The defendant, however, failed to set forth a sufficient factual predicatein support of the subpoena to rebut the finding of the New York State Division ofCriminal Justice Services that there was no scientific basis for selecting these 64individuals for disclosure of either their names or complete DNA profiles (see People v Kozlowski, 11NY3d 223, 241 [2008]; People v Gissendanner, 48 NY2d 543, 550 [1979];Matter of Constantine v Leto, 157 AD2d 376, 378 [1990], affd 77 NY2d975 [1991]; see also 9 NYCRR 6192.3).
Further, the County Court providently exercised its discretion in granting thePeople's request for a missing witness charge with respect to the defendant's mother. Atthe fourth trial, the defendant elicited testimony from three alibi witnesses. The Peoplesustained their initial burden of showing that the defendant failed to call his mother as awitness, which he did at his first and second trials, and that she could have been expectedto have material knowledge about his alibi, because he was reportedly living with her inNorth Carolina at the time the crime was committed. The burden then shifted to thedefendant, who failed to "demonstrate that the [missing witness] charge would not beappropriate" (People v Gonzalez, 68 NY2d 424, 428 [1986]; see People vSavinon, 100 NY2d 192, 196 [2003]; People v Macana, 84 NY2d 173,177-178 [1994]). Contrary to the defendant's contention, his mother's testimony wouldnot have been cumulative of the alibi testimony presented by the other witnesses at trial(see People v Dantzler, 53AD3d 504 [2008]; People v Torres, 255 AD2d 129 [1998]).
Additionally, contrary to the defendant's contention, there was a sufficient factualpredicate to support a jury instruction regarding flight as evidence of consciousness ofguilt (see People v Umana,76 AD3d 1111 [2010]; People v Robinson, 10 AD3d 696 [2004]; see alsoPeople v Jamison, 173 AD2d 341, 342 [1991]).
Contrary to the defendant's contention, the County Court did not err in permitting thePeople to admit the prior trial testimony of the defendant's former girlfriend on theground that she was "unavailable" to testify within the meaning of CPL 670.10 by virtueof her intentionally feigned loss of memory and a finding of contempt entered against herbased on her repeated refusal to testify at the defendant's fourth trial. The ConfrontationClause of the Sixth Amendment to the United States Constitution prohibits the"admission of testimonial statements of a witness who did not appear at trial unless [thewitness] was unavailable to testify, and the defendant ha[s] had a prior opportunity forcross-examination" (Crawford v Washington, 541 US 36, 53-54 [2004]; see People v Pealer, 20 NY3d447, 453 [2013]). "[T]he basic objective of the Confrontation Clause. . . is to prevent the accused from being deprived of the opportunity tocross-examine the declarant about statements taken for use at trial" (Michigan vBryant, 562 US 344, 358 [2011]; see People v Pealer, 20 NY3d at 453).
Criminal Procedure Law § 670.10 (1) codifies several exceptions to theright of confrontation, authorizing the use of prior trial testimony where a witness isunavailable due to death, illness, or incapacity, as well as in situations where the witnesscannot with due diligence be found or brought before the court (see People vDiaz, 97 NY2d 109, 114 [2001]; People v Arroyo, 54 NY2d 567, 569-574[1982]). In addition, a witness's assertion of the Fifth Amendment privilege againstself-incrimination renders him or her unavailable within the meaning of CPL 670.10 (see People v Whitley, 14 AD3d403, 404 [2005]; People v Johns, 297 AD2d 645, 646 [2002]; People vOrtiz, 209 AD2d 332, 333 [1994]; People v Varsos, 182 AD2d 508, 509[1992]; People v Chavers, 82 Misc 2d 201, 204 [Sup Ct, NY County 1975];see also People v Brown, 26 NY2d 88, 93 [1970]). The Appellate Division, ThirdDepartment, and the Appellate Division, Fourth Department, have further held that, evenif a witness does not [*3]assert his or her FifthAmendment privilege, the witness's persistent refusal to testify, coupled with a threat orfinding of contempt, may render the witness unavailable within the meaning of CPL670.10. For example, in Peoplev Knowles (79 AD3d 16 [2010]), the Third Department held that the admissionof a witness's testimony from a prior trial did not violate CPL 670.10 because the witnessrefused to testify and was consequently held in contempt for that refusal (id. at24). The Third Department observed that the witness was extensively cross-examined atthe prior trial, and that there were "protracted good faith efforts to induce her to testify inperson" (id. at 24; see also People v Spencer, 219 AD2d 259, 264 [1996];People v Muccia, 139 AD2d 838 [1988]). In People v Barber (2 AD3d 1290 [2003]), the trial court, aftera hearing, held a witness in contempt because he persistently refused to testify despite thecourt's order to do so. Under those circumstances, the Fourth Department held that thewitness "was unavailable to testify," and permitted the People to present prior trialtestimony in evidence pursuant to CPL 670.10 (People v Barber, 2 AD3d at1291).
Here, the defendant's former girlfriend appeared as the People's witness at thedefendant's first trial, and provided incriminating evidence against him, including hisremark that he had "gotten away with" killing an "old man" and a woman (People v Days, 26 Misc 3d1205[A], 2009 NY Slip Op 52667[U], *14 [2009]). At the second trial, the formergirlfriend's testimony from the first trial was admitted into evidence after the Peoplemade a proper showing that, notwithstanding their due diligence, she could not bebrought before the court (seePeople v Days, 31 AD3d 574 [2006], citing People v Diaz, 97 NY2d at117; Matter of Mayyhew,33 Misc 3d 1222[A], 2011 NY Slip Op 52054[U] [Westchester County Ct 2011]).At the defendant's third trial, the defendant's former girlfriend refused to testify, and wascompelled to do so pursuant to a material witness order (see Matter of Mayyhew, 33Misc 3d 1222[A], 2011 NY Slip Op 52054[U] [2011]). At the third trial, shetestified that she had been in a relationship with the defendant, and that a certain incidentoccurred in Mount Vernon. However, she testified that she could not remember that thedefendant told her that he had killed two people, and asserted that her prior testimony didnot refresh her recollection. Moreover, the defendant's former girlfriend testified that shecould not remember having the defendant arrested in February 2001 for violating anorder of protection issued in September 2000.
At the defendant's fourth trial, the defendant's former girlfriend was once againcompelled to appear as a witness for the prosecution, again pursuant to a material witnessorder. She answered several basic questions. Among other things, the defendant's formergirlfriend testified that, although she currently lived in South Carolina, she previouslylived in Mount Vernon and, during that time, she came to know the defendant. However,she steadfastly maintained that she did not recall any substantive details about herintimate relationship or interactions with the defendant, including his alleged confessionto her. Even after reviewing a transcript of her testimony from the defendant's first trial,she said that she did not remember testifying against him at the first trial. The defendant'sformer girlfriend was excused as a witness, without the defense posing a single questionto her.
Upon a motion by the People, the County Court directed a hearing during the courseof the trial as to whether the defendant's former girlfriend was feigning her memory loss,and consequently whether she should be held in contempt. After the hearing, the courtfound that she "intentionally feigned memory loss in an unlawful attempt to evadeanswering lawfully posed questions after she took the witness stand and affirmed to tellthe truth" (Matter ofMayyhew, 33 Misc 3d 1222[A], 2011 NY Slip Op 52054[U], *7 [2011], citingJudiciary Law § 750 [5]). Based on this finding, the court held her incontempt, and incarcerated her for a period of five days (see Matter of Mayyhew, 33Misc 3d 1222[A], 2011 NY Slip Op 52054[U] [2011]). As pertinent to this appeal,the court found that the defendant's former girlfriend was unavailable within the meaningof CPL 670.10 because she had feigned her memory loss and, therefore, it permitted thePeople to admit her prior testimony from the first and third trials into evidence.
Under these particular circumstances, the County Court did not err in deeming thedefendant's former girlfriend to be unavailable within the meaning of CPL 670.10, and inadmitting her prior trial testimony into evidence (see CPL 670.10; cf. Peoplev Knowles, 79 AD3d at 24; People v Barber, 2 AD3d 1290 [2003]; People vSpencer, 219 AD2d at 264; cf. also People v Whitley, 14 AD3d at 404;People v Johns, 297 AD2d at 646).
[*4] However, the County Court improvidently exercised its discretion in denying thedefendant's motion for leave to introduce expert testimony on the issue of falseconfessions (see People vBedessie, 19 NY3d 147 [2012]; see also Frye v United States, 293 F1013 [DC Cir 1923]). Notwithstanding the defendant's extensive proffer, which includedsubmissions from two experts, as well as the videotaped confession, the court summarilyrejected his motion for leave to introduce expert testimony on the issue of falseconfessions, on the ground that this subject is "within the understanding of an averagejuror," and that other New York courts had held such testimony to be inadmissible.
In 2012, in People v Bedessie, the Court of Appeals first considered the"admissibility of expert testimony proffered on the issue of the reliability of a confession"(19 NY3d at 149), and observed that the "phenomenon of false confessions" is not onlygenuine, but has "moved from the realm of startling hypothesis into that of commonknowledge, if not conventional wisdom" (People v Bedessie, 19 NY3d at 156;see Commonwealth v Hoose, 467 Mass 395, 5 NE3d 843 [2014]; Dorothy Heyl,The Limits of Deception: An End to the Use of Lies and Trickery in CustodialInterrogations to Elicit the "Truth"?, 77 Alb L Rev 931, 931 [2013/2014]). TheCourt of Appeals referred to its 2001 decision in People v Lee (96 NY2d 157[2001])—which considered the issue of the admissibility of expert testimony onthe reliability of eyewitness identification—as "instructive" with respect to thequestion of whether expert testimony about false confessions is admissible in certaincases (People v Bedessie, 19 NY3d at 156).
In Lee, the Court of Appeals laid out "broad principles" governing theadmissibility of expert psychological testimony. The Court reiterated these principles inBedessie: " 'the admissibility and limits of expert testimony lie primarilyin the sound discretion of the trial court,' which should be guided by 'whether theproffered expert testimony would aid a lay jury in reaching a verdict'; 'courts should bewary not to exclude such testimony merely because, to some degree, it invades the jury'sprovince'; '[d]espite the fact that jurors may be familiar from their own experience withfactors relevant to the reliability' of the evidence at issue, 'it cannot be said thatpsychological studies' bearing on reliability 'are within the ken of the typicaljuror' " (People v Bedessie, 19 NY3d at 156, quoting People vLee, 96 NY2d at 162). The Court of Appeals emphasized that "an expert's testimony,by its very nature, always to 'some degree . . . invades the jury's province',and so this circumstance alone is not an adequate basis for rejecting expert testimony"(People v Bedessie, 19 NY3d at 157, quoting People v Lee, 96 NY2d at162).
In Bedessie, a 5-2 decision, the majority ultimately determined that thedefendant's expert "had nothing to say that was relevant to the [particular] circumstancesof th[e] case," and, therefore, the proffered expert testimony "would not assist the jury inevaluating the voluntariness and truthfulness of defendant's confession or reaching averdict" (People v Bedessie, 19 NY3d at 157). However, the majority offeredguidance as to the circumstances warranting the admission of expert testimony on falseconfessions, stating that research "in the area of false confessions purports to show thatcertain types of defendants are more likely to be coerced into giving a falseconfession—e.g., individuals who are highly compliant or intellectually impairedor suffer from a diagnosable psychiatric disorder" (id. at 159, citing Danielle E.Chojnacki et al., An Empirical Basis for the Admission of Expert Testimony on FalseConfessions, 40 Ariz St LJ 1, 15 [Spring 2008]).
Significantly, the majority opinion in Bedessie ended with this clear andpowerful message: "False confessions that precipitate a wrongful conviction manifestlyharm the defendant, the crime victim, society and the criminal justice system. Andthere is no doubt that experts in such disciplines as [*5]psychiatry and psychology or the social sciences may offervaluable testimony to educate a jury about those factors of personality and situation thatthe relevant scientific community considers to be associated with false confessions.While the expert may not testify as to whether a particular defendant's confessionwas or was not reliable, the expert's proffer must be relevant to the [particular] defendantand interrogation before the court" (People v Bedessie, 19 NY3d at 161[emphasis added]).
Under Lee and Bedessie, it cannot be said that psychological studiesbearing on the reliability of a confession are, as a general matter, "within the ken of thetypical juror" (People v Lee, 96 NY2d at 162; see People v Bedessie, 19NY3d at 156-157). Accordingly, it was error for the County Court to conclude that theissue of false confessions is within the understanding of an average juror and to precludethe proffered testimony on this ground. Further, under the circumstances of this case, thecourt improvidently exercised its discretion in denying the defendant's motion for leaveto admit expert testimony on that subject.
Here, unlike the circumstances in Bedessie, the proffered expert testimonywas relevant to this particular defendant and the particular circumstances of the case,including the approximately seven-hour interrogation, the videotaped confession, and thelack of physical evidence or eyewitness testimony linking the defendant to the crime(see People v Bedessie, 19 NY3d at 161; People v Joubert, 125 AD3d 686 [2015]; cf. People v Roman, 125 AD3d515, 515 [2015]; People vRosario, 100 AD3d 660, 661 [2012]).
In addition to reports from two relevant experts, the County Court was presentedwith a 75-minute video of the defendant's late-night confession, taken after the defendantwas in custody for almost 14 hours and interrogated for approximately seven of thosealmost 14 hours. Among other things, the video shows that the defendant, whose handswere cuffed in front of him during the interview, spoke slowly and sat in a slouchedposition for a substantial portion of the interview. Further, the officers repeatedlyemployed suggestive and leading questions, fed the defendant specific details related tothe crime scene, and used rapport-building techniques.
Dr. Jessica Pearson, a clinical and forensic psychologist, interviewed the defendant,reviewed his educational and mental health records, and reviewed the videotapedconfession. She opined that the defendant had intellectual deficits and personality traitsthat rendered him vulnerable to giving a false confession, especially where, as here, thepolice posed a number of suggestive or leading questions, the interrogation wasparticularly long, and the police used rapport-building techniques to gain the defendant'strust. With respect to her opinion that the defendant had borderline intelligence, Dr.Pearson reported that his full scale IQ was only 85 at age 14, and he was enrolled inspecial education classes in the ninth grade.
Dr. Pearson's records also reveal that the defendant had been hospitalized for mentalillness on multiple occasions, and medication that he took to treat his lupus conditioncould cause or exacerbate psychiatric symptoms. Significantly, the day after hisconfession, the defendant was diagnosed with "psychosis not otherwise specified," andprescribed Haldol, an antipsychotic medication used to treat schizophrenia and acutepsychosis. The defendant reported that the Haldol suppressed the voices he had beenhearing, which permits a fair inference that he was suffering from auditory hallucinationsat the time of his interrogation. Although the County Court permitted Dr. Pearson totestify at the defendant's trial about the discrete issue of whether the defendant was ableto understand the Miranda warnings he was given (see Miranda vArizona, 384 US 436 [1966]), she was not permitted to testify on the issue of falseconfessions.
The defendant's second proffered expert, Dr. Richard A. Leo, a psychologist who hasboth a Ph.D. in psychology and a J.D. degree, stated that he was an expert in thepsychology of police interrogation, police interrogation techniques, psychologicalcoercion, and false confessions. Consistent with Dr. Pearson's opinion, Dr. Leo opinedthat a number of individual and situational factors associated with the defendant'sinterrogation and confession created a heightened risk of a [*6]false confession in this case. Among other things, Dr. Leoobserved that the confession did not fit the facts of the crime, and was not supported byphysical evidence. He further discussed a number of factors present in this case that areassociated with false confessions, including the defendant's low intelligence, highsuggestibility, mental illness, and the extraordinary length of his custody andinterrogation. Dr. Leo specifically opined that the defendant's "mental handicapsunquestionably left him especially vulnerable to the pressures of accusatoryinterrogation, especially an interrogation as long as this one," and that this "put him at ahigh risk of giving or agreeing to a false confession."
Upon our consideration of the submissions and opinions of both experts, we find thatthe defendant made a thorough proffer that he was "more likely to be coerced into givinga false confession" than other individuals. His proffer clearly indicated that he wasintellectually impaired, highly compliant, and suffered from a diagnosable psychiatricdisorder, and also that the techniques used during the interrogation were likely to elicit afalse confession from him (People v Bedessie, 19 NY3d at 159). Moreover, inlight of the foregoing, the fact that no one had videotaped the nearly six hours of theinterrogation that had been conducted before the confession was made raises significantconcerns.
Further, there was little evidence to corroborate the defendant's confession in thiscase, and his conviction turned almost entirely on his videotaped confession (cf.People v Bedessie, 19 NY3d at 153-154, 157, 161; People v LeGrand, 8 NY3d449, 452, 457-459 [2007]). There was no DNA or other physical evidence linkingthe defendant to the crime, and there was no eyewitness testimony. Although the CountyCourt admitted into evidence prior trial testimony from the defendant's former girlfriendthat, during an altercation between them in November 2000, he told her that hecommitted two murders, she did not report the defendant's statement to police forapproximately three months, and she only reported the statement immediately after shehad him arrested for allegedly violating an order of protection by approaching her home.This limited incriminating evidence did not undermine the usefulness of expert testimonyon the issue of false confessions in this case.
For all of these reasons, the County Court improvidently exercised its discretion indenying the defendant's motion for leave to introduce expert testimony on the subject offalse confessions. As the evidence in this case was not overwhelming, the court's errorwas not harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; compare People v Rivers, 18NY3d 222, 228 [2011], with People v McCullough, 126 AD3d 1452, 1452-1455[2015], lv granted 25 NY3d 1079 [2015]). Thus, this error warrants reversal anda new trial, at which the defendant, if he so chooses, will be permitted to present experttestimony on the issue of false confessions, to be preceded by a hearing to determine thescope of the expert testimony on the issue of false confessions.
Since there must be a new trial, we note that the County Court improvidentlyexercised its discretion in permitting the People to belatedly amend the bill of particulars.The indictment and the initial bill of particulars alleged that the victims were killedbetween November 19, 1996, and November 21, 1996. At the defendant's first andsecond trials, the medical examiner testified that the time of death for both victims waswithin the range of two to three days prior to November 21, 1996, when the bodies werediscovered. In connection with the defendant's CPL 440.10 motion to vacate theconviction after his second trial, he presented alibi witnesses to establish that he was notin New York State from November 19, 1996, through November 21, 1996, but, rather,was in Goldsboro, North Carolina during that time (see People v Days, 26 Misc 3d 1205[A], 2009 NY Slip Op52667[U] [2009]).
Thereafter, in preparation for the defendant's third trial, the People prepared anamended bill of particulars reciting, in pertinent part, that "[b]ased upon medicalevidence, witness statements and telephone records, these murders occurred two or threedays prior to the discovery of the two bodies, including and encompassing the eveninghours of November 18, 1996" (emphasis added). Thus, the People sought toextend the period during which the victims may have died to include November 18,1996, knowing that the defendant's alibi witnesses previously indicated that thedefendant was present in North Carolina beginning on November 19, 1996. Thedefendant moved to dismiss the indictment on the ground that the amendment deprivedhim of due process or, alternatively, to strike the amended bill of particulars, but thatmotion was denied in an order dated [*7]May 19, 2010.This significant amendment to the bill of particulars after 10 years had elapsed and twoprior trials had been conducted in which the People alleged that the victims died betweenNovember 19, 1996, and November 21, 1996, substantially prejudiced the defendant,particularly because he secured alibi witnesses who testified that he was in NorthCarolina on those specific dates (see CPL 200.95 [8]).
Accordingly, the judgment must be reversed, and we remit the matter to the CountyCourt, Westchester County, for a new trial in accordance with the findings and rulingscontained in this decision and order. Mastro, J.P., Leventhal, Hall and Maltese, JJ.,concur.