| People v Redd |
| 2016 NY Slip Op 05392 [141 AD3d 546] |
| July 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Redd, Appellant. |
Lynn W. L. Fahey, New York, NY (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and William H. Branigan of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered January 4, 2012, convicting him of murder in the second degree,abortion in the second degree, and criminal possession of a weapon in the fourth degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppresshis statements to law enforcement officials.
Ordered that the judgment is reversed, as a matter of discretion in the interest ofjustice, and a new trial is ordered.
The evidence presented at the suppression hearing and at trial established that onOctober 25, 2008, at approximately 7:40 p.m., the police were called to an apartment onLefferts Boulevard in Queens where they found the body of 25-year-old Niasha Delain.Delain, who was nine months pregnant, had been stabbed to death. Her mother and thedefendant, who was the victim's boyfriend, were both at the apartment when the policearrived. The defendant agreed to talk to the police and accompanied them to the precinctstation house, where he was placed in an interview room at around 10:00 p.m. Shortlyafter midnight, the defendant received Miranda warnings (see Miranda vArizona, 384 US 436 [1966]). The defendant remained at the station house forapproximately 27 hours, after which he was released.
The police searched the victim's apartment, the defendant's two cars, and theresidences of the defendant's mother, father, and grandparents, but did not find a weaponor other physical evidence connecting the defendant to the murder. The defendant toldthe police that he was asleep at his mother's home in Queens, approximately3
Eight days after the murder, Jinette Gerve, a neighbor who resided in the apartment[*2]above the victim's apartment, reported to the policethat between 5:30 a.m. and 6:00 a.m. on October 25, 2008, she heard a woman in theapartment below hers screaming the defendant's first name, along with the words, "Stop,""No," and "Don't do that." This neighbor testified at trial that she had not come forwardearlier due to fear and uncertainty concerning the significance of this information. Sheadmitted that she received assistance from the District Attorney's office with regard toher residence, employment, and immigration status.
The hearing court properly denied suppression of the statements the defendant madeat the precinct station house, as those statements either were not made in response tocustodial interrogation (seePeople v Carvey, 60 AD3d 781 [2009]), or were made following theadministration of Miranda warnings and the defendant's knowing and voluntarywaiver of his Miranda rights (see People v Sepulveda, 40 AD3d 1014 [2007]; People v Rushion, 26 AD3d448 [2006]).
Viewing the evidence in the light most favorable to the prosecution, we find that itwas legally sufficient to establish the defendant's guilt of the charged crimes beyond areasonable doubt (see People vGorham, 72 AD3d 1108, 1109 [2010]; People v Doyle, 48 AD3d 961 [2008]), and the verdict ofguilt was not against the weight of the evidence (see People v Chelley, 121 AD3d 1505, 1506 [2014]; People v Johnson, 49 AD3d664 [2008]; People vDoyle, 48 AD3d 961 [2008]). The jury was in the best position to resolve allcredibility issues (see People vDoyle, 48 AD3d 961 [2008]).
However, the judgment of conviction must be reversed and a new trial ordered as aresult of pervasive prosecutorial misconduct. During opening statements as well as onsummation, the prosecutor repeatedly engaged in improper conduct, including misstatingthe evidence, vouching for the credibility of witnesses with regard to significant aspectsof the People's case, calling for speculation by the jury, seeking to inflame the jury andarouse its sympathy, and improperly denigrating the defense (see People v Moye, 12 NY3d743 [2009]; People vSpence, 92 AD3d 905 [2012]; People v Anderson, 83 AD3d 854, 856-857 [2011]; People v Spann, 82 AD3d1013 [2011]; People v Walters, 251 AD2d 433, 434 [1998]; People vGomez, 156 AD2d 462, 463-464 [1989]). Although objections to some of theremarks below were sustained, we nevertheless include them in order to provide a morecomplete picture of the pervasiveness of the misconduct at issue on this appeal.
For instance, over defense counsel's objection, the prosecutor brought up, duringopening statement, irrelevant and prejudicial evidence that the defendant had dated thevictim's aunt from 2000 to 2003, but the relationship "did not end happily," and althoughthe victim's parents had never met the defendant, they certainly knew who he was and"wouldn't be fond to hear that [their daughter] was now involved with [the defendant]."The prosecutor then gratuitously insinuated that the defendant was a person of badcharacter by stating, "This was a problem. Her family didn't want [the victim] to date himbecause—I'm not going to get into that."
Still during opening statement, the prosecutor stated that "three little cuts" found onthe defendant's right hand occurred during the stabbing, theorizing that "if you're holdinga knife . . . and you use it repeatedly to stab somebody, one, that can getslippery a little bit with blood and two, if the point of that knife hits something inside thebody like a bone or a baby's head or anything like that, the blade may stop for a moment,but the object in motion, your hand, continues to move unless there is [a] cross guard."Although defense counsel objected to this remark, the trial court did not rule on theobjection. The prosecutor then repeated essentially the same statement—againover defense counsel's objection—and the court's only response was to say "[t]hisis summation." Significantly, none of the prosecution witnesses later testified that thenature and location of the small cuts on the defendant's hand were consistent with aninjury sustained while holding a knife (cf. People v Silvestre, 118 AD3d 567, 567 [2014]).
During summation, the prosecutor flatly misstated the medical examiner's testimonyregarding the estimated time of death, quoting her as saying "I found nothing in myautopsy that would be inconsistent with the time of death of six A.M." and asking,rhetorically, "Can we get more clear than this ladies and gentlemen?" In fact, the medicalexaminer's testimony was, "I found nothing in my autopsy that would be consistent withthe time of death of six a.m. the previous day." While defense counsel objected to theprosecutor's misstatement, the trial court's only response was to say "[t]hat is the jury'sdetermination."
[*3] Echoing the earlier remarkfrom his opening statement, the prosecutor again sought to explain, on summation, thesmall cuts on the defendant's hands by saying that "during this repeated stabbing, youmay get yourself a little cut there a little cut there and a little cut there," particularly "[i]fthe blade stabs something hard, like a baby." Not only was the remark needlesslyinflammatory, it also improperly cast the prosecutor as an unsworn expert witness in hisown case. Defense counsel objected, and the trial court asked the prosecutor not totestify.
Also during summation, the prosecutor improperly vouched for Gerve's credibility,describing her as a "sharp-eared woman," and speculating that her sense of hearing wasparticularly well developed from "listening to her [asthmatic] son breath[e] from adistance since four months old." Defense counsel objected, but the trial court did not ruleon the objection.
The prosecutor was also allowed, during summation, to read stricken hearsaytestimony from Gerve about a conversation she reportedly had with a friend about callingCrime Stoppers. Defense counsel, who did not have a transcript of Gerve's testimonyduring the prosecutor's summation, brought the matter to the trial court's attention at theearliest opportunity the following day, while the jury was still deliberating.
Further, in commenting on the defendant's comportment after the discovery of thevictim's body, the prosecutor tried to inflame the jury by characterizing the defendant as"cold-blooded" enough to "have stabbed a woman a[s] many times as he did." Insustaining defense counsel's objection, the trial court warned the prosecutor not toinflame the jury. Undaunted, however, the prosecutor continued, calling the defendant "avery angry person" given the amount of force used, the "tremendous amount of[overkill]." Upon defense counsel's further objection, the court directed the jurors not tospeculate. The prosecutor continued, stating that the defendant "didn't trust [the victim]with his heart" so "[h]e stabbed her in hers," and also "in the lungs," and "in the face,"and "in the hands," and "in the belly, the nine month pregnant belly" because he "wantedto make sure this baby went because the baby is the whole thing." Defense counselobjected, and the court admonished the prosecutor once again that "[i]f you keepinflaming the jury, you are going to regret it."
Nevertheless, the prosecutor again returned to this theme toward the end of hissummation, remarking that "any human being would be surprised. But not the personwho did it." Defense counsel objected again, but this time the trial court said only that itwas "his comment, his interpretation of the evidence." Soon thereafter, the prosecutorcontinued his string of inflammatory remarks by stating, "It happens, when you can't getsomebody to [get] an abortion . . . you have to take care of them the last dayyourself." The prosecutor also noted that if the dead child had been born, "he would bethree years old." When defense counsel complained that the prosecutor was inflaming thejury, the court simply asked the prosecutor to "wrap it up."
To the extent that the defendant's challenges to some of the above remarks were notpreserved for appellate review, we nevertheless reach them in the exercise of our interestof justice jurisdiction (see CPL 470.15 [6]; People v Rowley, 127 AD3d 884, 885 [2015]). Althoughsome of the above remarks, considered individually, would not require a reversal, itcannot be said that there is no significant probability that the verdict in this circumstantialcase would have been different absent the cumulative, prejudicial effect of these errors(see People v Spence, 92AD3d 905 [2012]; People v Spann, 82 AD3d at 1016).
As a new trial must be ordered, we further note that the trial court erred in permittingthe prosecutor to elicit extensive evidence of the victim's personal and family life,including how the victim's parents met in high school, the victim's childhood in SouthCarolina, her job history and career aspirations, her prior boyfriends before thedefendant, and the family's nicknames for her. The victim's father was even allowed totestify, over objection, that the baby's due date, October 25th, was also his birthday. Theabove evidence, which was admitted through the testimony of the victim's mother andfather, was not probative of any issue to be determined at trial and was prejudicial to thedefendant (see People v Harris, 98 NY2d 452, 490-491 [2002]; People vMiller, 6 NY2d 152, 157 [1959]; People v Caruso, 246 NY 437, 444 [1927];People v Torres, 45 AD3d1054, 1055 [2007]). Dillon, J.P., Leventhal, Chambers and Barros, JJ., concur.