| People v Carter |
| 2018 NY Slip Op 00711 [158 AD3d 1105] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Preston Carter, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedNovember 28, 2012. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is reversed on the facts, theindictment is dismissed, and the matter is remitted to Monroe County Court for proceedingspursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him after a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]), defendant contends, inter alia, that theverdict is against the weight of the evidence. We agree. Although the People may have provedthat defendant is probably guilty, the burden of proof in a criminal action is, of course, muchhigher than probable cause; the prosecution is required to prove a defendant's guilt beyond areasonable doubt, and the evidence in this case does not meet that high standard. For the reasonsthat follow, we have doubts whether defendant is the person who killed the victim and, in ourview, those doubts are reasonable. We therefore reverse the judgment of conviction and dismissthe indictment.
The victim was a middle-aged Caucasian man who lived in the Town of Brighton andfrequently engaged in what his friends described as "high-risk" behavior, i.e., "hooking up" withmen he met online and engaging in consensual sexual acts with them. According to the victim'sclosest friend, a woman named Michele, the victim was "addicted" to sex, sometimes meeting upwith more than one partner on the same day. Michele testified that the victim preferred his sexualpartners to be "young black males who looked thuggy or street-like, kind of a danger and edge tothem—that was his type." There was also testimony that the victim would "cruise" certainparts of the City of Rochester looking for black men with whom to meet.
On November 16, 2008, the victim checked into a hotel in Henrietta at 6:59 p.m. Accordingto Michele, the victim liked to use this hotel for sexual trysts because its security was "lax." AnAfrican-American man entered the hotel with the victim, but did not approach the front desk withhim. Instead, the man walked toward the elevator. The hotel employee working at the front deskrecognized the victim from prior visits and, during the check-in process, the victim said that therewould be two guests in the room. The employee gave the victim two keys to room 333, locatedon the third floor. The victim took the keys and walked to the elevator.
The employee who dealt with the victim left work at 11:00 p.m. and did not see him or theother man leave the hotel, and neither did the front desk employee who replaced her and workedthe overnight shift. Aside from the front entrance, there were four other ways to enter and exit thehotel, and one could come and go through those doors without passing by the front desk. Therewas a surveillance camera that covered the registration desk, but there were no other cameras atthe hotel or in the parking lot.
At 9:19 that night, the victim called his teenage son from his cell phone and said that he didnot know where he was. According to the son, the victim sounded "very confused" and was"panicking" before hanging up abruptly. The son called the victim back several times, but thevictim initially did not answer. At 9:21 the victim finally answered a call from his son and saidthat everything was fine and that he had just been joking. The victim hung up before the soncould seek clarification.
At approximately 10:00 the following morning, a hotel employee entered the victim's roomand observed blood on the walls and floor. The police were called to the scene, and the victim'sdead body was found on the floor next to the bed under a blanket. His skull had been crushed inseveral places by what the Medical Examiner believed to have been a blunt instrument of somesort. The victim also had bruises all over his body and multiple cuts on his face. There was tapethat had been wrapped around the victim's left hand, suggesting that someone had tried to restrainhim, and ligature marks around his neck, as if he had been strangled. No murder weapon wasrecovered, although the police found the hand grip of a pellet gun on the floor in the hotel room.The grip had apparently broken off the handle of the gun.
A murder investigation commenced, resulting approximately three years later in defendant'sarrest. At the time of his arrest, defendant was 28 years old and had no criminal record.
The evidence at trial established beyond a reasonable doubt that defendant was the personwho entered the hotel with the victim at 6:59 p.m., and that defendant lied to the police byrepeatedly denying that he knew the victim or had contact with him. The police found in the hotelroom a receipt from a convenience store that was given to someone who purchased an item withan Electronic Benefit Transfer Card issued to defendant by the New York State Office ofTemporary and Disability Assistance. The receipt was on the floor next to the victim's body.
In addition, phone records established that the victim had made several calls to the landlinetelephone at defendant's residence on November 16, 2008. Shortly after the last call, the victimused his home computer to reserve the hotel room. After discovering the victim's body in thehotel room, the police searched for his vehicle, which was not in the hotel parking lot. Thevehicle was found later that day parked on a city street approximately six tenths of a mile fromdefendant's residence. Inside the vehicle, the police found printed Mapquest directions to aresidence located at 23 Roxborough Road. No such address exists, but defendant resided at 203Roxborough Road, and the directions were printed moments after the victim reserved the hotelroom.
Finally, a hair found on the sink in the bathroom of the hotel room was linked to defendant.Mitochondrial DNA testing showed that the DNA of the hair matched defendant's DNA, andthat, unlike defendant, 99.91% of the population could be excluded as a source. It is thus clearthat the victim picked up defendant at his residence and drove him to the hotel, and that the twoentered the room together.
Nevertheless, under the circumstances of this case, the mere fact that defendant was in thehotel room with the victim, and most likely engaged in sexual acts with him, does not establishbeyond a reasonable doubt that defendant is the person who killed him. As the Peopleacknowledge, the Medical Examiner did not determine the time of death. Thus, as far as weknow, the victim could have been killed at any time between 9:21 p.m. on November 16, 2008,when he spoke to his son on the phone, and 10:00 the next morning, when his body was found.Moreover, the evidence at trial suggests that someone other than defendant may have been in thehotel room with the victim that night, and that the victim may have left the hotel room at sometime after he checked in with defendant.
With respect to whether there were other people in the hotel room with the victim other thandefendant, we note that DNA from two males was obtained from a plastic drinking cup in thehotel room, and testing excluded defendant as a contributor. Defendant was also excluded as thesource of a second strand of hair found on the bathroom sink, and the victim was excluded aswell. A blond strand of hair was found on the victim's abdomen and, although DNA testing couldnot be done on the hair, the victim did not have blond hair and the People's expert testified thatshe would not expect the hair to have come from an African-American. A blond strand of hairwas also found in the victim's vehicle after it was recovered by the police, and a pair of women'sunderwear was found in the bathroom of the hotel room.
There is also evidence that the victim may have left the hotel before he was murdered. Tobegin with, the phone call the victim made to his son at 9:19 p.m.—the one during whichthe victim sounded confused and said that he did not know where he was—was processedthrough an AT&T cell tower located at 350 Buell Road in the Town of Gates. The same istrue of the call received by the victim from his son two minutes later. The hotel is in the Town ofHenrietta, which is not contiguous to the Town of Gates. The AT&T representative whotestified at trial did not know which of its cell towers serviced calls made and received at thehotel. It thus cannot be said with any degree of certainty that the victim was at the hotel when hespoke with his son.
The victim's phone was also used at 10:21 p.m. to call a number in the 315 area code; the callwas not connected, meaning that the other person did not answer. No evidence was offered attrial as to whom that call was made. The People suggested at trial that defendant made that callon the victim's phone after committing the murder, but we are not so sure. The record does notreveal whether the police tracked down the intended recipient of the call to determine if he or sheknew defendant or the victim.
The evidence further showed that someone used the computer in the victim's bedroom at hishome at 10:49 that same night. The victim's bedroom was on the first floor of a condominium heshared with his son and an adult female friend, both of whom had computers in their rooms andtestified that they did not use the victim's computer that night.
It is also curious that a key to the hotel room was found in the center console of the victim'svehicle. The People's theory is that defendant, after committing the murder, drove the victim's carto within a mile of his home and then left it on the side of the street. But why would defendanttake a hotel key with him after killing the victim? One did not need a key to exit the hotel. Andwhy would defendant place the key in the center console, as if he intended to return to the hotel?It seems more likely that the victim placed the room key in the center console. We note that,although the murderer left bloody footprints on the carpet in the hotel room, and blood wassplattered on the walls, ceiling, and floor of the room, no blood was found in the victim's vehicle,not even on the brake or gas pedals.
A review of the victim's emails from the day in question reveal that he engaged incommunications with several men other than defendant and discussed with them meeting forsexual activity. It appears undisputed that the victim met up with one such man earlier in the dayat a different location. The victim exchanged multiple emails with another man who expressedinterest in meeting. The victim informed this man, whose first name was Waki, that he had ahotel room and inquired whether Waki needed a ride. Waki instructed the victim to call him todiscuss things further, and provided the victim with a number to call. That was the last emailbetween the two.
The People posit that the victim never called Waki because his cell phone records do notreflect a call to Waki's number. As the defense pointed out at trial, however, the People did notoffer into evidence the records from the victim's landline telephone at home or from thetelephone in the hotel room. The fact that the victim did not call Waki from his cell phone doesnot establish, ipso facto, that the two did not meet that night. Although the police located Wakiand questioned him about the homicide, they did not obtain a DNA sample from him. Wetherefore do not know whether Waki is a match for any of the DNA samples obtained from thehotel room and the victim's vehicle.
Nor did the police obtain a DNA sample from a man named Shaft, the victim's ex-boyfriend.According to Michele, the victim's closest friend, Shaft had been abusive and unfaithful to thevictim, and that is why the relationship ended. Several witnesses testified at trial that the victimplanned to reconnect with Shaft on the weekend of his murder, and two of the victim's coworkerstestified that the victim said a day or two before his death that he had plans that weekend to meeta new person and an old boyfriend. When talking to one coworker about the old boyfriend, thevictim "seemed really nervous" and his lips were quivering. The coworker had never seen thevictim act like that, and said that perhaps it was not a good idea for him to see the ex-boyfriend.Although obviously nervous, the victim did not change his mind, saying that "everything isdangerous."
Shaft worked at a restaurant in Henrietta, less than a mile from the hotel in which the victimwas murdered. When questioned by the police, Shaft said that he was at his mother's house onthe night in question, but the police did not check with Shaft's mother to verify his alibi, nor didthey obtain a DNA sample from him.
We note that Shaft's sister, the woman who resided with the victim and his son, called thehotel on the morning that the victim's body was found and asked the person at the front desk tocheck the victim's room to make sure he was okay. She knew that the victim frequently used thathotel to meet people, and she was concerned because he rarely, if ever, stayed overnight at thehotel. The front desk employee testified at trial that Shaft's sister identified herself as the victim'swife and said that she had called the victim's room directly but got no answer, and that she wasconcerned because the victim had a heart condition. If Shaft's sister did, in fact, call the victim'sroom directly, the obvious question is how she knew which room to call.
The People assert on appeal that defendant could not be excluded as a contributor to theDNA collected from the victim's fingernail clippings, as if that were evidence of his guilt. Thedissent relies on this evidence as well. The People's expert testified, however, that the testsconducted of the DNA from the victim's fingernails were "inconclusive," i.e., defendant couldnot be included or excluded as a contributor. In other words, the fingernail DNA evidence wasneither inculpatory nor exculpatory, and thus was of little, if any, probative value. The trialprosecutor, to his credit, did not even mention the fingernail DNA evidence during hissummation. Although DNA tests were conducted on more than 50 items found in the hotel roomand in the victim's vehicle, the only item that was linked to defendant was a hair found on thebathroom sink, the same sink on which the police found another hair that did not belong to eitherdefendant or the victim.
The People at trial relied in part on the bloody footprints that were left on the carpet of thehotel room. The footprint impressions looked similar to impressions made by a pair of Nikeboots found by the police in the home of defendant's girlfriend, with whom he lived at the timewith their infant daughter. The People's expert acknowledged, however, that there weredifferences in the arch area of the bloody footprints and the impression made by the Nike boots,and that she could not make a "definitive determination" whether the Nike boots had left thebloody footprints. The expert also acknowledged that the FBI conducted forensic tests on theboots looking for traces of blood and found none, and that blood could remain on boots fordecades.
The People's case thus rested on three pillars of circumstantial evidence: (1) the fact thatdefendant entered the hotel with the victim at approximately 7:00 p.m., some 15 hours before hisdead body was found in the hotel room; (2) the fact that defendant repeatedly lied to the policewhen he said that he did not know the victim and had never met him; and (3) the fact that thevictim's vehicle was found abandoned on a city street approximately six tenths of a mile fromdefendant's residence.
As noted above, defendant's presence in the room, although incriminating, is by no meansconclusive considering that other people may have been in the room with the victim and that theMedical Examiner could not determine the time of death. As for defendant's lies to the police, itappears that he may not have been living as an openly gay man—he had a girlfriend andchildren from different women—and he may have said that he did not know the victim soas not to reveal his sexual orientation. Finally, although the presence of the vehicle so close todefendant's residence is suspicious, the victim was known to drive around the city looking forsexual partners, and the record does not disclose where Shaft or Waki resided.
The People did not suggest at trial a motive for the brutal killing, which evidently wascommitted with great malice, and we cannot conceive of a possible motive from our review ofthe record. "Although motive is not an element of the crime, it nonetheless cannot be ignored"(People v Richardson, 55 AD3d934, 937 [3d Dept 2008], lv dismissed 11 NY3d 857 [2008]). Indeed, where, as here,the People's case is based entirely on circumstantial evidence, " 'motive often becomesnot only material but controlling' " (People v Moore, 42 NY2d 421, 428 [1977],cert denied 434 US 987 [1977], quoting People v Fitzgerald, 156 NY 253, 258[1898]; see People v Mixon, 203 AD2d 909, 910 [4th Dept 1994], lv denied 84NY2d 830 [1994], denied upon reconsideration 84 NY2d 909 [1994]).
Concerned "about the incidence of wrongful convictions and the prevalence with which theyhave been discovered in recent years," the Court of Appeals has stressed the importance of therole of the Appellate Division in serving, "in effect, as a second jury," to "affirmatively reviewthe record; independently assess all of the proof; substitute its own credibility determinations forthose made by the jury in an appropriate case; determine whether the verdict was factuallycorrect; and acquit a defendant if the court is not convinced that the jury was justified infinding that guilt was proven beyond a reasonable doubt" (People v Delamota, 18 NY3d 107, 116-117 [2011] [emphasisadded]; see People v Oberlander, 94AD3d 1459, 1459 [4th Dept 2012]).
We agree with the dissent that an appellate court must give great deference to a jury'scredibility determinations inasmuch as the jury is in a far superior position to assess the veracityof witnesses (see People v Bleakley, 69 NY2d 490, 495 [1987]). Here, however, the jurywas not called upon to make credibility determinations, as almost all of the relevant factsadduced at trial were undisputed. Instead, the jury was asked to make inferences based on theevidence, a task that we are no less qualified to undertake.
Quoting People v Cahill (2NY3d 14, 58 [2003]), the dissent also asserts that our authority to review the weight of theevidence in a criminal case is not an " 'open invitation' " to substitute ourjudgment for that of the jury. "Of course that is true," the Cahill Court went on to say in aportion of the decision not quoted by the dissent (id.). "But on the other hand, weight ofthe evidence review does not connote an invitation to abdicate our responsibility" toindependently weigh the evidence (id.) and "to serve, in effect, as a second jury"(Delamota, 18 NY3d at 117). The mere fact that the jury rendered a guilty verdict is onlythe beginning of our analysis.
In sum, based on our independent review of the evidence, and viewing the evidence in lightof the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is against the weight of the evidence and cannot stand (see generallyBleakley, 69 NY2d at 495). Although the police cannot be faulted for arresting defendant,nor the People for prosecuting him, the evidence at trial simply failed to prove defendant's guiltbeyond a reasonable doubt. There are too many unanswered questions for us to be comfortablethat the right person is serving a life sentence for the victim's murder.
All concur except Carni, J.P., and Curran, J., who dissent and vote to affirm in the followingmemorandum.
Carni, J.P., and Curran, J. (dissenting). We agree with the implicit determination of ourcolleagues that there is sufficient evidence to support the jury's verdict of murder in the seconddegree (Penal Law § 125.25 [1]), but we respectfully disagree with their conclusionthat the verdict is against the weight of the evidence. We therefore would affirm the judgment ofconviction.
The standard for weight of evidence review is well settled and set out by the Court ofAppeals in People v Bleakley (69 NY2d 490, 495 [1987]): "If based on all the credibleevidence a different finding would not have been unreasonable, then the appellate court must,like the trier of fact below, 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' . . .If it appears that the trier of fact has failed to give the evidence the weight it should be accorded,then the appellate court may set aside the verdict."
This, of course, is not an "open invitation" for an appellate court to substitute its judgmentfor that of the jury (People v Cahill,2 NY3d 14, 58 [2003] [internal quotation marks omitted]). Rather, an appellate court mustgive "[g]reat deference" to the jury's resolution of factual issues (Bleakley, 69 NY2d at495). It is the "fact-finder[ ]" that has the "opportunity to view the witnesses, hear the testimonyand observe demeanor" (id.), and the Court of Appeals has emphasized that "those whosee and hear the witnesses can assess their credibility and reliability in a manner that is farsuperior to that of reviewing judges who must rely on the printed record" (People v Lane, 7 NY3d 888, 890[2006]).
Bearing those principles in mind, we conclude that the jury was justified in finding defendantguilty of murder in the second degree beyond a reasonable doubt. The majority recognizes thatthe People presented overwhelming evidence that defendant was in the hotel room the nightbefore the victim's body was discovered. While that evidence does not necessarily establish thatdefendant killed the victim, there is ample circumstantial evidence supporting that conclusionreached by the jury. Specifically, the evidence established that the victim's car was seen outsidethe Chili Mini Mart at 6:30 p.m. The victim checked into the hotel at 6:59 p.m. with a blackmale, whom, as the majority concedes, the evidence established beyond a reasonable doubt wasdefendant. While the victim spoke with his son by telephone a couple of times at approximately9:20 p.m., no one was able to contact the victim after those telephone calls. A receipt from theChili Mini Mart with defendant's welfare benefit number was found on the floor near the victim'sfeet, and it had the victim's blood on it. The victim's car was found the following day only sixtenths of a mile from defendant's residence, with a keycard for the hotel where the victim wasfound in the car's center console. Using a known sample of defendant's DNA as a basis forcomparison, defendant could not be excluded as the source of DNA from various pieces ofevidence, including fingernail scrapings on the victim's right hand, a crease of tape used to bindthe victim's hands, and a swab taken from the steering wheel of the victim's car. Further, the rightboot from a pair of defendant's boots looked similar in shape and pattern to the bloody footprintsfound at the scene.
The majority goes to great pains to identify some evidence that possibly suggests thatsomeone other than defendant may have been in the hotel room with the victim that night, andthat the victim may have left the hotel room at some time after he checked in with defendant. Inour view, however, that amounts to no more than impermissible speculation and, notably, therewas no real evidence of any meeting between the victim and anyone else that night. In light of theabove evidence establishing defendant's guilt, we cannot conclude that the verdict is against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Present—Carni,J.P., Lindley, NeMoyer, Curran and Troutman, JJ.