People v. HarrisPeople v. Harris
Lead Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered March 17, 2005, convicting him of bribing a witness (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant stands convicted of three counts of bribing a witness for conduct aimed at convincing three teenage girls to recant their statements identifying his brother, Wesley Sykes, as the man who shot and killed Dennis Brown in a park in Brooklyn. The primary issue raised on appeal is whether the trial court’s evidentiary rulings, which permitted the prosecution to offer evidence that a fourth eyewitness to the Brown shooting, Bobby Gibson, was murdered the weekend before he was scheduled to testify against Sykes, deprived the defendant of a fair trial. We conclude that the defendant was not deprived of a fair trial and, accordingly, affirm.
The evidence presented at the defendant’s trial reveals that on the evening of September 4, 2001, Sykes rode his bicycle into a park in the Bedford-Stuyvesant section of Brooklyn, exchanged a few words with Brown, and fired several shots at him. On September 27, 2001, Brown died of the injuries he suffered in the shooting. A number of Brown’s friends were in the park and witnessed the shooting, including three teenage girls, Shaquanna Edmonds, Latisha Smith, and Naia Hardison, and one young man, Bobby Gibson. Sykes was arrested for Brown’s murder on October 23, 2001, and that night five eyewitnesses, including Gibson and two of the girls, identified him from a
In May and June of 2002, as the date scheduled for his brother’s murder trial approached, the defendant made contact with each of the teenage girls who had witnessed the Brown shooting, and began to shower them with gifts and attention. Prior to meeting the defendant, each of the girls heard rumors that he was a dangerous man, and that he was looking for them. Describing these events, Shaquanna Edmonds testified that before she met the defendant for the first time in June 2002, a friend told her that the defendant wanted to talk to her, and that he was “mad about his brother.” The friend urged Edmonds to talk to the defendant because the defendant was a “very dangerous person,” and the friend did not want to see anything happen to Edmonds. However, once Edmonds actually met the defendant, he was “very nice,” took her out to restaurants to eat, and gave her $100 on two different occasions. On one occasion, Edmonds accompanied the defendant to a hotel, where he made “romantic overtures.”
Latisha Smith similarly testified that in the months after the defendant’s brother was arrested, two different friends told her that the defendant wanted to talk to her, and one of these friends warned her that the defendant was “capable of hurting people.” She met the defendant in late May 2002, and for a period of about a month, he called her frequently, took her out and bought food for her, and gave her money on a couple of occasions. During this period, Smith became so close to the defendant that they engaged in sexual relations.
The third girl, Naia Hardison, also testified that she was nervous when the defendant initially approached her and asked to talk to her, because she had heard a lot of rumors about him on the street. She had heard “that it’s either lie or die. He supposed to do this to us if we don’t testify.” Despite the rumors, the defendant was nice to her, showed her love like a big brother, took her out for meals, and gave her $500 or $600.
After establishing a relationship with the three girls, the defendant asked each one to speak to Michael Warren, the attorney defending his brother in the Brown murder case, and recant their identifications of Sykes as the shooter. On separate occasions in June 2002, the defendant brought each girl to Warren’s office to make recorded statements in which each recanted her prior identification of Sykes as the shooter, and stated instead that Corey McCollough, who had been with Sykes in the park that night, shot Brown over a gang-related dispute. The
A jury was selected in the Sykes trial on Thursday, June 27, 2002, and the presentation of evidence was scheduled to commence on Monday, July 1, 2002. On Thursday, June 27, Assistant District Attorney Steven Murphy met with Bobby Gibson, one of the eyewitnesses scheduled to testify against Sykes. Although Murphy had also arranged to meet with Edmonds and Smith, they did not appear, and Smith expressed reluctance to meet with him and come to court.
In the early morning hours of Saturday, June 29, 2002, Gibson was shot and killed. A man named Travis Ragsdale subsequently confessed to the murder, claiming that he was drunk when he got into an argument with Gibson at a party, resulting in the shooting. Although Ragsdale was charged with murder in the first degree on a witness-elimination theory, he was ultimately acquitted of that charge, and convicted of murder in the second degree.
Meanwhile, Edmonds was awakened from her sleep by the sound of gunshots on the morning of Saturday, June 29, 2002, and looked out her window to see Gibson’s body lying on the ground. She recalled thinking to herself, “What’s next? I guess I’m next.” Smith was also scared when she heard that Gibson had been killed, because at that time nobody knew who had killed him. Detective Warren Bond located all three girls that evening, and went to see them to ensure that they were all right. Although the girls “seemed very edgy,” they told Bond that they were okay. When asked why she did not reveal her contact with the defendant to the police at that point, Edmonds replied that she was worried about her “life,” explaining that she “didn’t know what was next,” and what the consequences of the shooting would be.
On the following evening, Sunday, June 30, 2002, Detective Bond received a phone call from Smith, who said that she had something to tell him. When Bond went to Smith’s location to meet with her, he found Edmonds and Hardison there as well. All three girls were very nervous and edgy. After much discussion, Smith told Detective Bond that she had been approached by an individual who told her that the girls “can either take money not to testify against Wesley Sykes or they can take a bullet.” Smith then disclosed that the girls had taken money from the defendant not to testify against Sykes. The three girls were transported to the police precinct, where they gave recorded statements to Assistant District Attorney Murphy. Murphy asked each of the girls whether they wished to be
Whether and to what extent to admit evidence that Gibson had been murdered just before he was to testify against Sykes was the subject of extensive discussion between the court, the prosecutor, and defense counsel during the course of the trial. The issue was first raised by the court prior to jury selection, because the trial judge was concerned that prospective jurors might have seen press coverage of Gibson’s murder, linking it to his role as a witness in the Sykes trial and implicating the defendant. Defense counsel argued that no reference at all should be made to the Gibson murder at trial because it was “wholly immaterial, separate and entirely unrelated” to the bribery and witness tampering charges against the defendant. The prosecutor argued that testimony regarding Gibson’s death was relevant to explain why the three teenage girls came forward to the District Attorney, and that absent evidence of Gibson’s death, the jury would be left to wonder why these witnesses “turned around” on the day of the Sykes trial. The prosecutor also emphasized that defense counsel had “explored” the files related to the relocation of the girls, “which are ugly” and which showed that the girls were “difficult” witnesses who had misbehaved in the hotels where they had been placed. He urged that it would be “obscene” to allow defense counsel to impeach the credibility of the girls by cross-examining them about the money given to them by the District Attorney’s office for housing and living expenses during their relocation “without knowing the dangers involved and why all these things took place.” After hearing arguments by counsel, the court indicated that it would formulate an instruction that would inform the jury that another person had been tried and found guilty of killing Gibson, and that there was no evidence that the defendant was responsible for Gibson’s death. Thereafter, in its preliminary instructions to prospective jurors, the court informed them that there had been extensive press coverage of some of the issues in the case, including the recent trial of a man named Travis
During a subsequent colloquy on this issue, the prosecutor indicated that he intended to elicit from the three girls that Gibson’s death was relevant to their states of mind because each had recanted her original statement identifying Sykes, and then adhered to her original statement. The court then ruled that testimony of the murder of another witness to the Brown shooting was “clearly appropriate and necessary given the nature of the case and the history of the witnesses]’ testimony.”
Defense counsel returned to this issue after jury selection, reiterating her position that the Gibson murder was unrelated to this case, and further arguing that because the homicide occurred after the events alleged in this case, it could not have gone to the state of mind of the complainants. She requested that if the court allowed evidence of the Gibson murder to be presented on the prosecution case, she be allowed to have Ragsdale’s videotaped confession played to the jury. The court adhered to its ruling that the prosecutor could make reference to the Gibson murder and its impact on the girls’ decision to change their minds about exonerating Sykes, but instructed him not to “belabor it” or insinuate that the defendant was connected to it.
In accordance with the court’s ruling, in his opening statement, the prosecutor referred to the Gibson murder and the impact it had on the girls. However, he cautioned the jury that it was important to remember that the defendant was on trial for bribing witnesses and witness tampering, that they would hear no evidence that the defendant was anywhere near the location of the Gibson shooting, and that someone else had been arrested for that shooting.
During the course of direct examination, the prosecutor elicited testimony from each of the three girls regarding the manner in which they learned of Gibson’s death, and the impact of his death upon them. In addition, the prosecutor was permitted to elicit testimony from Smith that at some point in June 2002, she heard the defendant state that he wanted to talk to two other witnesses to the Brown murder, Gibson and the victim’s brother, Corey Brown. The court allowed the prosecutor to elicit this testimony from Smith over defense counsel’s objection, concluding that defense counsel had opened the door by making an issue in her opening statement about the fact that although 8 to 10 people in the park witnessed the crime, the defendant had allegedly approached only the three teenage girls.
On summation, defense counsel argued that the case against the defendant was a “witch hunt,” triggered by the assumption that Gibson was killed because he was a witness in the Sykes case. She submitted that this assumption “couldn’t be further from the truth” in light of Ragsdale’s confession. Defense counsel also challenged the girls’ credibility by stressing that they were receiving money from the District Attorney’s office each week during their relocation, and commenting that “[tjhese girls, they had assistance, and they treated the District Attorney’s office like their personal bank.” She added that the prosecution’s attempt to suggest the existence of a link between Gibson’s killing and his role as a prospective witness in the Sykes trial had been “[wjholly created” by the District Attorney’s office for the purpose of justifying the relocation of the girls. She also argued that the evidence at the Sykes trial pointed to Corey McCollough as the shooter, and asserted that the statements the girls made to Warren were indeed true, and they thereafter changed their stories only because the District Attorney threatened to arrest each one.
During his summation, the prosecutor also discussed the Gibson murder, commenting that, “We don’t have evidence that [the defendant is] behind the killing of Bobby Gibson. You don’t have evidence that even his brother Sykes did it. Might have. There’s a lot of reasons to speculate about it. But, if you don’t have evidence, you don’t arrest the person for the crime. So much for the witch hunt.” The prosecutor additionally focused on the credibility of Ragsdale’s confession, arguing that it left unanswered as many questions as it answered, including the identity of the person who allegedly passed Ragsdale the gun he used to shoot Gibson, and why both Gibson and another wit
In its charge, the court instructed the jury that, as it had “repeatedly from the very beginning of this trial” told them, the defendant had “not been charged with causing the death of the witness Bobby Gibson.” The court also noted that the People had introduced evidence of Gibson’s death “for the purpose of explaining the state of mind of the three of the complainants . . . and to provide the background for their participation in the witness protection program of the District Attorney’s office.”
At the conclusion of the defendant’s trial, the jury returned a verdict acquitting him of three counts of witness tampering in the third degree and convicting him of three counts of bribing a witness. The defendant now appeals.
Initially, we reject the defendant’s contention that the verdict convicting him of three counts of bribing a witness was not supported by legally sufficient evidence. Pursuant to Penal Law § 215.00, a person is guilty of bribing a witness when he or she “confers, or offers or agrees to confer, any benefit upon a witness or a person about to be called as a witness in any action or proceeding upon an agreement or understanding that . . . the testimony of such witness will thereby be influenced.” Viewing the evidence in the light most favorable to the prosecution (see People v Contes,
Evidence of uncharged crimes is generally excluded under the Molineux rule (People v Molineux,
However, “[t]he Molineux rule was created to address a particular prejudice inherent to a particular type of proof: evidence of a defendant’s prior crimes and bad acts” (People v Cortez,
Even if the evidence of Gibson’s death could arguably be viewed as suggesting that the defendant committed an uncharged crime, it was properly admitted to explain why the girls, having recanted their original statements identifying Sykes as Dennis Brown’s killer, admitted to the police that they had made false recantations, and adhered to their original statements. Indeed, two of the girls testified that Gibson’s murder, two days before the presentation of evidence in the Sykes trial was to begin, frightened them. The impact of Gibson’s murder on the state of mind of these witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls’ conduct in coming forward to disavow the recorded statements they had made to Warren which exonerated Sykes and implicated Corey McCollough in the Brown murder (see People v Tosca,
Moreover, in our view, it cannot be fairly said on this record that there was no proof establishing that Gibson’s murder played a role in the girls’ decision to retract their recantations. Both Edmonds and Smith acknowledged that the Gibson murder frightened them, and on the day after the shooting, Smith reached out to Detective Bond, who responded by going to meet with her. It was at that meeting with Bond that Smith disclosed that an individual had approached her and told her that the girls “can either take money not to testify against Wesley Sykes or they can take a bullet,” and thereafter disclosed their dealings with the defendant. It can reasonably be inferred from this evidence that the girls’ decision to come forward was motivated, at least in large part, by fear engendered by Gibson’s murder on the eve of his scheduled trial testimony in the Sykes case.
The evidence that Gibson was murdered shortly before he was to testify in the Sykes trial was also necessary to explain why the girls were placed in the District Attorney’s witness protection program. Although the defendant maintains that evidence of the girls’ participation in the witness protection program was immaterial because his trial counsel did not intend to make it an issue in the case, he did not object to the admission of this evidence at trial. Moreover, the record does not support the defendant’s assertion that his attorney did not intend to make the girls’ participation in the witness protection program an issue in this case. When the trial court first raised the issue of the Gibson murder, the prosecutor noted that defense counsel had examined the relocation files showing that the girls were difficult witnesses who had misbehaved in the hotels where they had been placed, and that “it would be obscene for the jury to be left with the impression that—without knowing the dangers involved and why all these things took place, just to hear about efforts we are making to give witnesses money.” During a lengthy discussion of this issue, defense counsel herself never represented to the trial court that she would not use the information contained in the relocation files
To clarify, we do not suggest, as the dissent indicates, that defense counsel “opened the door” to the admission of evidence of the girls’ participation in the witness protection program by examining the relocation files, and failing to represent that she would not cross-examine the girls on this subject. The dispute in this case involved the admission of evidence of the Gibson murder, not of the girls’ participation in the witness protection program, and it is clear from the record that the admission of this evidence was a key part of the defense strategy.
More importantly, as our dissenting colleague recognizes, it has been held that there is no compelling reason why testimony “directly bearing on the motive to testify of a critical witness in a criminal trial, whose motive is important to an evaluation of her credibility . . . may not be considered as serving an appropriate probative purpose” for the admission of uncharged crime evidence (People v Beckles,
While our dissenting colleague also expresses concern that the admission of evidence of the Gibson murder on the People’s direct case caused the defendant to be subjected to a “trial within a trial” to determine whether he was complicit in the homicide, the defendant himself has not advanced this argument. In any event, we are satisfied that the defendant was not improperly subjected to a trial within a trial to determine his involvement in the Gibson murder. As noted, the jury was instructed that the defendant was not charged in the Gibson murder and instructed as to the limited purposes for which testimony of the murder was to be considered. Moreover, the prosecutor did not elicit any evidence of the defendant’s involvement in the Gibson murder, and informed the jury in his opening that they would hear no such evidence. Although the prosecutor offered a portion of Gibson’s autopsy report as rebuttal evidence to challenge the credibility of Ragsdale’s account of the shooting, defense counsel was clearly warned by the court that she would open the door to such rebuttal if she sought to admit Ragsdale’s videotaped confession into evidence. While the rebuttal evidence could be viewed as casting doubt on Ragsdale’s account of how and why the shooting occurred, it was not tantamount to an attempt to prove the defendant’s involvement in an uncharged crime.
It is also important to keep in mind that the subject of the Gibson murder, and the admissibility of evidence of its occurrence, were first raised by the trial court itself out of concern
Further, the trial court properly permitted the prosecutor to elicit testimony that Smith heard the defendant state that he wanted to talk to two other witnesses to the Brown murder, Gibson and the victim’s brother, Corey Brown. Defense counsel opened the door to this testimony by emphasizing during her opening statement that the girls were not the only witnesses to the Brown murder, and that in fact 8 to 10 people had witnessed the shooting, thus suggesting that there would be no reason for the defendant to single out just three of the witnesses against his brother (see People v Mateo,
The defendant’s contention that he was deprived of a fair trial by certain comments the prosecutor made on summation relating to the Gibson murder is largely unpreserved for appellate review, since he failed to object to most of the challenged statements (see CPL 470.05 [2]; People v Morency,
We also find no merit to the defendant’s contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v New Jersey (
The defendant’s claim that the court improperly relied upon an unproven allegation of misconduct in imposing sentence is unpreserved for appellate review (see People v Walters,
The court providently exercised its discretion in sentencing the defendant as a persistent felony offender (see Penal Law § 70.10 [2]). The court’s determination that the nature of the defendant’s criminal conduct, his history, and his character warranted extended incarceration and lifetime supervision is supported by the record (see People v Dixon,
The defendant’s remaining contentions, raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.
Dissenting Opinion
dissents, and votes to reverse the judgment and order a new trial on the counts of the indictment charging the defendant with bribing a witness: I respectfully dissent.
The Supreme Court’s decision to permit the People to introduce evidence of an uncharged crime during their case-in-chief had a far-reaching impact on the course and character of the defendant’s entire trial. The court’s evidentiary rulings permitted the defendant to be cast as a man who had been involved in a heinous witness-elimination murder and the specter of that uncharged crime overshadowed the charges for which the defendant was on trial. The focus of the trial was so completely shifted to the uncharged murder that the case unraveled into a trial within a trial at which both sides presented the jury with evidence to establish questions of fact relating to the defendant’s involvement in the uncharged crime. The probative value of such evidence, inferential at best, was confined to collateral matters which bore such a slight and tenuous connection to the relevant issues of this case that the prosecutor struggled to articulate its relevance without resorting to empty legalism and metaphor. The prejudice suffered by the defendant as a result of this inflammatory evidence of witness-elimination was severe and unmistakable, yet the prospect of prejudice was wholly ignored by the trial court when it decided to expose the jury to evidence of murder. For these reasons and the ones that follow, I conclude that the defendant was deprived of a fair trial
The defendant was charged with three counts of tampering with a witness in the third degree (see Penal Law § 215.11) and three counts of bribing a witness (see Penal Law § 215.00). At trial, the People called three young women, all between the ages of 20 and 21 years old (hereinafter collectively the complainants), who each testified that they were present when an individual shot another individual in a park on September 4, 2001. The complainants testified that after being contacted by law enforcement personnel, they eventually identified the defendant’s brother as the shooter and made audiotaped statements in the presence of detectives and an assistant district attorney to that effect.
The complainants stated that sometime in May or June 2002, they began to hear rumors that the defendant was a dangerous person and that he was looking for them. They testified that they heard that the defendant was “mad about his brother” and that he would make sure that they “either lie or die.” The complainants testified that eventually they were each contacted by the defendant, but that he treated them well, lavishing them with gifts and affection. Portions of the complainants’ testimony indicated that the defendant wanted them to recant their identification of his brother as the shooter. In June 2002, the complainants each separately traveled with the defendant to the office of his brother’s attorney, where they made audiotaped recordings in which they recanted their identification of the defendant’s brother and instead indicated, consistent with the defendant’s view, that another individual was responsible for the shooting. The complainants testified that the defendant was present when they recanted their stories and that he gave each of them $500 shortly after they visited the lawyer’s office. The complainants each testified that the statements they gave at the lawyer’s office were not true.
Prior to the beginning of the trial, defense counsel had sought to preclude the prosecution from introducing evidence of an uncharged crime: the murder of a man named Bobby Gibson. The prosecutor opposed defense counsel’s application, arguing that it was “impossible and ludicrous” to separate the two cases, and that precluding reference to the Gibson murder would be “obscene.” The Supreme Court initially concluded that the fact that Gibson was murdered was not necessarily connected to this case. However, the prosecutor argued that this ruling was “outrageous,” and referenced a prior trial in which the same defense attorney allegedly used a favorable evidentiary ruling to deceive
Based on this pretrial ruling, the People were permitted to elicit evidence, in their case-in-chief, that in June 2002—two days before the defendant’s brother was scheduled to be tried for the shooting—an individual named Bobby Gibson was shot and killed. Gibson was identified as a potential witness in the case against the defendant’s brother, and although the prosecutor repeatedly disclaimed any intention of linking the defendant to Gibson’s murder, he nevertheless elicited evidence from one of the complainants that the defendant had told someone that he wanted to speak with Gibson prior to Gibson’s death. After learning that Gibson had been shot and killed, one of the complainants testified that she thought that she was “next” and she contacted the two other complainants who stated that they did not fear the defendant and had no reason to go to the police.
None of the complainants initiated contact with the police after Gibson was killed. When police contacted the complainants after Gibson’s death, they were told that the complainants had no problems, and the complainants did not request assistance or disclose their interactions with the defendant. However, the police later learned that the complainants had given new statements to the attorney representing the defendant’s brother after receiving a telephone call from one of the complainants. The complainants were then directed to report to the District Attorney’s office, where they were informed that they could be arrested for changing their original statements. Thereafter, the complainants gave new statements consistent with their original statements, and they ultimately testified against the defendant’s brother at his subsequent trial. The People were also permitted to elicit additional testimony on their direct case to establish that in the wake of Gibson’s death, the complainants were placed in a witness protection program where they and their families were provided with housing and other public assistance.
The trial then degenerated into a trial within a trial. In response to the People’s evidence showing that Gibson was killed two days before the trial of the defendant’s brother and shortly after the defendant himself was heard saying he wanted to talk to him, the defendant was permitted to play a videotaped state
The People then argued that since the videotaped statement was admitted to show that Ragsdale was responsible for the shooting of Gibson and that the shooting was not a witness-elimination murder, they should be permitted to submit rebuttal evidence to show that the defendant was “responsible” for the shooting of Gibson and that Ragsdale’s statement did not preclude the defendant’s “involvement.” The Supreme Court ruled that the videotaped statement “opened the door” to rebuttal evidence and that the People would be permitted to challenge Ragsdale’s credibility and to suggest that the shooting of Gibson was part of a larger crime. On their rebuttal case, the People submitted, inter alia, a report prepared in connection with Gibson’s autopsy which showed that Gibson’s death had been caused by a bullet that entered his lower back, traveled through his abdomen, and perforated his spleen, stomach, liver, and heart.
The jury returned a verdict finding the defendant guilty of the three counts of bribing a witness. The defendant was acquitted of the three counts of tampering with a witness in the third degree. The defendant was subsequently sentenced to three concurrent terms of imprisonment of 15 years to life.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,
Nevertheless, the defendant is entitled to a new trial. “It is a general rule that it is error to receive evidence as proof of the offense charged that an accused has committed a criminal offense other than that charged in the indictment” (People v Thompson,
However, “[t]he rule does not prohibit the admission of evidence of other . . . acts . . . which reveal or suggest the defendant’s commission of some other crime—when these acts have substantial probative value to prove the crime charged” (Jerome Prince, Richardson on Evidence § 4-501 [Farrell 11th ed, 2008 Supp]; see People v Ventimiglia,
“Even when admissible for such purposes, however, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant” (People v Lewis,
In sum, the determination of whether evidence of prior bad acts or uncharged crimes may be admitted in a particular case requires a two-part inquiry: “first, the proponent of the evidence must identify some material issue, other than the defendant’s criminal propensity, to which the evidence is directly relevant; once the requisite showing is made, the trial court must weigh the evidence’s probative value against its potential for undue prejudice to the defendant” (People v Cass,
“Whether evidence of prior crimes may be admitted under the Molineux rule is a question of law, not discretion” (People v Alvino,
Despite the intimations of the prosecution to the contrary, the evidence was inadequate to show that the defendant was in any way involved in Gibson’s murder. Thus, to the extent that evidence of Gibson’s murder was presented to the jury in an attempt to establish that the defendant attempted to instill fear in the complainants, it lacked any probative value since, aside from the prosecutor’s improper remarks on summation, the defendant was not adequately linked to that act (see People v Cook,
While this lack of a connection to the defendant affected the relevancy and probative value of the disputed evidence of Gibson’s murder, it did not, as the People contend, render such evidence benign. To the contrary, in similar contexts, both this Court and the Court of Appeals have recognized the undue prejudice suffered by defendants through the admission of “highly inflammatory” evidence that is not directly attributed to the defendants, but is nevertheless admitted in the case against them (People v Smith, 52 NY2d 802, 803-804 [1980]; see People v Martinez,
Moreover, any inference that Gibson was killed in an attempt by the defendant to indirectly influence the complainants’ conduct would have been speculative at best (see generally People v Adames, 52 AD3d 617, 619 [2008]). Indeed, Gibson was shot after the complainants had already changed their stories
Nor was the disputed evidence rendered admissible on the ground that it completed the narrative or furnished background information. The talismanic invocation of these phrases as grounds for the admission of uncharged crimes has prompted the Court of Appeals to note that its use of these phrases in several decisions “should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information” (People v Resek,
To be sure, “[i]n appropriate instances, evidence of uncharged crimes may be allowable as background or narrative because juries might ‘wander helpless’ trying to sort out ambiguous but material facts” (id., quoting People v Green,
It is apparent that evidence of Gibson’s murder was not relevant to directly establish any of the elements of the charged crimes, nor was it warranted to explain evidence that was probative of the elements of the charged crimes. The prosecution nevertheless contended that the evidence of Gibson’s murder was probative of the state of mind of each of the complainants to
However, evidence of the fact that the complainants entered into a witness protection program was itself improperly admitted. There was no reason why the jury needed to be informed, on the People’s direct case, that the complainants had sought refuge in a witness protection program. By placing before the jury evidence that law enforcement deemed it necessary to take the unusual step of affording the complainants near-constant protection, the jury was improperly invited to speculate as to the source of this threat to their safety (see People v Spence,
The People nevertheless contend that defense counsel “opened the door” to the admission of the witness-protection evidence by (1) examining the complainants’ relocation files in preparation for the trial and (2) failing to represent to the trial court that she would not make use of the information contained in those files. These arguments, cited by my colleagues in the majority, would represent a significant expansion of existing law by recognizing that a defense attorney may open the door to otherwise inadmissible evidence before the trial even begins simply by investigating or familiarizing himself or herself with the facts surrounding the case or by exploring possible avenues of impeachment of likely witnesses. This position, if accepted, would also appear to place a burden on a defense attorney to affirmatively certify to a court that he or she will not pursue certain trial strategies before the trial has begun, thereby forcing a defendant to choose among available trial tactics before the People even begin to put on their case. There is no need for any such expansion of the already nebulous “opening the door” jurisprudence, and there has been no citation to any legal authority to support these positions.
Furthermore, since the prosecution did not adequately link the defendant to Gibson’s murder, it could not have served to show that the defendant intended to instill fear in the complainants (see People v Smith,
It has been recognized, primarily in other contexts, that evidence of uncharged conduct may be probative where it is “directly bearing on the motive to testify of a critical witness in a criminal trial, whose motive is important to an evaluation of her credibility” (People v Beckles,
Even if the evidence of Gibson’s murder was inferentially probative of the complainants’ motive to testify, it was nevertheless error to admit it. To begin, the evidence was improperly admitted during the People’s case-in-chief (cf. People v Edwards,
It is for this reason that the People’s repeated contention that defense counsel opened the door to such evidence must fail. Defense counsel’s reference in her opening statement to other witnesses to the Sykes murder and her cross-examination of the complainants as to matters concerning the relocation program occurred after the trial court, reversing its earlier ruling, permitted the People to introduce evidence of Gibson’s murder and the complainants’ relocation on their direct case. The People, in effect, seek to justify the admission of the evidence “on the ground that the reception of the evidence was in some way validated after the event” (People v Liller,
Even assuming that the evidence of Gibson’s murder was inferentially probative of the complainants’ credibility, this finding by the trial court would only represent the first step in the two-step determination. As previously noted, once the proponent of the evidence identifies “some material issue ... to which the evidence is directly relevant . . . the trial court must weigh the evidence’s probative value against its potential for undue prejudice to the defendant” (People v Cass,
Here, the Supreme Court failed to either evaluate the potential for undue prejudice to the defendant or weigh it against the probative value of the evidence to the charged crimes. Indeed, “the record shows that the court ended its inquiry at relevance without addressing those other important considerations” (People v Cortez,
In the event that the discretionary balancing had been performed by the trial court, or is performed post facto by this Court, any probative value resulting from an inference that could be made regarding the complainants’ general credibility was vastly outweighed by the potential for undue prejudice to the defendant. In this regard, it has been recognized that “[t]here is an obvious, and unusual, potential for unfairness in allowing a witness whose credibility is under challenge to buttress his or her own credibility by attributing to the defendant shocking criminal behavior on the claim that such behavior influenced the witness to testify” (People v Beckles,
The People’s contention that the defendant was not prejudiced by the evidence of Gibson’s murder since he was not directly linked to that crime is without merit and belied by the prosecutor’s own comments during summation during which he utilized the testimony that he had elicited on his direct case to urge the conclusion that the defendant was responsible for Gibson’s murder. In any event, the fact that the evidence did not directly link the defendant to Gibson’s murder “resulted in an implicit invitation to the jury to speculate” that the defendant committed, or was responsible for, that crime (People v Rivera,
The recognized danger of subjecting a defendant to a trial within a trial was fully realized in this case. Far from completing the narrative of the events that transpired, the admission of
The unfortunate manner in which the trial spun out of control was born of the trial court’s error in permitting evidence of the uncharged crime to be admitted during the People’s direct case. The impact of this error on the trial was not eliminated by the court’s instruction to the jury that “this defendant . . . has not been charged with causing the death of the witness Bobby Gibson. The People have introduced evidence regarding Mr. Gibson’s death for the purpose of explaining the state of mind of the three complainants . . . and to provide the background for their participation in the witness protection program of the District Attorney’s office.” The instruction merely stated that the defendant had not been charged with Gibson’s murder, thereby inviting retribution from the jury if it speculated that the defendant was responsible for Gibson’s murder, but had somehow avoided prosecution for that crime.
It is also notable that the jury was not instructed as to what limited purpose it could use the evidence of the uncharged crime
The temptation to speculate as to the defendant’s involvement in Gibson’s murder must be overwhelmingly evident to any reader of the facts of this case. As recognized by the Court of Appeals in a similar context, “while it was not difficult to construct a superficially convincing narrative based on this propensity driven supposition, it is precisely such a carelessly constructed yet highly seductive narrative that the Molineux doctrine prudently excludes from a criminal trial” (People v Cortez,
“[T]he more heinous the uncharged crime, the more likely that jurors will be swayed by it, and the difficulty faced by the defendant in seeking to rebut the inference which the uncharged crime evidence brings into play” (People v Robinson,
A defendant should only be compelled to defend against the crimes for which he was charged. Accordingly, I vote to reverse the judgment and order a new trial on the counts of the indictment charging the defendant with bribing a witness.