THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SHAWNDELL JOHNSON, Also Known as RAMEL VOULGAOUSN, Also Known as BUCK, Also Known as SOUTHSIDE, Appellant.
Supreme Court, Appellate Division, Third Department, New York
103 A.D.3d 1272 | 965 N.Y.S.2d 220
Egan Jr., J.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered January 12, 2011 in Schenectady County, upon a verdict convicting defendant of the crimes of murder in the first degree, murder in the seсond degree, attempted robbery in the first degree (three counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, reckless endangerment in the first degree and tampering with physical evidence.
During the early morning hours of September 1, 2008, defendant and his cohorts—Tyrell Durham and David Dickerson—met up with Jennifer Derenzo Williams (hereinafter Derenzo) and her then boyfriend, Christopher Williams, at a Hess gas station in the City of Schenectady, Schenectady County. Defendant was driving a blue Lexus that he had borrowed from a friеnd, and Derenzo was driving a rented Toyota Camry. The group, at least some of whom already had been drinking beer and/or smoking marihuana, purchased additional beer and decided to continue partying at the home of Travis Cellini, where they remained until approximately 4:30 a.m. After departing Cellini‘s home, the group—cоnsisting of Derenzo and Williams in the Camry and defendant, Dickerson and Durham in the Lexus—unsuccessfully attempted to purchase marihuana from a local “weed spot.” The group continued to drive around Schenectady County and, at some point, defendant struck a curb with the Lexus and apparently damaged one of the whеels. Defendant then parked
Upon arriving at thаt address, defendant entered an apartment and made his purchase from Tristan Phillips. Defendant, however, was dissatisfied with the quality of his purchase and thereafter devised a plan to rob the weed spot in order to obtain money to fix the damaged Lexus. At defendant‘s request, Williams retrieved a 9 millimeter handgun that he had stashed at a friend‘s house earlier that evening, and the group then drove back to 933 Albany Street.1 Once there, Derenzo parked a few houses away in order to avoid detection, and defendant, Williams, Durham and Dickerson exited the Camry and entered the weed spot.
Defendant knocked on the door of the apartment, told Phillips why he was there, explained that he had been in an accident and asked Phillips to let him inside so that he could wash his hands. Williams, Dickerson and Durham waited—apparently out of sight—in the hallway. Defendant told Phillips that he was waiting for his “homeboy” to bring him money for the purchase and lingered in the apartment—waiting for Williams to rush in as planned. When Williams failed to materialize, defendant told Phillips that he had changed his mind and started to leave. At this point, Ulysses Canty—the alleged proprietor of the weed spot—became suspicious, pushed defendant from the apartment and closed the door behind him.2 According to Williams and Durham, defendant then grabbed the gun from Williams and fired multiple shots at the closed door. Canty, who was braced against the inside of the door, was struck and fatаlly wounded. Defendant, Williams, Durham and Dickerson then fled the scene in Derenzo‘s Camry, which she crashed into a telephone pole shortly thereafter.
Defendant subsequently was arrested in connection with unrelated drug sales made to a confidential informant (see People v Johnson, 91 AD3d 1194 [2012], lv denied 18 NY3d 995 [2012]) and, in September 2009, was indicted and charged with various crimes stemming from the shooting at the weed spot. Following a 14-day jury trial, defendant was convicted of the crimes of
We affirm. Defendant initially challenges certain of Supreme Court‘s pretrial rulings, including the court‘s decision to permit the People to introduce evidence regarding defendant‘s drug-trade activity and rumored affiliation with the Bloods gang. “Generally speaking, evidenсe of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme and identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness‘s narrative” (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marks and citations omitted]). Here, defendant‘s drug-related activities and purported gang membership provided necessary background information, explained how Derenzo, Williams, Durham, Phillips and defendant knew one another (as well as why defendant‘s acquaintances went along with his plan to rob the weed spot) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant‘s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” (People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]; see People v Jackson, 100 AD3d 1258, 1261 [2012]; People v Burnell, 89 AD3d at 1120-1121; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 833 [2011]). We also are persuaded that Supreme Court, which revisited this issue frequently throughout the trial, properly balanced the probative value of such evidence against its prejudicial effect and gave appropriate limiting instructions (see People v Lee, 80 AD3d at 880). Under these circumstances, we discern no error in the admission of the proffered evidence.
We do, however, find that portions of defendant‘s November 24, 2008 video-recorded interview—conducted by a member of the Schenectady Police Department—should have been suppressed based upon defendant‘s clear invocation of his right to
Here, defendant was interviewed for approximately 30 minutes on November 24, 2008 by a detective with the Schenectady Police Department. After advising defendant of his Miranda rights, the detective began questioning defendant regarding his association with Derenzo and Williams, as well as his activities on the morning of the shooting. Less than 18 minutes into the interview, however, defendant stated that he did not wish to answer any more questions; in response, the detective indicated that he nonetheless wished to ask additional questions of defendant and thereafter proceeded to do so. This pattern—as summarized below—would repeat itself over the coursе of the next 13 minutes or so until defendant uttered the word “lawyer” and the questioning finally ceased.4
“7:53:15 a.m.
“Defendant: I don‘t wanna do no more questions, man. I wanna see what I‘m about to be locked up for.
“Detеctive: Well, I think you are going to be locked up for sales, sales of drugs. “Defendant: Alright.
“Detective: Alright?
“Defendant: Alright.
“Detective: OK, but I still wanna continue to ask you some questions . . .
“Defendant: Hold on, hold on, hold on, enough. I don‘t want to finish answering the questions. I don‘t wanna be rude or disrespectful neither sir.
“Detective: I haven‘t been rude or disrespectful to you.
“Defendant: I know, I know it. And I don‘t, I don‘t wanna like, seem like I‘m being rude or disrespectful likе I just said for all of the questioning just because . . .
“Detective: Alright, let‘s go back to uh . . .
“Defendant: I really don‘t wanna answer.
“Detective: Let‘s do the yes or no thing, yes or no.
“Defendant: Alright.” . . .
“8:02:16 a.m.
“Defendant: I don‘t want any more questions.”
“8:05:25 a.m.
“Defendant: Like I‘m, I‘m done with the questioning like, not to be rude . . .
“Detective: Well, you‘re not being rude. You‘re doing pretty good. I‘m not done with the questioning yet.
“Defendant: I don‘t—all right [sic], fine, I ain‘t got no more answers.” . . .
“8:05:57 a.m.
“Defendant: Listen, listen. Hear me? Say right to me, said like I read my rights. Like I don‘t got a lawyer presеnt . . . That‘s what I‘m trying to tell you, so . . .
“Detective: What are you trying to tell me?
“Defendant: I don‘t want to talk no more . . .
“Detective: Okay, that‘s fine.
“Defendant: . . . like I want to go over to the jail.
“Detective: All right [sic].
“Defendant: Lock up, get my phone call, please.”
As the foregoing summary makes clear, defendant repeatedly invoked his right to remain silent at numerous points throughout the interview (compare People v Horton, 46 AD3d at 1226; People v Caruso, 34 AD3d at 862-863; People v Logan, 19 AD3d at 941) and, at all times prior to the actual termination thereof, the detective in question repeatedly ignored defendant‘s assertion of his constitutional right. The recorded interview and accompanying summary leave no doubt as to what transpired, and the detective in question acknowledged at the underlying Huntley hearing—and at the earlier Huntley hearing conducted on the unrelated drug charges—that he continued to question defendant despite the fact that defendant more than once indicated that he did not wish to answer any more questions.5 Accordingly, Supreme Court erred in failing to suppress those statements made by defendant after the point in time that he first unequivocally stated that he no longer wished to answer any further questions (see People v Rodriguez, 77 AD3d 975, 975-976 [2010], lv denied 16 NY3d 836 [2011]). However, for the reasons that follow, we deem the admission of the redacted intеrview6 into evidence to be harmless error and, therefore, reversal of defendant‘s conviction is not required. We reach a similar conclusion regarding defendant‘s related claim—namely, that Supreme Court further erred in failing to redact from defendant‘s recorded statement his various invocations of his right to remаin silent.
Where, as here, the asserted error is of a constitutional dimension, the error may be deemed harmless only if “there is no reasonable possibility that the errоr might have contributed to defendant‘s conviction and that it was thus harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Best, 19 NY3d 739, 744 [2012]; People v Westervelt, 47 AD3d 969, 973 [2008], lv denied 10 NY3d 818 [2008]). In our view, the testimony of, among others, Derenzo, Williams, Durham and Phillips, together with the independent fingerprint and DNA evidence,7 constitute overwhelming evidence of defendant‘s guilt. We therefore conclude that there is
Finally, we reject defendant‘s assertion that his conviction with respect to the charge of murder in the first degree is not supported by legally sufficient evidence9 and, further, is against the weight of the evidence. Insofar as is relevant here, “[a] person is guilty of murder in the first degree when . . . [w]ith intent to cause the death of another person, he [or she] causes the death of such person or of a third person” while in the course of committing or attempting to commit a robbery or in the immediate flight therefrom (
Defendant‘s intent may be inferred from both his actions and the surrounding circumstances (see People v Rogers, 94 AD3d 1246, 1250 [2012], lv denied 19 NY3d 977 [2012]; People v Ford, 90 AD3d 1299, 1300 [2011], lv denied 18 NY3d 994 [2012]; People v Molina, 79 AD3d 1371, 1376 [2010], lv denied 16 NY3d 861 [2011]). Here, Derenzo, Williams and Durham testified that defendant—agitated, nervous and dissatisfied with his prior purchase of marihuana from Phillips—decided to rob the weed spot in order to obtain money to pay for repairs to the damaged Lexus. When the robbery failed to progress as planned and defendant was abruptly pushed out of the apartmеnt, Williams and Durham testified, defendant grabbed the gun from Williams and attempted to either prevent the apartment door from fully closing or force his way back inside. At this point, defendant fired five shots at the door; four of the projectiles struck and penetrated the door—at varying heights, locations and angles of trajectory—and one of the projectiles penetrated the surrounding frame. According to Durham, one of these shots
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the judgment is affirmed.