THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ARTHUR H. MORGAN, JR., Appellant.
Third Department, Supreme Court of the State of New York, Appellate Division
April 6, 2017
149 AD3d 1148 | 51 NYS3d 218
Clark, J.
On April 9, 2008, after defendant‘s wife had been reported missing, her body was found wrapped in a blanket underneath the trailer home that she had once shared with defendant. Defendant was later charged with murder in the second degree and, following a jury trial, he was convicted as charged. Prior to sentencing, defendant moved pursuant to
We turn first to defendant‘s challenge to the admissibility of testimonial evidence that he perpetrated prior acts of domestic violence against the victim. “Evidence of . . . prior uncharged crime[s or prior bad acts] may not be admitted solely to demonstrate a defendant‘s bad character or criminal propensity, but may be admissible if linked to a specific material issue or fact relating to the crime[s] charged, and if [their] probative value
Next, because defendant made only a general motion to dismiss at the conclusion of the People‘s case, defendant‘s challenge to the legal sufficiency of the evidence supporting the verdict is unpreserved (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Valverde, 122 AD3d 1074, 1075 [2014], lv denied 27 NY3d 970 [2016]). Nevertheless, as part of our review of defendant‘s additional claim that the verdict is against the weight of the evidence, we must assess whether the elements of murder in the second degree, which requires proof “that defendant caused the victim‘s death after having acted with the
At trial, the People sought to prove the theory that defendant killed the victim during an episode of domestic violence. As to the element of intent, which may be properly inferred from a defendant‘s conduct and the surrounding circumstances (see People v Taylor, 134 AD3d 1165, 1166 [2015], lv denied 26 NY3d 1150 [2016]; People v Chancey, 127 AD3d 1409, 1411 [2015], lv denied 25 NY3d 1199 [2015]), the People called several witnesses who testified to previously observing defendant perpetrate acts of domestic violence against the victim, including striking her, holding her by the throat and threatening to kill her. In addition, an acquaintance of the victim testified that, toward the end of March 2008, she had a telephone conversation with defendant wherein she informed defendant that the victim had been cheating on him. The acquaintance stated that, in reaction to the victim yelling in the background, defendant told her that he would call her back after he had “take[n] care” of the victim. This testimony was corroborated by defendant‘s statements to law enforcement that he had argued with the victim before her disappearance, as well as the testimony of defendant‘s brother, who asserted that defendant had told him about the conversation with the acquaintance and that the ensuing argument with the victim had “got[ten] out of hand.”
As to the issue of whether defendant caused the victim‘s death, notwithstanding that the People‘s expert pathologist testified that he could not identify the cause of death,2 the victim‘s body was discovered wrapped in a blanket and hidden
underneath the trailer home that she shared with defendant. The scientific evidence established that the victim‘s body had been wrapped in the blanket before she was moved from within the trailer to underneath the trailer and that defendant‘s DNA was on that blanket. Defendant‘s mother testified that, on March 30, 2008, she went to defendant‘s home and observed the victim lying “face up” in bed, partially covered with the blanket in which she was later discovered. In addition, defendant‘s DNA was found under the victim‘s fingernails, and the police investigator who interviewed defendant about the victim‘s disappearance testified that he had observed scratches on defendant‘s face. Defendant‘s DNA was also found on blood stain cuttings from a curtain in the master bedroom and the victim‘s shirt.
Further, defendant‘s brother testified that defendant had confessed to killing the victim during an argument and stated that he had “no other choice” but to hide her body underneath the trailer. That testimony was partially corroborated by the testimony of defendant‘s friend, who stated that defendant had asked if the police would look for him if the victim did not appear in Family Court and her body was not found. Moreover, defendant gave conflicting statements to law enforcement, his mother and his brother as to where he went and what he did after arguing with the victim. Finally, the victim‘s driver‘s license, Social Security card and health insurance card—the very documents that defendant had told an investigating police officer that the victim had taken with her when she left the trailer following their argument—were retrieved from defendant‘s wallet. In our view, it would not have been unreasonable for the jury to have acquitted defendant based on the foregoing evidence, as the jury could have discredited the testimony of the People‘s key witnesses, including defendant‘s brother, and accepted the defense‘s theory that someone else had killed the victim. However, viewing the evidence in a neutral light and extending appropriate deference to the jury‘s assessment of witness credibility (see People v Romero, 7 NY3d 633, 644 [2006]; People v Morris, 140 AD3d 1472, 1475 [2016], lv denied 28 NY3d 1074 [2016]), we find that the weight of the evidence amply supports the jury‘s guilty verdict (see People v Wlasiuk, 136 AD3d at 1102-1103; People v Thibeault, 73 AD3d 1237, 1239-1240 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US 1293 [2011]; People v Denis, 276 AD2d 237, 240-244 [2000], lv denied 96 NY2d 782 [2001]).
In our view, such judicial interjection should have occurred here. At trial, during a charge conference following the conclusion of evidence, but before summation, it became clear that
“[THE DEFENDANT]: I never said that I didn‘t want to take the stand though, your Honor.
“THE COURT: I don‘t know what you did or didn‘t say to your attorney and that is not my business, that is confidential.
“[THE DEFENDANT]: I have never told you that I didn‘t want to take the stand.
“THE COURT: And you‘re not—you don‘t need to tell me that. That‘s something private between your attorney and the [d]efense has rested. Unless there‘s going to be a request here to reopen the defense, which I‘ll consider, you tell me, Mr. Michaels, is that a request your (sic) making?
“[DEFENSE COUNSEL]: No, it‘s not, your Honor.”
Contrary to the People‘s contention, defendant‘s statements constituted a clear request to testify, despite having perhaps been advised against it by counsel. Defendant‘s request to testify, coupled with his statements that he and defense counsel had disagreed on the issue, gave rise to one of those rare circumstances in which County Court was required to engage in a direct colloquy with defendant so as to discern whether he had been advised that the decision to testify ultimately belonged to him and whether, at the time that the defense rested, defendant‘s failure to testify had been a knowing, voluntary and intelligent waiver of that right (see People v Robles, 115 AD3d at 34-37; compare People v Perry, 266 AD2d 151, 152 [1999], lv denied 95 NY2d 856 [2000]). However, County Court failed to engage in the required inquiry so as to ensure that defendant‘s
In view of the fact that a new trial is required, we find it necessary to only briefly address a few of defendant‘s remaining arguments. As to defendant‘s claim of ineffective assistance of counsel, our review of the record demonstrates that defense counsel mounted a calculated defense through opening and closing statements and cross-examination, all of which were aimed at cultivating reasonable doubt by suggesting that someone other than defendant had killed the victim. Given this overarching strategy, we cannot say that defense counsel‘s decision not to call an expert on domestic violence or a competing expert pathologist amounted to ineffective assistance of counsel (see People v Drennan, 81 AD3d 1279, 1280 [2011], lv denied 16 NY3d 858 [2011]; People v Palmer, 247 AD2d 758, 760 [1998], lv denied 92 NY2d 903 [1998]). Further, notwithstanding defense counsel‘s failure to move to reopen the proof after defendant made on-the-record statements invoking his right to testify, the nature and extent of conversations that previously took place between defendant and defense counsel regarding defendant‘s right to testify are matters that are outside the record and, given the need for a retrial, we need not reach this portion of defendant‘s
Finally, we find no merit to defendant‘s argument that the trial judge should have recused himself because he had presided over prior Family Court proceedings involving allegations that defendant had committed acts of domestic violence against the victim. Inasmuch as none of the statutory grounds requiring recusal were implicated (see
We have examined defendant‘s remaining contentions and they are either lacking in merit or rendered academic by our determination.
Garry, J.P., Lynch, Mulvey and Aarons, JJ., concur. Ordered that the judgment and order are reversed, on the law, motion to vacate granted, and matter remitted to the County Court of Columbia County for a new trial.