OPINION OF THE COURT
Cynthiа Pugh was convicted of murder in the second degree for the February 24, 1983 shooting death of James Pipines, her employer and lover, while he lay in bed in his home in Fayetteville. After her first trial ended in a hung jury, a second trial was held at which 62 witnesses testified and 96 exhibits were received. Additionally, there were extensive hearings on defendant’s posttrial motions to set aside the verdict. Defendant now seeks reversal of the judgment of conviction and dismissal of the indictment or, in the alternative, a new trial. She claims that the evidence of her guilt was legally insufficient; that the court erred in denying her motion to set aside the verdict for the People’s failure to provide hеr with Brady material; that the court erred in denying her motion to set aside the verdict on the ground that a juror had given false answers which concealed a preexisting bias; that prosecutorial misconduct compels reversal; and that the court erred in prohibiting defendant from introducing certain proof. We have reviewed each of the several grounds of error urged and find that none requires reversal.
defendant’s account of the day of the murder
Defendant claimed that on the night preceding the day of the murder she went bowling and returned home at approximately midnight. Her daughter, Kelly, and Michelle Ailing were asleep in Kelly’s bedroom. Her son Gary was asleep on the living room couch аnd the television was on. She turned off the television and went upstairs to bed. Awakened during the night by the family dogs, she arose, put her coat over her night clothes, went downstairs, and let the dogs out. After a few minutes, she let the dogs in and returned to bed. She arose the next morning at
The decedent was president of Central City Roofing. It was adduced at trial that he normally came to work at 10:00-10:30 a.m. When he had not appeared at the office by noon, defendant testified that she becаme concerned and inquired about him. A fellow employee said that he had talked to Pipines that morning at approximately 7:30. Shortly after 2:00 p.m. she called Pluto Poulios, Pipines’ partner in Rochester, and told him that she had not heard from the victim and that she was going to contact the corporation’s lawyer, William Mackay. When she called Mackay’s office, she was informed that he was on vacation. Sometime thereafter she called Poulios again and he directed her to go to Pipines’ home to see if something was wrong. They had both called the victim’s home a few times during the course of the day but received no answer.
She left hеr office at about 3:30 and proceeded to the Pipines’ residence. Approaching a side entrance near the garage, she knocked on the door and rang the doorbell. Receiving no answer, she went to the main entrance and rang that bell and knocked on windows. When she started to leave, she noticed that the victim’s Mercedes was parked in a circular driveway to the right of the entrance drive and that a station wagon belonging to Billy Pipines, the victim’s son, was also in the drive. She therefore went back to the house and once more rang the doorbell and knocked on the door. She opened the storm door on thе entrance near the garage and when she tried the inner door, it opened. She then proceeded through the house calling Pipines’ name. As she approached the master bedroom, she saw the victim lying on the bed with his back to her and thought he was asleep. She climbed on the bed behind him and attempted to turn him over by pulling on his shoulder. When she was unable to move him, she went to the other side of the bed where she was facing him.
THE MURDER WEAPON
The victim was killed by a bullet which entered behind his right ear and emerged in front of his left ear. The spent bullet was caught in the victim’s cupped left hand and fell from his hand when the body was moved a few inches by the police. It was later established that the bullet was fired from a .38 Dеrringer pistol belonging to defendant’s common-law husband, which was found on March 5 in a grassy area of the Fayetteville Mall.
THE FLAWS IN DEFENDANT’S STORY
(1) Defendant’s account of discovering the body
Defendant’s first story to the police was that, when she discovered the body, she attempted to give him mouth-to-mouth resuscitation. She later recanted that statement. She was unable, however, to make any significant changes in her first account that she had gotten on the bed behind decedent and tried to turn him over by tugging on his shoulder and then went around to the front of him, attempting to push him backward. In her trial testimony she conceded that she knew the victim was dead, but said that she thought he might have suffered a stroke. Examination of the pictures of the dеcedent makes graphically clear that no one viewing that body, the condition of the head and the substantial amount of blood on the sheet could possibly have failed to recognize immediately that the man had been shot. The prosecutor pointedly suggested in his cross-examination and on summation that defendant’s account of the finding of the body was based on the way he appeared when she left him that morning after shooting him. At that time, he very likely had only a small wound behind the ear, had bled very little and would have looked as though he were sleeping. The medical examiner testified, however, that after the fatal shot was fired, the victim did not die instantly. Although in a comatose condition, he continued to bleed and the brain tissue oozed out of the puncture. When confronted with the pictures of decedent lying
There were othеr critical discrepancies in defendant’s account of that afternoon. She testified that Poulios had called her twice at the office. On the first call they expressed concern over decedent and defendant told Poulios that decedent might have gone to a job site with William Mackay, the corporation’s attorney. She told him that she would call Mackay’s office. According to her, she then called Mackay’s office and was told that he was on vacation. She became involved in some business matters until Poulios called her at approximately 3:30 and told her to go to the Pipines’ residence. That version of the events was rebutted by Poulios and by telephone records which indicated that Poulios had called defendant only once, at 2:11 p.m., and it was at that time that he told her to go to the Pipines’ residence. It thus became clear that defendant waited well over an hour before going to Pipines’ home. Additionally, Mackay’s secretary testified that defendant had called that office on Wednesday, the day preceding the murder, and was told on that day that Mackay was on vacation.
One other facet of defendant’s account struck a discordant note. She testified that she approached the Pipines’ residence that afternoon, рarked her car in the drive, then went to both doors, ringing the bells and banging on the doors and windows. When she received no answer, she got in her car and started to leave but as she drove out the driveway, noticed decedent’s car parked in the circular drive. Pictures of the residence and driveway illustrate that the Mercedes would be perfectly obvi
(2) Defendant’s alibi
Although the exact time of death was not established, it was determined that the victim had spoken to one of his employees at 7:30 that morning and that defendant arrived at work at 10:30. The period between those two points was critical. Defendant testified that she arose about 7:30, left the house at 8:30 or 8:45, picked up a newspaper, and drove to Denny’s for breakfast. Michelle Ailing, a guest at defendant’s home, testified that she awakened at approximately 5:00 or 5:30 that morning, saw defendant with a coat and long garment, heard her go downstairs and heard the door open and close. When Michelle arose at 7:30 to let the family dogs out, she did not see defendant’s car in the driveway nor hear or see her in the house. Defendant’s son awakened at approximately 7:30, looked in his mother’s bedroom, but did not see her. He left the house at 7:45 and did not see his mother’s car in the driveway, although he specifically looked for it. The testimony of various co-workers of defendant established that she customarily arrived at work between 8:00 and 8:30, yet on this day, although she didn’t leave her home until 8:30 or 8:45, she unexplainably went to Denny’s for breakfast, something she admitted she had never done before, and stayed for over an hour reading the paper. She described the person who waited on her as a mid-forties chunky woman with dark hair. Yet the only woman of that description working there that day was working at the counter, not in the tablе area in which defendant testified she had sat, and did not have a check which reflected the food which defendant said she had ordered. Significantly, when questioned by the police on the night of the murder, defendant did not relate her trip to Denny’s but stated she had arrived late for work because she had bowled the night before.
(3) Evidence that defendant was with the victim, on the morning of his death
According to defendant’s testimony, decedent had delayed his return from Florida until the week of February 20 so that he could be alone at his residence since his wife and daughter remained in Florida and his sons were away in Texas. Defendant’s husband was also scheduled to be away that week. The evidence established that defendant and decedent spent Monday
Defendant’s testimony was that it was customary for decedent to park his Mercedes in the circular drive when she was there so that she could drive her car into the garage where it would not be observed. Those facts certainly lent credence to the prosecutor’s theory that Cynthia spent at least a portion of the night and/or morning with the victim. That is further supported by the fact that the victim was shot in the nude, apparently while sleeping. Moreover, the residence was equipped with an elaborate alarm system which was not triggered, there were no signs of a break-in or forced entry and nothing was disturbed or taken. There was testimony that defendant had been at the house on numerous occasions, was aware of the security system and had a key to a recently installed deadbolt lock.
(4) The murder weapon
Defendant testified that on Wednesday, February 16, decedent had called her from Florida during the day and told her to be home that night to receive an important phone call. In order to receive the call, she obtained a substitute for her bowling team. When he called that night, the victim told her that he had had an argument with his wife, that he was going to leave his wife, begged her to take her daughter and go with him to Key West, and indicated that he was staying an extra week in Florida so that he could be alone in his home the following week. She said that they discussed an attempted break-in at his Fayetteville home that day and that he expressed a great deal of concern over the break-in and did not want to stay alone in the house without a gun. Therefore, he asked her to get a gun from her husband’s gun cabinet and to take it with her when she picked him up at the airport on Sunday. Consequently, she took the Derringer from the locked gun cabinet and, because she
The testimony of other witnesses and a police report, hоwever, established that the attempted break-in of Pipines’ residence occurred on February 17, not February 16. Thus, the lengthy conversation with the decedent on the 16th could not have concerned the break-in as a reason for his requesting the gun. Confronted with the contradictory evidence, defendant insisted that the phone call on the 16th concerned the break-in but later conceded that the conversation must have taken place on February 18. Additionally, although telephone records established a lengthy call from Florida to defendant’s residence on the 16th, the records reflected only one call to Central City Roofing on that day but it was after defendant stated she had left the office. Thus, decedent could not have told her to be home that night for an important call. Finally, the victim was a hunter, had guns of his own, was a successful and prominent businessman and certainly could have obtained a gun if he had desired to do so.
(5) Evidence of motive
Defendant claims that the People failed to establish any motive for killing James Pipines. There is no requirement that the People establish motive; however, proof thereof is always a relevant consideration in assessing guilt based solely on circumstantial evidence (see, People v Moore,
Moreover, although defendant claimed that decedent loved her, was going to leave his wife and several days earlier had asked her to marry him, there was contrаdictory proof. Only days before he was murdered, the victim had confided to a close friend that he had had a wonderful winter in Florida, that he had enjoyed being with his wife and family, and that it was becoming increasingly difficult for him to return to Syracuse. He stated that he was looking forward to celebrating his wedding anniversary with his wife in Florida the following weekend. There was thus sufficient evidence from which the jury could have inferred that defendant had a motive to kill Pipines, who, after a relationship of 12 years, was attempting to ease her out of his personal and business affairs.
THE SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence adduced at trial, wholly circumstantial in nature, was insufficient to establish her guilt beyond a reasonable doubt. When the evidence on which a defendant is convicted is purely circumstantial, such evidence must establish the defendant’s guilt beyond a reasonable doubt and exclude to a moral certainty every reasonable hypothesis of defendant’s innocence (see, People v Way,
THE PEOPLE’S FAILURE TO PROVIDE DEFENDANT WITH EXCULPATORY MATERIAL
Three days after the jury verdict was rendered, defense counsel learned that Patricia Kolbasook, a woman who did cleaning
In Brady v Maryland (supra), the court held that where an accused has requested exculpatory evidence, the withholding of such evidence violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution. The standard for determining materiality, in the constitutional sense, was established in United States v Agurs (
Defendant urges that by whatever standard the issue of the materiality of undisclosed exculpatory evidence is measured, the court should have set aside the verdict and granted a new trial on the basis of newly discovered evidence because the omitted evidence would clearly have affected the jury deliberations. That is simply not the proper yardstick by which the asserted error is to be measured. Indeed, in United States v Agurs (supra, p 108), the court specifically rejected that approach which it denominated the “ ‘sporting theory of justice’ ”. As to the standard for determining when “newly discovered evidence” mandates a new trial, it must be “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant” (CPL 330.30 [3]). Since defendant was charged with only a single count of murder in the second degree, the only “more favorable” verdict which could have been rendered was an acquittal. In order to acquit defendant, the jury would have had to have a reasonable doubt as to her guilt and thus the standard of review of the omitted evidence is identical for both Brady considerations and those of newly discovered evidence. If the omitted evidence would have created a reasonable doubt where one did not otherwise exist, defendant would be entitled to a new trial.
The evidence which would have been introduced was that three men in a Lincoln were seen leaving the victim’s driveway at around 9:15 on the morning of his death. Such evidence would certainly have bolstered defense counsel’s theory that the victim’s death was the result of a gangland execution. Whereas this association has a superficial appeal, it does not withstand scrutiny. There is not one shred of evidence to support the defense theory of a gangland execution. To the contrary, the evidence belies such theory. It strains credulity to believe that organized crime killers went to decedent’s residence, fortuitously found the Derringer with which defendant had provided decedent, killed him with it, removed it from the premises although there would be nothing to connect them to the weapon, and transported it from the scene, planting it at the mall in an effort to implicate defendant. The mere statement of the proposition serves as its refutation. The evidence against defendant, although purely circumstantial, was compelling. As noted heretofore, defendant was entrapped by the many flaws in her story. To conclude that the omitted evidence would have been sufficient to overcome all
Having decided that the withheld evidence does not meet the test of materiality set out in Agurs (supra), we would, neverthelеss, be remiss if we did not comment on the prosecutor’s failure to divulge this information to defense counsel. Considering the circumstantial nature of the proof, the People’s theory regarding the time of death, and the defense theory of a gangland execution, it is inconceivable that the prosecutor would not have perceived this information as a valuable lead for the defense. The prosecutor must always be aware of the obligations arising from the public trust invested in him. His responsibility in a criminal prosecution “is not that [he] shall win a case, but that justice shall be done * * * [H]e is in a peculiar and very definite sense the servant of the law, thе twofold aim of which is that guilt shall not escape or innocence suffer” (Berger v United States,
Although not necessary to our determination of this issue, we note that defense counsel could have made a specific request that the District Attorney turn over the Manlius police files containing the Kolbasook affidavit. Defendant hired an investigаtor who went to the police and asked for their reports and was told that they had been handed over to the District Attorney. Yet there was no follow-up request to the District Attorney. Thus, unlike the trial court, we believe that defendant could have produced the omitted evidence “with due diligence”.
THE INTEGRITY OF JURY SELECTION
In a newspaper account which appeared the day after the jury verdict, a woman juror was quoted as having told a reporter that, “Shanahan (defense counsel) never would have kept her as a juror had he been able to read her mind during the jury selection process. She said she originally thought Pugh was guilty.” Defendant moved to set aside the verdict on that basis (CPL 330.30 [2]) and a hearing was held at which all of the women jurors were called as witnesses. One of the women jurors admitted that it was she who had spoken to the reporter and that she had told her that she held a pretrial opinion that defendant was in fact guilty. The court found that the newspaper article accurately reflected the juror’s statement but that
Prior to jury selection the trial court indicated that it would ask prospective jurors if they held an opinion as to the guilt or innocence of the defendant withоut asking them to express what that opinion was. If the answer was in the affirmative, the court would ask the juror if he or she could put that opinion aside and decide the case solely on the merits. There was no objection to this procedure by either counsel and that line of questioning was pursued by counsel on voir dire. Examination of the transcript of the voir dire reveals nothing inconsistent between the juror’s statement to the reporter and her replies on voir dire. Defense counsel asked her if she had formed an opinion prior to being called as a juror and she replied that she had. He did not ask her what that opinion was. She further stated that she could put that opinion aside and render a verdict based on the evidence introduced during trial. The only difference between those replies and her statement to the reporter was that she told the reporter what her opinion was. The juror stated by way of affidavit and in response to the court’s questioning at the hearing that she had reached her verdict solely on the evidence introduced in the courtroom and that she had followed the instructions of law given by the court.
The authorities relied on by defendant are inapposite. In those cases where a verdict has been overturned because a juror was found ineligible to sit, it was established that the juror had lied about factual matters during voir dire (see, e.g., People v Leonti,
FAILURE TO ADMIT PROOF OF THREATS
Defense counsel made an offer of proof, out of the presence of the jury, whereby he sought to elicit testimony of Investigator
We have considered the various other points raised by defendant and find them to be without merit. Accordingly, there being sufficient proof of defendant’s guilt and no errors requiring reversal, the judgment of conviction should be affirmed.
Dillon, P. J., Doerr, Boomer and Schnepp, JJ., concur.
Judgment unanimously affirmed.