People v. TuckerPeople v. Tucker
OPINION OF THE COURT
Defendant has moved pursuant to CPL 440.10 for an order vacating his conviction by a jury of murder in the second degree, attempted robbery in the first degree and criminal pos
Prior Proceedings
Defendant’s conviction concluded his second trial after reversal of his first conviction for murdеr in the second degree and other crimes. (See, People v Tucker,
Prior to the second trial, though no demand for discovery had been made on the prosecution pursuant to CPL 240.20, the defense attorney served and filed a motion pursuant to CPL 240.40 requesting, inter alia, that the prosecution be ordered to: "Set forth whether thе identifying witness, or any other People’s witness, has * * * ever received any psychiatric, alcohol or drug treatment and whether it was within a treatment institution and if so, set forth.”
The prosecution did not consent or refer to this request in its answering papers, the court did not rule on it, and neither at
The retrial commenced on March 15, 1993, and concluded on March 30, 1993, when defendant was again convicted of murder in the second degree. On May 24, 1993, he was sentenced to no less than 20 years to life imprisonment and his appeal to the Appellate Division, Second Department, is pending. At that trial the prosecution presented evidence beyond that offered аt the first trial. Specifically, in addition to two eyewitnesses who testified at the first trial, an accomplice — one Michael Hodge — testified that the defendant had participated in a robbery and the homicide which resulted. As noted above, Ronald Holloway also testified for the first time that the defendant had confessed to him while both were in custody.
Findings of Fact
Ronald Holloway met the defendant Tucker and the two became friends some years ago when both were serving prison terms for murder. They met again in 1992, while each was incarcerated at Rikers Island. At that time, in accordance with Mr. Holloway’s testimony at trial, defendant Tucker discussed the events giving rise to his previous conviction in the context of defendant Tucker’s successful appeal and preparation for a new trial. The discussions included admissions by defendant Tucker that he had participatеd in the crimes of which he had been convicted. Following a fight between them, Mr. Holloway called Detective Robert Salem and stated that he had information about defendant Tucker. This led to a meeting on July 23, 1992 with Assistant District Attorney Barry Temkin, the prosecutor assigned to defendant Tucker’s retrial. At that meeting Mr. Holloway stated that defendant Tucker had confessed his guilt to him and a long interview — which was tape recorded — ensued. The entirе interview — during which Mr. Holloway was placed under oath — was held in the presence of Detective Salem and his partner, a detective named McNally, and neither left the room at any time during the interview. The entire interview was recorded, the tape was in no way manipulated or altered, and at no time did Mr. Temkin coach Mr. Holloway or tell him what to say.
During the interview, Mr. Holloway informed Assistant District Attorney Temkin of several details сoncerning the manner in which the crimes had been committed — details
In a letter written at the court’s direction on October 2, 1992 (copy to defendant’s attorney), Assistant District Attorney Barry Temkin stated the promises made to Mr. Holloway in return for his testimony. The promises included making "a favorable recommendation to the appropriate authorities, agencies, courts and boards”. The lеtter further noted that "the prosecution has agreed to make and has in fact made a recommendation to the Department of Corrections consistent with the security of the witness”.
Thereafter, on February 9, 1993, Mr. Holloway was charged with infractions of Department of Correction’s rules, including: disrespect of staff, refusing a direct order, and refusing to identify himself. After a hearing held on February 11, 1993, Mr. Holloway was found guilty and sentenced to 20 days of "central punitive segregation” — a punishment sometimes colloquially described as the "bing”.
Mr. Holloway did not serve his punishment time because he was moved to a mental observation unit on February 15, 1993 and remained there until March 11, 1993, with a brief interruption on March 10, 1993. An admission note by a psychiatrist in his medical record dated February 15, 1993 states that "patient was transferred from C-95 after a suicide attempt. Inmate was found with a sheet around his neсk trying to tie it to light fixture. He stated, T have the right to take my life.’ Patient facing 20 days Bing time. Patient denies past psychiatric history”.
The diagnosis noted on the same date was that Mr. Holloway was alert and well-oriented, not psychotic, that he denied hallucinations or delusional thinking, that his concentration was good and his memory intact, that he had average intelligence and that he appeared manipulative. The doctor cоncluded that he suffered from "adjustment disorder, mixed features, a personality disorder, and left knee arthritis”. An interview note made on March 10, 1993, by "L. Sadowitz” states that Mr. Holloway had been referred "after hang-up attempt 2/15/93 in
The records further show that Mr. Holloway was discharged from the psychiatric unit on March 10, 1993, called upon to begin serving his "bing time” on March 11, 1993 and falsely reported that he had swallowed batteries to "get out of it”. The record of March 11, 1993, further notes "no evidence of psychosis; insight and judgment adequate”. On March 12, 1993, three days before defendant’s trial began, he was transferred to the nonpsychiatric, general population at the Bronx House of Detention, where he remained until April 30, 1993.
In due course, pursuant to the agreement between him and the prosecution, Mr. Holloway testified at defendant’s second trial. The agreement was the one relating to prompt parole and transfer to a detention facility secure from retribution at defendant’s hands or at his direction. The agreement did not include a provision, as claimed by Mr. Holloway, that Assistant District Attorney Temkin would recommend Mr. Holloway’s "immediate release” or delivery to him of a free copy of his trial transcript. Nor did it include an understanding — as also claimed — that Mr. Holloway falsely testify in accordance with "coaching” by Assistant District Attorney Temkin as to "details” or any aspect of his testimony. Finally, Assistant District Attorney Temkin, unaware that Mr. Holloway had been the subject of psychiatric observation between February 15 and March 11, 1993, did not discuss that matter in any way with Mr. Holloway and therefore — contrary to Mr. Holloway’s assertion — gave no instructions to the effеct that Mr. Holloway conceal it from the defense.
Mr. Holloway’s so-called suicide attempts were contrived efforts to avoid punishment for misconduct while in custody. At all times during Mr. Holloway’s psychiatric observation (Feb. 15 to Mar. 11,1993) through the conclusion of the trial, the records of that observation were in the possession of Montefiore Medical Center, Rikers Island Health Services. Throughout the trial, the facts concerning Mr. Hоlloway’s psychiatric observation — as well as the existence of the records thereof — were unknown to the prosecution and the defense was never informed of those facts or the existence of the records.
Subsequent to the trial, on April 22, 1993, Mr. Temkin wrote to an agent of the Department of Correctional Services requesting that Mr. Holloway be kept separate from the accomplice Michael Hodge, as well as from defendant Tucker and any
Thereafter, on May 11 and August 16, 1993, Mr. Holloway wrote letters to Mr. Temkin and District Attorney Hynes, respectively, evincing anger and frustration at Mr. Temkin and the District Attorney’s office generally. The first stated that — confined as he was at "Sing Sing” — he was in great danger at the hаnds of friends of defendant and he threatened "to resort to other methods” if Mr. Temkin did not help. Soon thereafter, on May 19, 1993, Mr. Temkin wrote to the Commissioner of Correctional Services and sent a copy to Mr. Holloway. In the letter, Mr. Temkin stated that Mr. Holloway had testified against defendant, that defendant had again been convicted and that — in Mr. Temkin’s opinion — Mr. Holloway had good rehabilitation potential. He requested that "aрpropriate security arrangements” be made for Mr. Holloway, that he be kept separate from defendant and receive favorable consideration when he first became eligible for parole in May 2001. In his letter of August 16,1993, Mr. Holloway complained directly to Mr. Hynes that Mr. Temkin had failed to have him transferred to an institution beyond the reach of defendant’s friends, that he was in great danger where he was and he again threatened to "resort to other methods” unless he received satisfaction.
During the summer of 1993, Mr. Temkin also supplied Mr. Holloway with a free copy of the transcript of Mr. Holloway’s trial — a copy which Assistant District Attorney Temkin had received from the Office of the Bronx County District Attorney while Mr, Temkin was preparing for trial. The copy was delivered to Mr. Holloway after Mr. Temkin had been informed that the Bronx County District Attorney did not want it back and not pursuant to any promise made to Mr. Holloway.
Mr. Holloway followed through on his threats to "resort to other methods” by providing defendant Tucker with an affidavit sworn to on June 20, 1994, recanting the testimony given by Mr. Holloway at trial. That recantation, as well as Mr. Hoi
The prosecution has never had possession of the audiotаpe describing the autopsy of the deceased in this case. The tape has remained at all times in the possession of the New York City Medical Examiner.
Lastly, at defendant’s trial the prosecution presented the testimony of two civilian witnesses, who had also testified at defendant’s first trial, and each identified defendant as an active participant in the murder. The accomplice Michael Hodge, who had not рreviously testified, also identified the defendant as a participant. None of these witnesses has recanted his testimony.
The Law
1. The witness Holloway’s recantation and claims of prosecutorial misconduct.
As noted above, the testimony of Mr. Temkin was credible — and credited — in all important respects. The testimony of Mr. Holloway, on the other hand, was implausible in the-extreme and incredible in all important respects, with particular reference to his assertions claiming falsity of his testimony at trial, as well as subornation of perjury and undisclosed promises on the part of the prosecutor. The motion, insofar as it is based upon those claims, is therefore without merit. (See, People v Shilitano,
2. The Brady issue regarding witness Holloway’s psychiatric treatment and confinement immediately prior to his testimony.
It is true that evidence that a witness has received psychiatric treatment can be properly received on cross-examination to impeach credibility. (See, People v Rivera,
In the first instance, there is no suppression when the prosecution does not have possession of the evidence in question, actually or constructively. (See, United States v Bibby, 752 F2d 1116 [6th Cir 1985], cert denied
In People v Haley (
The Court noted approvingly that the prosecutor had responded to defense counsel’s letter, but — as noted above— nowhere was it suggested that a duty existed beyond the well-established duty not to withhold such information after the prosecution has, in fact, acquired it. (See, e.g., Giglio v United States,
Nor, it is suggested, would it be good policy to postulate or create such a duty. There is a material and healthy tension between advocates in an adversary system of justice. To permit one to draft the other as an agent for investigation would create manifest conflicts of interest, invite inappropriate and unreasonable demands for investigation and — at least occasionally — foster compliance that is grudging and halfhearted. It would also create suspicion that compliance was halfhearted even when it was not, and an incentive for never-ending complaints about the manner in which the investigation had been conducted.
It is true that possession of information or records by a different agency has, on occasion, been imputed to the prosecution. (See, e.g., People v Vilardi,
Further, even if possession were to be imputed to the prosecution, the evidence could not be properly viewed as material in any event. (See, People v Vilardi, supra.) In that case the Court of Appeals held that there must be a " 'reasonable possibility’ ” that the failure to disclose "contributed to the verdict” after the prosecutor has been made aware by a specific discovery request that defendant considered the informаtion important. (Supra, at 77.)
While a specific discovery request was made in this case, it borders on the inconceivable that knowledge of Mr. Holloway’s psychiatric observation on the part of defendant would have resulted in a more favorable verdict. The history presented by the records in question had little impeachment value compared to the criminal history of the witness, which was disclosed. Indeed, the diagnosis "malingering” would probably have had greater impact than the contrived "suicide attempt”, especially in light of the finding that Mr. Holloway was not psychotic, not delusional and had an intact memory. (See, People v Knowell,
Further, defendant was convicted after the first trial on the testimony of only two witnesses, without the testimony of the codefendant Hodge. On appeal, the Appellate Division found the evidence sufficient to support the verdict. At the second trial, Mr. Hodge’s testimony added substantial weight to that of the two original witnesses. Thus, even if the testimony of Mr. Holloway were to have been neutralized entirely the result, quite certainly, would have been the same.
3. The Rosario claim as to the Medical Examiner’s autopsy tape.
As noted above, defendant further urges that the prosecutor violated the rule spelled out in People v Rosario (
Accordingly, defendant’s motion is denied in all respects.
Notes
It is true that Justice Souter, writing for the majority in Kyles v Whitley (