People v. WellsPeople v. Wells
Counsel erred in failing to give notice of intent to offer psychiatric evidence.
Prior to trial, defendant was examined by a mental health expert. Because defendant chose not to call this expert as a wit
The People contend that counsel‘s failure to provide notice of intent does not require reversal because County Court also denied the request for an EED defense charge on an alternate basis, namely the lack of proof regarding EED. To support the defense, defendant had to show that at the time of the homicide he acted under the influence of EED and that there was a reasonable explanation for that disturbance (see People v Roche, 98 NY2d 70, 75-76 [2002]; see also People v Smith, 1 NY3d 610, 612 [2004]). EED is a “mental infirmity not rising to the level of insanity . . . , typically manifested by a loss of self-control” (People v Roche, 98 NY2d at 75; see People v Harris, 95 NY2d 316, 319 [2000]). Action influenced by EED need not be spontaneous, but may be a significant mental trauma that “has affected a defendant‘s mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore” (People v Patterson, 39 NY2d 288, 303 [1976], affd 432 US 197 [1977]; see People v Casassa, 49 NY2d 668, 676 [1980], cert denied 449 US 842 [1980]). To be entitled to an EED defense jury charge, defendant had to submit “evidence sufficient for a jury to find, by a preponderance of the evidence, that the elements of this аffirmative defense were established” (People v Walker, 64 NY2d 741, 743 [1984]). When considering if the EED defense should have been charged to the jury, we view the evidence in a light most favorable to defendant (see People v Harris, 95 NY2d at 320).
This testimony was insufficient to support a jury finding that defendant established, by a preponderance of the evidence, the elements of the EED defense (see People v Walker, 64 NY2d at 743). Dеfendant did not provide any proof of his mental state at the time of the commission of the crime, stating—despite having taken the witness stand—that he did not want to talk about what happened in regard to the killing itself. Counsel asked questions to elicit dеfendant‘s mental state at the time of the commission of the crime, but defendant did not respond and instead avoided that topic. While his testimony could be used to support a lack of intent because he said he could not remember, there was ample other evidence of his intent to kill the victim. His testimony may have shown that he acted on jealousy or anger when he killed her. Although those emotions may sometimes serve as a reasonable explanation for the presence of
Even viewing the evidence in a light most favorable to defendаnt, as we must when considering if the EED defense should have been charged to the jury (see People v Harris, 95 NY2d at 320), the record does not support the defense and charging it “would have invited the jury to impermissibly speculate as to the defendant‘s state of mind at the time of thе [homicide]” (People v Walker, 64 NY2d at 743; see People v Roche, 98 NY2d at 76; People v Setless, 289 AD2d 708, 709-710 [2001], lv denied 98 NY2d 640 [2002]). Defendant‘s own conduct in refusing to answer questions and to testify regarding the occurrence of the homicide itself prevented the jury from determining his state of mind during the commission of the crime.3 As County Court‘s alternative ground was a propеr basis for denying the charge, and the evidentiary problems that were the basis of that ground were beyond counsel‘s control, counsel‘s error in failing to give notice was irrelevant; defendant would not have received the EED defense chargе even had notice been given. While our state standard for meaningful representation does not require a full showing of prejudice such as a reasonable probability that the outcome would have been different without counsel‘s errors, reversal will be warranted where the inadequacy of counsel deprives a defendant of a fair trial (see People v Caban, 5 NY3d 143, 155-156 [2005]). Here, defendant‘s testimony and behavior on the witness stand resulted in the denial of the EED defense charge, independent of any еrrors by counsel. Accordingly, counsel‘s failure to give notice, while error, did not deprive de
Counsel also asked open-ended questions of a police investigatоr during cross-examination that elicited testimony that defendant “sold drugs to support himself and [the victim].” Based on some later questioning, it appears that counsel may have had some purpose for allowing testimony concerning defendant‘s рrior drug dealing, as defendant had discussed that topic with the police. This testimony may have been part of counsel‘s strategy in pursuing the EED defense by showing—as noted by counsel in his opening statement—that defendant was self-destructing, implying that his mental statе must have been affected for him to tell the police that he had committed not only this murder, but other murders—none of which could be verified by the police—and different crimes such as selling drugs. As this questioning may have been part of a legitimate strategy, we cannot find counsel ineffective for allowing that testimony into evidence (see id. at 154; People v Henry, 95 NY2d 563, 566 [2000]; People v Wiltshire, 96 AD3d 1227, 1229 [2012]).
Counsel did err in failing to object to testimony by the victim‘s sister that defendant “forced [the victim] to have sex with him” at times. As this prior crime evidence was hearsay, prejudicial and unrelated to any issue in the case, it was inadmissible (see People v Chapman, 54 AD3d 507, 511 [2008]). This error alone is insufficient to constitute ineffective assistance (see People v Wiltshire, 96 AD3d at 1229). Counsel effectively represented defendant by making pretrial motions, representing defеndant at a suppression hearing addressing his statements, having defendant examined by a mental health professional, cross-examining the witnesses at trial and urging the jury to find that defendant did not have the proper mens rea to commit intentional murder—despite defendant‘s behavior during trial of leaving the witness stand, both during direct examination and cross-examination, before questioning was completed, and his rants several times telling the jury that he knew he was going to be convicted and sentenced to 25 years to life. Viewing counsel‘s actions in their totality, even when considering this questioning error along with counsel‘s failure to provide notice of intent to offer psychiatric evidence, counsel‘s errors did not rise to such an egregious levеl as to deprive defendant of meaningful representation (see People v Cummings, 16 NY3d at 785).
Considering defendant‘s brutal murder of a woman that he knew was pregnant, his prior criminal history and his lack of remorse, we do not find the sentence harsh or excessive.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.