Tagged: harmless error

NYCA Upholds Use of Prior Bad Act Evidence to Rebut EED Claim

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

Related Readings:

A Recent Decision: Fatally Improper Conduct Between Deliberating Jurors

While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

Related Readings: 

Second Circuit: Admittance of Co-Defendant’s Redacted Confession Violated Confrontation Clause

A recent decision by the Second Circuit Court of Appeals may provide guidance to criminal defense practitioners seeking to (1) suppress the involuntary confession of a client, and (2) limit the impact of a co-defendants’ redacted confession being admitted at trial. The Second Circuit, sitting en banc, affirmed a panel’s decision to vacate the convictions of three defendants found guilty of conspiring to commit a Hobbs Act robbery, among other things, and brandishing a firearm in furtherance of a crime of violence. The Court had been asked by the government to review a panel decision that had formerly held that the “confession” of one of the defendant’s was involuntary and should not have been admitted against the declarant at trial. The government also sought review of the panel’s determination that the admission of the “confession” was also prejudicial to the declarant’s co-defendants, requiring a new trial. United States v. Taylor, 736 F.3d 661 (2d Cir. 2013).

A panel of the Court had held that the defendant’s Miranda waiver was not knowing and voluntary, given that the defendant was clearly mentally incapacitated during his interview with federal agents. Id. at 669. The panel noted that the defendant had ingested a quantity of Xanax pills immediately before his arrest, and not long before the interrogation by the FBI had begun. The panel pointed out that the defendant was “in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep.” Id. at 670. As such, the panel determined that “the officers’ persistent questioning took undue advantage of [the] [defendants’] diminished mental state, and ultimately overbore his will.” Id. The panel concluded that the admission of the defendant’s involuntary confessions was a critical part of the prosecution’s case, and could not be deemed “harmless error beyond a reasonable doubt.” Id. at 672.

Notably, the Second Circuit (en banc) withdrew the panel’s prior decision, and issued a superseding opinion. States v. Taylor, 2014 WL 814861, (2d Cir. 2014). It not only reaffirmed the panel’s prior decision in all respects, but further held that the admission of the defendant’s “confession” at trial violated the Confrontation Clause rights of the other co-defendants. The Court ruled that the redacted confession simply did not comply with Bruton, and made it obvious to jurors that the declarant had implicated his co-defendants in the crime. The Court explained that the redacted version of the defendant’s statement suggested that the original statements contained actual names.

The Court took observance of the fact that the redacted statement had contained both the declarant’s name and the name of the government’s cooperating witness (“Luana Miller”), while referencing the other co-defendants by “two other individuals” or “driver.”  Id. The Court reasoned that the redacted confession allowed jurors to notice that “Miller is the one person involved who was cooperating, and [] infer that the obvious purpose of the meticulously crafted partial redaction was to corroborate Miller’s testimony against the rest of the group, not to shield confederates.” Id. at *11. The Court noted that “[i]f the defendant had been trying to avoid naming his confederates, he would not have identified one of them-Miller-in the very phrase in which the names of the other confederates are omitted.” Id.

The Court explained that “[o]nce it becomes obvious that names have been pruned from the text, the choice of implied identity is narrow. The unnamed persons correspond by number (two) and by role to the pair of co-defendants.” Id. at *12. The Court noted that the “obviously redacted confession … points directly to the defendant[s], and it accuses the defendant[s] in a manner similar to … a testifying codefendant’s accusatory finger.” Id. (quoting Gray, 523 U.S. at 194).  The Court concluded that the “awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray, and Jass.” Id.

While the Second Circuit’s decision is applaudable, it may leave many criminal defense practitioners pondering over the slew of similar cases that have come before the Circuit in the past without any success on this  issue. Both the language and form (identifying by name the declarant & cooperator(s), while others as “person/individual”) that the Court identified in Taylor appears to have been customarily approved by the Courts. Indeed, Federal prosecutors have routinely been able to utilize such redacted confessions, although the defense has routinely objected to its admission based upon the obvious nature of the redaction and the likelihood that the jury will infer that their client had been implicated by their cohort.  Nevertheless, the Second Circuit has finally spoken against this once unfettered practice, and provided some much needed guidance on the issue.

Related Readings

Federal Habeas Court Resists Deferential Standard of Review

Addressing once again the restrictive standard for granting habeas review only when the decision of a state court is not simply wrong but also unreasonable or contrary to Supreme Court authority, the Ninth Circuit granted a writ of habeas corpus in a case of “textbook prosecutorial misconduct” that the state court found to be harmless error.  The Ninth Circuit held that the finding of harmless error was unreasonable and contrary to well established Supreme Court authority.

In Dow v. Virga, the defendant’s attorney had requested that each participant in a lineup wear a bandage under his right eye to cover up the area where the defendant had a scar. At trial, however, the prosecutor knowingly elicited false evidence that this request had come from the defendant, himself, and argued in summation that this demonstrated a consciousness of guilt.  On appeal, the state court found this to be clear prosecutorial misconduct in violation of  Napue v. Illinois, but found the error harmless.  The habeas court held that the finding of harmless error violated Napue’s clearly established rule that the knowing use of false testimony is not subject to harmless error analysis.

Read the Dow v. Virga, No. 11-17678 (9th Cir. Jan. 14, 2013) decision.

This is yet another instance in which a federal habeas court has resisted the extremely deferential standard of review that explicitly requires such a court to uphold a conviction admittedly infected with constitutional error.  This may be a trend worth tracking, and we intend to watch it by setting up a repository of similar cases.