[*1]
| People v Williams |
| 2007 NY Slip Op 50457(U) [15 Misc 3d 1102(A)] |
| Decided on March 12, 2007 |
| Supreme Court, Bronx County |
| Newman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Supreme Court, Bronx County
The People of the State of New York, Respondent,
against
Jason Williams, Defendants.
|
675/06
ANGEL FRAU, ESQ.
The Legal Aid Society Bronx County
Attorneys for defendant
1020 Grand Concourse
Bronx, New York 10451
A.D.A. SARA JACOBSON
Office of the District Attorney, Bronx County
198 East 161st Street
Bronx, New York 10451
Barbara F. Newman, J.
Defendant is charged with three counts of assault in the first degree under sections 120.10(1) and (2) of the Penal Law, one count of attempted murder in the second degree (P.L. § 110/125.25[1]) and sixteen other related offenses, in connection with a slashing and a shooting of the same person which allegedly occurred on January 25, 2006. On the eve of trial in the instant application defendant moved for an order permitting him to introduce at trial as a declaration against penal interest, evidence of a prior out-of-court statement of a person other than defendant who testified before the Grand Jury that he alone and not defendant committed the instant crimes. That statement was made by a declarant who would be unavailable to be called as a witness if he were to (as he did) refuse to answer questions about the crimes if called as a witness at trial. The People opposed. On February 21, 2007, and February 22, 2007, the Court conducted a Settles (People v Settles, 46 NY2d 154 [1978]) hearing. On February 22, 2007, the Court issued an interim oral decision and order denying defendant's motion and indicating that a full written decision and order would follow. This is that decision and order.
Upon consideration of the evidence presented at the hearing, the arguments of counsel and the applicable law defendant's motion is denied.
Procedural and Factual Background
Defendant is charged, inter alia, with having individually and by acting in concert with others, cut Donald Trusdale's face with a sharp metal object on January 25, 2006, and minutes later that same day having individually shot the same complainant with a handgun. In support of the instant application defense counsel advised the Court that the theory of defense which he intends to pursue at trial is that another person, Jose Roman, was the actual perpetrator of the cutting and the shooting, that Roman acted without defendant's participation and that the defense proposed to call [*2]Roman as a witness to so testify. Defense counsel also advised the Court that in the event that Roman invoked his right pursuant to the Fifth Amendment to the United States Constitution to decline to answer questions which would be put to him if called as a witness, the defense intended to offer in evidence at trial as a declaration against penal interest the transcript of the minutes of testimony which Roman gave before the Grand Jury in which he admitted the crimes and exculpated defendant.
At a combined Dunaway/Wade/Huntley/Cruz (Dunaway v New York, 442 U.S. 200 [1979]; United States v Wade, 388 U.S. 218 [1967]; People v Huntley, 15 NY2d 72 [1965] People v Cruz, 149 AD2d 151 [1st Dep't 1989]) suppression hearing, which was held and concluded prior to defendant's instant application,[FN1] the People presented evidence that defendant gave an oral statement, the substance of which was reduced to writing and defendant also made a videotape statement. In each of those statements defendant said in substance that on January 25, 2006, he had a fight with Trusdale in the vicinity of 1141 Elder Avenue during which he cut Trusdale with a razor and that shortly thereafter he saw the complainant returning to the vicinity, at which time he pointed a gun in Trusdale's direction and fired one round. A witness who identified herself as Trusdale's aunt testified that on January 25, 2006, she was in front of the building at 1141 Elder Avenue with her nephew when she heard a gunshot, and immediately afterward she saw defendant hold a pistol and fire two or three shots, one of which struck Trusdale.
The People also presented evidence at the combined suppression hearing that on January 25, 2006, in investigation of the shooting, police officers responded to and knocked on the door to apartment B7, at 1141 Elder Avenue. The officers were admitted into the apartment by defendant's brother, Steven Williams, who told them that he was the tenant of the apartment and consented to their entry therein. From where they stood one of the officers saw a substance which appeared to be marihuana on a bedroom table in a bedroom in which Roman, defendant and two others were present. All of the occupants of the apartment were handcuffed and removed from the premises, which was secured by the police while a search warrant was applied for and issued. As the occupants individually exited the building they were viewed by Trusdale's aunt, who identified defendant to a police officer as the person who had shot her nephew. All five occupants were then taken to Jacobi Hospital, where the complainant was being treated for the injuries which he sustained in the assaults. Trusdale viewed each of them individually and identified defendant as the person who shot him; he did not identify any of the other four persons as having been involved in the assaults.[FN2] Later that same day during the search of apartment B7 pursuant to a search warrant, a gun was allegedly found in the bedroom; also, a coat was allegedly found on the floor of the apartment [*3]and a sharp metal object was allegedly found in the pocket of the coat.[FN3]
On February 2, 2006, Roman, accompanied by his attorney, appeared before the Grand Jury, executed a waiver of immunity and testified under oath that on January 25, 2006, at approximately 10:00 a.m. to 10:30 a.m., in the vicinity of 1141 Elder Avenue he and the complainant had a fight during which they fell to the ground and Roman cut the complainant's face with a razor; a few minutes later the complainant returned to the vicinity and Roman shot him. (See CML8).[FN4] Roman testified that he cut and shot the complainant and that Jason Williams had not cut or shot the complainant. (See CML15; CML20; CML21). As of the date of his appearance before the Grand Jury, Roman had known defendant for "[a]bout three years" (CML13), but they were not "good friends" and Roman testified that he was "not trying to take a fall for [defendant] in this case right now" (CML14). Roman came forward "[c]ause that's the way I was brought up; if I did something, I ain't gonna let nobody else go down for something I did." (CML29).
Roman also testified that he had been incarcerated for two years for "[s]elling drugs" (CML10), and had been released from jail on January 24, 2006, the day before he cut and shot the complainant. His fight with the complainant was part of an ongoing neighborhood conflict over "[r]acial problems; a Black and Hispanic thing" (CML8),[FN5] that pre-dated his incarceration. According to Roman, "Jason Williams[, who] is Black . . . . don't have nothing to do with that racial war." (CML27). After the shooting, Roman met defendant and others to try to sell a gun: the same ".22 caliber pistol" (CML25) with which he had shot the complainant. Roman testified that he, and not defendant, put the gun "[u]nder the mattress." (CML16).
Roman and defendant were named as co-defendants in the instant indictment. They were charged jointly with one count of criminal possession of marihuana in the fifth degree(P.L. § 221.10[2]) and one count of unlawful possession of marihuana (P.L. § 221.05) by acting in concert with each other. However, Roman was not charged either individually or by acting in concert with having cut or shot the complainant or having possessed unlawfully any of the instruments which were allegedly used in the commission of those crimes. Rather, Roman was charged individually with three counts of perjury in the first degree (P.L. § 210.15) and three counts of perjury in the second degree (P.L. § 210.10) for allegedly giving false sworn statements on February 2, 2006, by testifying before the Grand Jury (1) "that Jason Williams was not present during the assault on Donald Trusdale on January 25, 2006 (Twenty-first and Twenty-fourth Counts); (2) "that he, Jose Roman, and not Jason Williams, shot Donald Trusdale with a pistol on January 25, 2006" (Twenty-second and Twenty-fifth Counts); and, (3) "that he, Jose Roman, and not Jason Williams, cut Donald Trusdale with a sharp metal object on January 25, 2006" (Twenty-third and Twenty-sixth Counts).
On December 14, 2006, Roman appeared before a justice of this court and entered a plea of guilty to perjury in the first degree, which plea was taken in full satisfaction of the instant indictment. [*4]The transcript of the minutes of the plea proceeding does not state to which of the three counts of perjury in the first degree Roman was pleading, except for the following:
THE COURT:And I state that there has been no
other promise made.
In this case it's charged that on or about February 2nd, 2006, here in the county of the Bronx, you were called as a witness before the grand jury.
THE DEFENDANT:Yes.
THE COURT:And you swore to tell the truth?
THE DEFENDANT:Yes, right.
THE COURT:And the grand jury was involved in
investigating an incident which had occurred on January 25th, 2006, an assault on one Donald Trusdale, T-R-U-S-D-A-L-E, which had occurred here in the county of the Bronx. It had occurred in the area of 1141 Elder Avenue.
So far right?
THE DEFENDANT:Right.
THE COURT:And you were asked about whether or
not Jason Williams had been present in the area and had participated in the assault on Mr. Trusdane [sic], and you knew that was an important question and it was relevant to the proceedings in the grand jury, and you lied. You said that Mr. Williams was not present.
THE DEFENDANT:Right.
THE COURT:That was a lie?
THE DEFENDANT:Right.
THE COURT:And you knew it was a lie?
THE DEFENDANT:Right.
(Transcript of minutes of plea proceedings in People v Jose Roman, Ind. No. 675/06, Supreme Court Bronx County, Part M30, December 14, 2006, at 8-9).On February 21, 2007, Roman, who is an inmate in the custody of the New York State Department of Corrections, was produced upon this Court's order and an attorney was assigned to represent him for these proceedings. Roman was given ample time to consult privately with counsel before being called to the witness stand. His attorney was also present and continued to consult with Roman while this Court examined him as to how he would respond to certain questions if they were put to him at these proceedings and if he were called as a witness at defendant's trial. The Court's examination included questions which were submitted by defense counsel and the prosecution. Roman's response to all questions concerning the incidents which form the bases of the counts with which defendant is charged in the instant indictment, including how he would answer the same questions if he were called as a witness at trial, was either "I plead the Fifth," "[p]lead the Fifth," or "[t]ake the Fifth." (See SH 469-475).[FN6]
Discussion
Defendant's application to introduce into evidence at trial the transcript of Roman's Grand Jury testimony as a declaration against penal interest is denied because circumstances independent of the statements which Roman made to the Grand Jury concerning his own culpability and the defendant's lack thereof do not support their trustworthiness and reliability, but establish instead that the statements are untrustworthy and unreliable. As the Court of Appeals said in Settles:
To qualify for admission into evidence as a declaration against the maker's penal interest the following elements must be present: first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability.
46 NY2d at 167. The proponent of such evidence "carrie[s] the burden of establishing [all of] the factors necessary to admit a declaration against penal interest" under Settles. People v Roberts,288 A,D.2d 403 (2nd Dep't 2001). Roman's statements before the Grand Jury satisfy the first three elements delineated in Settles, but not the fourth. First, Roman is unavailable to be a witness at defendant's trial because he has properly invoked his right pursuant to the Fifth Amendment to the United States Constitution to decline to answer questions which would be put to him if he were called as a witness. Notwithstanding the fact that he testified before the Grand Jury under a waiver of immunity (see C.P.L. § 190.40[2][a]), Roman has never been charged with cutting or shooting Donald Trusdale on January 25, 2006, nor has the period of limitation yet expired in which a criminal action based upon those events must be commenced (see C.P.L. § 30.10[2][b]). Consequently, at this point he could still be prosecuted for any culpable conduct in which he may have engaged and any statement which he were to make in response to a question concerning those events might tend to incriminate him. Moreover, he has testified that were he to be called as a witness at trial and questioned concerning the incident he would invoke his right against self-incrimination. Therefore, Roman is unavailable to be a witness at defendant's trial. See People v Stultz, 2 NY3d 277, 286 (2004) (witness who invokes Fifth Amendment is unavailable' under Settles). Nor will the Court permit defendant to call Roman as a witness for the sole purpose of invoking his constitutional right. See People v Thomas,51 NY2d 466, 473 (1980) ("It would . . . be wholly improper in most situations to . . . allow, a party to parade a witness before the jury for the sole purpose of eliciting in open court the witness' refusal to testify.")
Second, at the time he testified before the Grand Jury, Roman must have been aware that his statements concerning the cutting and shooting of Trusdale were adverse to his penal interest. The acts which he admitted i.e., assaults with two different weapons were inherently malicious and ineluctably unlawful. Roman was charged with no crimes relating to the conduct which he admitted, but the Grand Jury did charge him with six felonies based upon its findings that he had testified falsely. While this outcome may reflect the Grand Jury's disbelief of the truth of his admissions, it made Roman's statements no less adverse to his own penal interest. Compare, e.g., People v Martin, 8 AD3d 883, 886 (3rd Dep't 2004) ("A statement which is largely exculpatory and meant to minimize the declarant's involvement in a crime is not clearly opposed to his or her penal interest and does [*5]not qualify for admission" [emphasis supplied].)
Third, whether Roman was a mere witness or the actual perpetrator, it is apparent from all of the evidence presented at the combined suppression hearing and the instant hearing that Roman has competent knowledge of the facts underlying his statements. It has been established that shortly after the assaults were reported to the police he, like defendant, was present in an apartment in a building upstairs from the street location of the attacks and in which apartment was found weapons like those allegedly used in the attacks. Thus, Roman's statements before the Grand Jury satisfy the first three elements for admission into evidence as a declaration against penal interest under Settles.
Roman's statements do not satisfy the fourth element under Settles. Circumstances independent of his statements establish that they are untrustworthy and unreliable and there are no countervailing independent circumstances which attest to their trustworthiness and reliability. It is true that "[d]eclarations [against penal interest] which exculpate a defendant . . . are subject to a more lenient standard," than those which inculpate a defendant. People v Fonfrias, 204 AD2d 736, 738 (2nd Dep't 1994). However, this does not mean, as defendant implies, that the declaration against penal interest of an unavailable third-party must be admitted into evidence willy-nilly merely because it is offered by the defense.
As the Court of Appeals also said in Settles:
Only when there is other evidence tending to show that the declarant or someone he implicates as his accomplice actually committed a crime, may a declaration against penal interest be said to display the degree of reliability sufficient to overcome the dangers of admitting hearsay evidence. By imposing such a requirement a balance is struck between the interest of defendant to introduce evidence on his own behalf and the compelling interest of the State to preserve the integrity of the fact-finding process in this aspect of criminal prosecutions. . . .
The crucial inquiry [for the court] focuses on the intrinsic trustworthiness of the statement as confirmed by competent evidence independent of the declaration itself.
46 NY2d at 169.
Furthermore, the inquiry must go well beyond the general presumption that a statement which is against the declarant's penal interest is reliable merely "because a person does not ordinarily reveal facts which jeopardize his interests." People v Shortridge, 65 NY2d 309, 312 (1985). A determination of the declaration's admissibility requires an examination of those independent circumstances which attest to its untrustworthiness as well as those which attest to its trustworthiness. "Indeed, certain considerations may be fatal to the reliability of a declaration and thereby render the out-of-court statement inadmissible." Id. at 312-313. These considerations include, for example, that the declarant "offered two different versions of what happened and later absconded" (People v Nicholson, 108 AD2d 929, 930 [2nd Dep't 1985]), the declarant's desire "to exculpate a loved one or inculpate an enemy . . . . , whether he suffers psychological or emotional instability or whether he is a chronic or pathological liar" (People v Shortridge, 65 NY2d at 313). Thus, "[r]egardless of how self-incriminatory a particular declaration against penal interest might be, all or any of the foregoing [considerations] may affect its reliability." Id.
Roman's conviction for perjury in the first degree, based upon his admission by plea of guilty that he knowingly lied to the Grand Jury when he testified that defendant was not present in the area when Donald Trusdale was cut and shot and did not participate in the assaults, is an independent [*6]circumstance which attests that the statements he made during that testimony are untrustworthy and unreliable. Perjury is an "act, of individual dishonesty, or untrustworthiness," and a criminal conviction therefor "will usually have a very material relevance" to the credibility of a convicted perjurer who is called as a witness in a judicial proceeding. People v Sandoval, 34 NY2d 371, 377 (1974). Although the determination of the instant application hinges upon the reliability of Roman's out-of-court statements rather than his credibility as a witness, where, as here, it is clear that the statements themself were perjurious they may be deemed untrustworthy and inadmissible under Settles. Cf. People v Robinson, 89 NY2d 648, 657 (1997) ("Unless perjury is clear, which is not the case here, it is not for the court to determine that certain biases revealed by a witness would, as a matter of law, render testimony untrustworthy when it was adduced under circumstances which bear sufficient indicia of reliability [citing Settles]" [emphasis supplied]). Indeed, it has been held that even the circumstance that the declarant has been charged, but not yet convicted, of perjury "creates a strong inference" that the testimony in which the declaration against penal interest was made "is not clearly trustworthy." United States v Stroble, 962 F. Supp. 1424, 1426 (D. Kansas 1997) (transcript of allegedly perjured testimony of defendant's girlfriend, which she had given at defendant's preliminary hearing, was properly denied admission into evidence at defendant's trial) aff'd 173 F.3d 865 (10th Cir. 1999) cert. denied, Stroble v United States, 528 U.S. 896 (1999). Therefore, the indisputable fact that the statements which defendant seeks to introduce into evidence as a declaration against penal interest were perjurious is an independent circumstance which attests to their untrustworthiness and unreliability and militates against their admission.
There are no countervailing independent circumstances which attest to the trustworthiness and reliability of the statements. Rather, the other evidence presented at the hearings also tends to show that defendant was the perpetrator and that Roman was not and, consequently, that Roman's statements to the contrary are untrustworthy and unreliable. For example, Roman testified that he and Trusdale were combatants in a neighborhood "racial war" that had been ongoing for at least two years before the assaults. Yet, when Roman and defendant were displayed to Trusdale during the same identification procedure at the hospital, Trusdale identified only defendant who is, like Trusdale, African-American, and who was not involved in the "racial war" according to Roman as his assailant and did not identify Roman as even having been involved. Furthermore, Trusdale's aunt also viewed both men during a single identification procedure and identified only defendant as the shooter. Such evidence severely undermines the reliability of Roman's statements. Compare, e.g., People v Fonfrias, 204 AD2d at 737-738 (sufficient indicia of reliability existed where declarant made self-inculpatory statements on four separate and distinct occasions, several witnesses placed declarant at murder scene and other witnesses identified him as the perpetrator);People v Smith, 195 AD2d 112, 122 (1st Dep't 1994) (sufficient independent supporting circumstances shown where, "the testimony of an eyewitness to the crime not only placed the declarant . . . at the scene . . . , but, even more corroboratively, the testimony of [another] eyewitness . . . identified a photograph of [declarant] as one depicting the killer.")
Finally, defendant makes much of the circumstance that the coat found in apartment B7, in the pocket of which was found a sharp metal object, is of a size bigger than defendant might be expected to own or wear. He argues that because the evidence presented at the hearings tends to show that defendant was the shortest of the five men who were arrested in the apartment on January 25, 2006, that circumstance is sufficient supportive evidence to satisfy the fourth element under [*7]Settles. However, no evidence was presented at the hearings as to the identity of the coat's owner, nor that the coat belonged to Roman nor that it did not, in fact, belong to defendant. (And of course, the cutting instrument was not a part of the coat itself.) More to the point, no evidence was presented that, regardless of ownership, Roman had possessed or worn the coat at some point relevant to these proceedings or that defendant had not done so. The mere happenstance that the coat may have been oversized for defendant, without some evidence tending to show that it belonged to or was even worn by Roman, is not a circumstance that attests to the truthfulness and reliability of Roman's statements.
Accordingly, for all of the foregoing reasons, defendant's motion for admission at trial of Roman's Grand Jury testimony as a declaration against penal interest is denied.
The foregoing constitutes the decision and order of the Court.
Dated: Bronx, New YorkE N T E R:
March, 2007
HON. BARBARA F. NEWMAN
Acting Justice of the Supreme Court
Footnotes
Footnote 1:The combined suppression hearing was conducted by this Court on February 7, 2007, February 9, 2007, February 14, 2007, February 15, 2007, February 16, 2007, and concluded on February 21, 2006, on which date defendant's motions were denied in an oral interim decision and order. A full written decision and order with findings of fact and conclusions of law is pending.
Footnote 2:The brief recitation of the circumstances concerning the substance of defendant's statements, the actions of the police and the identification procedures which is included herein have been found as fact by this Court following the combined suppression hearing and will be reiterated as such in the full written decision and order disposing of that hearing.
Footnote 3:The information as to what items were found during the search and where they were found was provided on the record in defendant's presence by the trial assistant for the prosecution during proceedings on February 23, 2006. No evidence of these facts was presented at the combined suppression hearing or the Settles hearing.
Footnote 4:The designation, "CML __," refers to the page number of the transcript of the Grand Jury minutes at which the referenced material may be found.
Footnote 5:Roman is Hispanic and the complainant is African-American.
Footnote 6:The designation, "SH __," refers to the page number of the transcript of the minutes of the Settles Hearing at which the referenced material may be found.