People v. Banks

• Decision Date: 07 December 1989
• Citation: 551 N.Y.S.2d 1011,146 Misc.2d 601
• Parties: The PEOPLE of the State of New York v. Earl BANKS, Defendant.
• Court: New York Supreme Court

Page 1011

551 N.Y.S.2d 1011

146 Misc.2d 601

The PEOPLE of the State of New York v. Earl BANKS, Defendant.

Supreme Court, Kings County,

Criminal Term, Part 8.

Dec. 7, 1989.

Elizabeth Holtzman, Dist. Atty., Kings County by Thomas Merrill, for the people.

Allen Brenner, for defendant.

CAESAR CIRIGLIANO, Justice.

The defendant, Earl Banks, has been charged with murder in the second degree. The People allege that the defendant was involved in the murder of an eyewitness to this crime and seek, under the principles established in United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982), on remand 722 F.2d 13, cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343 (1984) and Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dept.1983), to introduce the witness' grand jury testimony at the defendant's trial on the ground that the defendant by his own misconduct waived his right to confront this witness. The witness's grand jury testimony is admissible only if the People prove the defendant's complicity in the murder of this witness by clear and convincing evidence. United States v. Thevis, 665 F.2d 616 (5th Cir.1982), cert. denied sub nom. Evans v. United States, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303; Matter of Holtzman v. Hellenbrand, supra, 92 A.D.2d 405, 460 N.Y.S.2d 591.

Courts have imposed the stringent burden of proof by clear and convincing evidence recognizing that the receipt of an unavailable witness's grand jury testimony deprives the defendant of his constitutional right to confront the witness and places potentially unreliable hearsay testimony before the jury. Here, in order to decide whether such testimony is admissible, I must assess the sufficiency of the wholly circumstantial evidence adduced by the People in support of the conclusion that the defendant was involved in the murder of this witness.

This case thus presents a question of first impression because it has not yet been decided whether the well-settled standard for measuring the sufficiency of circumstantial evidence must be applied in the Mastrangelo-Hellenbrand context where the burden of proof is by clear and convincing evidence rather than by proof beyond a reasonable doubt.

In deciding this issue, I am well aware of the substantial interests at stake on both sides. If this testimony is admitted, the defendant will be deprived of his Sixth Amendment right to confront a crucial witness against him. Further, hearsay testimony, with its inherent deficiencies, will be placed before the jury that is to decide the ultimate question of guilt or innocence. On the other hand, if this evidence is excluded, the People's ability to proceed with this murder prosecution may well be seriously compromised.

Moreover, my determination here must rest exclusively on circumstantial evidence. As discussed more thoroughly below, the same standard for assessing the sufficiency of wholly circumstantial evidence is used in civil cases as well as in criminal cases. In criminal cases, where the burden of proof is beyond a reasonable doubt, the circumstantial evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence. In civil cases, where the burden of proof is by a preponderance of the evidence, the circumstantial evidence must fairly and reasonably exclude other reasonable hypotheses.

Balancing these considerations, I hold that the People, coextensive with their burden of proving the defendant's complicity in the murder of the witness by clear and convincing evidence, must demonstrate that the circumstances logically and reasonably lead to but one conclusion--that the defendant was involved in the murder of the witness--and clearly and convincingly exclude any reasonable hypothesis to the contrary. I conclude that this standard has not been met in this case and therefore the grand jury testimony of the witness will not be admitted.

The Facts

The following circumstantial facts were established by credible, direct evidence. ^* On December 20, 1988, Oscar Brown testified before a grand jury in connection with a shooting that occurred on December 14, 1988. Oscar Brown was the only civilian witness to testify before the Grand Jury. He provided an eyewitness account of the murder of a man he knew as Ralph by an individual who he described as a security guard, but who was not wearing a uniform.

Beginning in the latter part of April of 1989 and continuing until June 6, 1989, Oscar Brown's mother, Delores Brown, received weekly telephone calls from a man who identified himself as "Ali".

Mrs. Brown testified that "the substance of the calls were about this person that was in jail, Banks, about that he was supposedly was put in the building as a security guard and that he had children that he was trying to support, was holding down two jobs, and that they didn't feel, whoever they were, that this Ali, that he should be in jail" (Hearing, p. 5). She was told that her son's grand jury testimony "had this guy in jail and they didn't feel he should be in jail." Id. at p. 7.

Ali asked Delores Brown to speak with her son and persuade him to change his testimony or not testify. Ali also asked her to testify on Banks' behalf and say that her son was a drug addict and that he had not seen what he claimed to have seen. On one occasion, the caller told her that he was calling for Ali. He asked her to call Ali if she were able to get in touch with her son and persuade him not to testify. He gave her an eight digit telephone number. The first three digits of that number would have placed it in the 914 calling area. During this time, the defendant, who was also known by the names of Ali Kuhi and Mustapha, was confined to a city correctional facility.

Each time Mrs. Brown received one of these calls, she told the callers that she had not seen her son. The callers did not threaten her in any way and did not threaten her son. She told the police and the District Attorney's office about these calls only after her son was killed.

Mrs. Brown spoke with her son approximately a week before his death and told him about Ali's calls. Brown said that he was not about to forget what he saw and that he intended to testify at the trial when the time came.

On June 7, 1989, Oscar Brown's body was found in front of 723 Van Sinderen Avenue, on a street described as a deserted, "oversized alley", adjacent to an L train station. He had been shot 16 times and sustained a shot gun blast as well as bullet wounds.

Mrs. Brown told the officers who investigated his death that Oscar Brown had been "living in the streets because of his drug involvement and refusal to seek help and family guidance." (Hearing Minutes, p. 31). Three years before, Oscar Brown had been shot by a drug dealer to whom he had owed money. That drug dealer died in a pipe bomb blast three years ago.

When the officer investigating Brown's death learned that he was a witness in a pending homicide case, he attempted to contact other witnesses to this homicide. He spoke to the mother of another potential witness who informed him that her son and his family had moved to Baltimore after her son was shot on December 26, 1988. She refused to provide the police with his location.

The Standard of Proof

If the People are able to establish by clear and convincing evidence that Oscar Brown's silence was procured through the misconduct of the defendant, the defendant "cannot then assert his confrontation clause rights in order to prevent [Oscar Brown's] prior grand jury testimony ... from being admitted against him." Matter of Holtzman v. Hellenbrand, supra, 92 A.D.2d at 412-413, 415, 460 N.Y.S.2d 591. See also United States v. Mastrangelo, supra, 693 F.2d 269; United States v. Thevis, supra, 665 F.2d 616; People v. Hamilton, 127 A.D.2d 691, 511 N.Y.S.2d 912 (2d Dept.1987) aff'd 70 N.Y.2d 987, 526 N.Y.S.2d 421, 521 N.E.2d 428 (1988); People v. Sweeper, 122 Misc.2d 386, 471 N.Y.S.2d 486 (Sup.Court, N.Y.Co.1984).

In Thevis, the Court held that "because confrontation rights are so integral to the accuracy of the fact-finding process and the search for truth ... clear and convincing evidence of a waiver of this right [is required]. 665 F.2d at 631. In Hellenbrand, the Second Department held that "in view of the mandate of our State Legislature to exclude the use of the witness' Grand Jury testimony as direct evidence in a criminal trial due to its hearsay quality, the clear and convincing test is ... appropriate." 92 A.D.2d at 415, 460 N.Y.S.2d 591.

Here, the People have adduced wholly circumstantial evidence in order to meet their burden of proving by clear and convincing evidence, the defendant's complicity in the murder of this witness.

The well-settled standard of proof in both civil and criminal cases where the evidence is wholly circumstantial is that the inference sought to be established must be the only one that can fairly and reasonably be drawn from the facts and the facts must exclude every reasonable hypothesis to the contrary. See People v. Giuliano, 65 N.Y.2d 766, 768, 492 N.Y.S.2d 939, 482 N.E.2d 557 (1985); People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228 (1984); People v. Way, 59 N.Y.2d 361, 365, 465 N.Y.S.2d 853, 452 N.E.2d 1181 (1983); People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334 (1974); Feblot v. New York Times Co., 32 N.Y.2d 486, 495, 346 N.Y.S.2d 256, 299 N.E.2d 672 (1973); People v. Cleague, 22 N.Y.2d 363, 292 N.Y.S.2d 861, 239 N.E.2d 617 (1968); Manley v. N.Y. Tel. Co., 303 N.Y. 18, 100 N.E.2d 113 (1951); People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785 (1943); Ruppert v. Brooklyn Heights R.R. Co., 154 N.Y. 90, 47 N.E. 971 (1897); Boyce Motor Lines v. State of New York, 280 App.Div. 693, 696, 117 N.Y.S.2d 289 (3rd Dept.1952) aff'd 306 N.Y. 801, 118 N.E.2d 819 (1954).

This exacting standard for measuring the sufficiency of circumstantial evidence has been employed in both civil and criminal ca...