People v. Barnes

• Decision Date: 12 July 1985
• Parties: PEOPLE of the State of New York, Respondent, v. Larry BARNES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 864

491 N.Y.S.2d 864

109 A.D.2d 179

PEOPLE of the State of New York, Respondent, v. Larry BARNES, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 12, 1985.

Rose H. Sconiers, Buffalo (Charles Halvorsen, Buffalo, of counsel), for appellant.

Richard J. Arcara, Dist. Atty., Buffalo (J. Michael Marion, Buffalo, of counsel), for respondent.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, GREEN and SCHNEPP, JJ.

HANCOCK, Justice:

After his second jury trial on charges stemming from a stabbing death in Buffalo, defendant was convicted of felony murder, robbery first degree and criminal possession of a weapon fourth degree. He was acquitted of intentional murder. The first trial had ended in a hung jury. Of several contentions raised on appeal, we address one which, in our opinion, requires a reversal and a new trial: that the court erred in excluding the testimony of a disinterested defense witness, April Edwards, concerning her observations--made about the time of the crime--of a man not resembling defendant running from the vicinity of the stabbing carrying a knife. The People, citing People v. Johnson, 47 N.Y.2d 785, 787, 417 N.Y.S.2d 925, 391 N.E.2d 1006, cert. den. 444 U.S. 857, 100 S.Ct. 116, 62 L.Ed.2d 75, argue that the court properly exercised its discretion in refusing the offer of proof as speculative because of the proof's assertedly tenuous connection with the crime. Defendant, however, contends that the testimony was relevant as proof of an exculpatory hypothesis for the crime as an alternative to the theory advanced by the People and also as proof supporting his own testimony, and, he argues, the court's exclusion of it deprived him of a fair trial. A discussion of these contentions requires a detailed examination of the evidence against defendant and of defendant's testimony and the offered proof which was excluded.

I

At 6:38 p.m., on October 4, 1980, police arrived at the scene of a robbery and homicide near Chippewa and Pearl Streets in Buffalo. Someone had robbed Terrence Mills and stabbed him in the left chest with a knife. Mills died from loss of blood. The chief witnesses to the events surrounding the crime were four young men: defendant, Larry Barnes, then age 19, Emmett Boyd, Mitchell Edwards and Melvin Speaks, then ages 19, 17 and 22, respectively. The four were well acquainted and defendant and Speaks shared an apartment at 1711 Main Street. In their trial testimony, all agreed that they were together at various times on October 14. There was agreement on little else. Boyd and Edwards testified against defendant as eyewitnesses to the crime and Speaks testified to incriminating statements made by defendant and to his possession of the fruits of the crime and the knife he allegedly used. Defendant denied participation in the crime and testified to inculpatory declarations by the other three.

According to their testimony, Boyd and Edwards, who had not been together on the day of the crime, arrived simultaneously at different vantage points near Pearl and Chippewa Streets where they were able to observe defendant's actions and hear what he said. Boyd saw defendant talking to a man and heard defendant say, "Give me your money." The man responded, "This is all I have." Boyd then saw defendant stab the man in the chest. Edwards testified that he saw defendant walk up to a man and heard him ask him for money. The man replied that he had only $27 or $28 and gave defendant his wallet. Defendant, according to Edwards, then stabbed the man in the chest.

Boyd testified that on that afternoon he had been drinking rum and beer with defendant at the apartment on Main Street before he and defendant left for downtown on foot so that defendant could sell a sweater. As they neared the intersection of Pearl and Chippewa Streets, defendant speeded up and disappeared around the corner on Pearl ahead of Boyd. Just as he turned the corner, Boyd witnessed the events he described. After the stabbing Boyd ran behind defendant in the direction of the Statler Hotel and, after losing sight of him, returned to the scene. The victim was dead. Boyd lied to police and reporters to protect defendant (who is black, very tall, and nicknamed "Too Tall"), telling them that the man who killed the victim was a short white man.

Edwards testified that in the late afternoon of October 14 he met a woman named Kim who drove him to the Pearl-Chippewa Street area to get a pizza. When they got out of the car Edwards saw defendant and--about 20 feet behind him--Boyd. He "called to them" but they did not answer. After witnessing the stabbing Edwards got back in the car and Kim drove him to his mother's home on Lafayette Street where he lived. Shortly thereafter, alone and on an errand for his mother to pick up a prescription, he met up with defendant on Lafayette Street. Defendant was in the act of "going through a wallet" and ripping up papers and throwing them on the ground. Edwards joined him and the two proceeded together to a liquor store, a pizza shop where they placed an order for pizza, and to the pharmacy (the pharmacist testified that Edwards picked up the prescription at about 7:00 p.m.). After stopping to pick up the pizza and dropping off the prescription at Edward's mother's house, they went directly to the Main Street apartment, which defendant unlocked with a key which he had. The next day Edwards told police that he knew nothing about the stabbing. On the following day police arrested Edwards and he, apparently fearing that he would be charged with the murder, gave a statement consistent with his trial testimony. He testified that while defendant was rifling the wallet he had picked up Mills' Blue Cross card and that he burned it the day following.

Speaks said that he was at the Main Street apartment until 6:00 or 6:15 on the day of the crime when he went to the home of a girlfriend and fell asleep. At 7:30 he woke up when defendant arrived. Defendant told him that he had mugged someone and asked for the key to the apartment on Main Street. When Speaks returned to the apartment at about 8:00 p.m., defendant and Edwards were already there, and Boyd arrived a short time later. Defendant, who was playing with a knife, announced that he had stabbed someone. He showed the others credit cards bearing the name Terrence Mills, some of which Speaks took and, later, threw into a storm drain. Defendant, Speaks said, threw the knife into a storm drain the next day. Boyd and Edwards also testified that while at the apartment defendant was playing with a knife and made statements admitting the stabbing.

It is evident that the testimony of the three main prosecution witnesses is not free from doubt. There are inconsistencies. For example, Speaks said that defendant came to Speaks' girlfriend's house at 7:30 to get the key to the Main Street apartment from Speaks. Edwards on the other hand, said that he was with defendant from sometime before 7:00, that they went to the pharmacy, pizza shop, liquor store, and Edwards' house, that they then, without stopping anywhere else, went to the Main Street apartment, and that defendant used a key which he had to unlock it. Also, while Edwards said that he saw Boyd and defendant at the scene of the crime and was close enough to hear what defendant said to Mills, Boyd, who was also close enough to hear the exchange between defendant and Mills, said that he never saw Edwards. The testimony of all three is contrary to statements given on other occasions: Boyd at first gave police a false description of the killer; Edwards in his first account to police said that he knew nothing about the crime; and Speaks told the grand jury that defendant had told him that Edwards held the victim during the crime.

While perhaps not legally accomplices, all three were implicated to some degree in the crime and had motives to lay the blame on defendant. Edwards and Speaks both admittedly destroyed or concealed evidence. Boyd and Edwards were present at the scene and both were arrested after the crime. Boyd said that he "struck a deal" with the prosecution that felony charges against him arising from the initial false statement would be dropped if he testified against defendant. And, Edwards testified, it was not until police arrested him and told him "to tell the truth or * * * [he] was going to get into trouble" that he gave them the statement accusing defendant of the murder.

In his testimony at the first trial, which was read into evidence, defendant stated that on October 14 he was with Boyd, Edwards and Speaks in the area of Chippewa Street. When the others began to talk about robbing someone, defendant left and went to the apartment on Main Street to sleep. He woke up later when he heard Speaks and Edwards talking loudly in the next room saying "something about they shouldn't have ripped this guy off, and what happened to Emmett [Boyd]." Boyd came in a few minutes later and asked the other two why they had left him. He said that "the guy had died downtown".

The excluded evidence in issue was the testimony of April Edwards, a disinterested witness and no relation to Mitchell Edwards. As an offer of proof defense counsel read into the record the statement she had given to the police on the day of the murder. ¹ In it she said that she left her hotel room at about 6:05 p.m. to go to the submarine and pizza shop on Pearl Street near Chippewa. When she got there she started to get coffee but discovered that she didn't have enough change. She went back outside and "waited on the corner of the Sub Shop". She was "just standing there" when suddenly a black man with a knife in his hand "came running after [her]"; she ran back to her hotel. A short while later from her hotel room window she saw police cars and ambulances and went downstairs where she learned that someone had been stabbed. The man who had "run after" her was thin and five feet six inches tall. Defense counsel pointed...