People v. Brown

• Decision Date: 05 September 1995
• Citation: 632 N.Y.S.2d 938,166 Misc.2d 539
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Howard BROWN, Defendant.
• Court: New York Supreme Court

Page 938

632 N.Y.S.2d 938

166 Misc.2d 539

The PEOPLE of the State of New York, Plaintiff, v. Howard BROWN, Defendant.

Supreme Court, Kings County Criminal Term, Part 19.

Sept. 5, 1995.

Charles J. Hynes, District Attorney of Kings County by Alysia Baker, Assistant District Attorney, Brooklyn, for Plaintiff.

Stuart Rubin, Brooklyn, for the Defendant.

HERBERT J. LIPP, Judge.

The defendant is charged with Murder in the Second Degree for the alleged killing of one Abraham Lodge. A Sirois ¹ hearing was ordered by the Honorable Justice Francis X. Egitto and the case was transferred to this Court for said hearing. This decision supplements the oral decision given by this Court at the conclusion of the hearing.

A Sirois hearing is generally granted whenever the People allege specific facts which demonstrate a " 'distinct possibility' ... that a criminal defendant's misconduct has induced a witness' unlawful refusal to testify ... or has caused the witness' disappearance or demise" (Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 415, 460 N.Y.S.2d 591).

At the hearing, the burden of proof is on the People to prove by clear and convincing evidence that the defendant's misconduct caused the unavailability of the witness--in this case, by the death of Desmond Edwards. If the People meet their burden, the witness' previous statement may be admitted at the trial. At the present hearing, two issues arose, the first an issue of law, the second of fact:

(1) To date, the reported decisions of New York courts all involved the admissibility of previous Grand Jury testimony; do the same principles apply to other kinds of statements, such as, in this case, a sworn audiotaped statement;

(2) Have the People met their burden of proof?

FINDINGS OF FACT

Detective John Guinane was assigned to investigate the murders of both Abraham Lodge in 1991 and Desmond Edwards in 1993. His testimony at the hearing was candid, credible and reliable. On August 6, 1991, he spoke to a number of witnesses, including Desmond Edwards. Detective Guinane knew Mr. Edwards to be a police informant who had provided accurate information for about one year. After the interview by Detective Guinane, Detectives Turner and Regina conducted a more complete interview of Mr. Edwards.

At 5:00 PM, on August 6, 1991, at the Kings County District Attorney's Office, Assistant District Attorney Terry Winston taped a sworn statement by Mr. Edwards in which the latter implicated the defendant in the shooting death of Abraham Lodge.

On January 2, 1993, Desmond Edwards and Ronald Johnson were patronizing a bar located on Rogers Avenue, in Brooklyn. At some point, Mr. Edwards was asked to go outside the bar, in an apparent ruse to separate him from Mr. Johnson. Once outside, Mr. Edwards was fatally shot four to five times by bullets fired from a Tech-9 pistol.

The defendant was indicted in 1994 for the murder of Abraham Lodge.

In 1995, Detective Guinane was informed that an inmate at Rikers Island, Kevin Jennings, had information regarding the killing of Desmond Edwards. Detective Guinane and Assistant District Attorney Alysia Baker met with Mr. Jennings on three separate occasions.

During the course of these interviews, Mr. Jennings described in great detail what he had allegedly learned from the defendant at Rikers Island regarding the death of Desmond Edwards. In summary, Mr. Jennings informed Detective Guinane and Ms. Baker that the defendant allegedly contacted an individual he knew and ordered that individual to kill Desmond Edwards. Despite claiming that he was assisting the defendant in some legal matters, Mr. Jennings never gave Detective Guinane any documents to corroborate his alleged discussions with the defendant.

Detective Guinane verified that both the defendant and Kevin Jennings were incarcerated in the same facility and had the ability to communicate with each other. Detective Guinane never disclosed to Mr. Jennings any of the details of the Lodge and Edwards homicides or any of the contents of Mr. Edwards' audiotape.

During his testimony, Detective Guinane candidly admitted that the only credible information he has relative to the defendant's role in the death of Desmond Edwards is the information furnished to him by Kevin Jennings. Detective Guinane had heard rumors and has investigated possible leads relating to Desmond Edwards' killing, but he has not produced sufficient evidence to charge anyone, even the defendant, with the death of Desmond Edwards.

Kevin Jennings was the People's main witness at the Sirois hearing. Mr. Jennings is currently incarcerated on a burglary charge for criminally impersonating a cable employee in order to gain access to the victim's home. Mr. Jennings also is being held for violating the terms of his parole on a prior gun conviction and concedes he has been convicted on several occasions for "sucking tokens" out of Transit Authority turnstiles. Defendant admits having a number of prior bench warrants and manipulating the legal system to obtain a "package deal" upon a subsequent arrest and the execution of the outstanding bench warrant (Transcript of Kevin Jennings, at 45).

Mr. Jennings testified that he and the defendant were previously incarcerated at the Otis Barum Correctional Center at Rikers Island. Mr. Jennings was housed at 1 West, Cell 3; the defendant was housed at 1 West, Cell 49. Although Mr. Jennings had never previously met the defendant, in March of 1995, the defendant allegedly approached Mr. Jennings and asked him if he would assist the defendant in writing a letter to defendant's lawyer attacking the credibility of Ronald Johnson, a witness who had previously identified the defendant in a police lineup. The defendant allegedly described Mr. Johnson as the brother of another individual named "Desmond." The defendant allegedly informed Mr. Jennings that in June or July of 1992, Desmond had testified against the defendant in the Grand Jury. Defendant believed Desmond was the only witness who could have testified against him. Shortly thereafter, in September of 1992, detectives had come to defendant's residence seeking to question him. Thereafter, a search warrant was obtained and around December of 1992 the police returned with an arrest warrant for the defendant.

According to Jennings, the defendant also informed him that on January 2, 1993, Desmond was at a nightclub on Rogers Avenue, in Brooklyn. There came a time that evening when Desmond was called outside of the bar by another individual. Once outside, an individual named "Shorty", who was wearing a hood on his head, shot Desmond several times with a Tech-9 pistol. "Shorty" then returned to the defendant's home and informed him of the details of the killing.

Mr. Jennings testified that in January of 1993 he was incarcerated at the Oneida Correctional Facility, in Rome, New York; except for a three-month period in the spring of 1990 he was continuously incarcerated at Oneida Correctional Facility from January of 1989 until January of 1994. Mr. Jennings testified that he had no prior knowledge of either Desmond Edwards or Abraham Lodge, had never been to the vicinity of Rogers Avenue, in Brooklyn, and never saw any police paperwork regarding the Desmond Edwards killing. Mr. Jennings did, however, review defendant's copies of certain police reports detailing the death of Abraham Lodge, which the defendant showed Jennings during the course of their conversations together.

Mr. Jennings stated that in return for his testimony at the Sirois hearing and at defendant's subsequent murder trial, Detective Guinane had agreed to testify before the Parole Board on defendant's behalf and inform the Parole Board of defendant's cooperation in this matter. Assistant District Attorney Baker, who interviewed Mr. Jennings and who represented the Kings County District Attorney's Office at this hearing, also agreed that in exchange for Mr. Jennings' cooperation she would write a favorable letter to the Parole Board on Mr. Jennings' behalf.

CONCLUSIONS OF LAW

The People seek to introduce into evidence, at defendant's murder trial, a sworn audiotaped statement made by Desmond Edwards to Assistant District Attorney Terry Winston and Detective Guinane. For such evidence to be admitted for the truth of the matter asserted, two barriers must be overcome: the law prohibiting the use of hearsay and the Constitution's Confrontation Clause.

It is axiomatic that the audiotaped statement of the late Desmond Edwards is hearsay because it is an extrajudicial declaration offered to prove the truth of the matter asserted (Fisch, New York Evidence, § 756 et seq. [Lond 2nd ed]; Richardson, Evidence § 200 et seq. [Prince 10th ed]; Fed.R.Evid. rule 801(c)). Thus, the audiotape is inadmissible as evidence unless an exception to the hearsay rule applies (see, Fed.R.Evid. rule 802) or if it has "sufficient indicia of reliability" to permit its admission at trial (United States v. Thevis, 665 F.2d 616, 633, n 17, cert denied sub nom. 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61; United States v. Cheramie, 51 F.3d 538; People v. Small, 177 A.D.2d 669, 670, 576 N.Y.S.2d 595, lv. denied 79 N.Y.2d 953, 583 N.Y.S.2d 207, 592 N.E.2d 815; People v. Sweeper, 122 Misc.2d 386, 394, 471 N.Y.S.2d 486). Unlike Federal Rule 804(b)(5), in New York there is no residual, or "catch-all", exception to the hearsay rule which admits hearsay statements provided they have sufficient "indicia of reliability".

Under Criminal Procedure Law 670.10, the admissibility of prior testimony of a witness is limited to three specifically enumerated categories. Prior testimony will be admitted only when the witness is "unavailable" and only when the testimony occurred at: "(a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint ... or (c) an examination of such witness conditionally ..." (CPL 670.10[1]. Appellate Courts have strictly construed this statute and have limited its...