People v. Dubarry
| Decision Date | 07 April 2015 |
| Citation | 8 N.Y.S.3d 624,25 N.Y.3d 161,31 N.E.3d 86,2015 N.Y. Slip Op. 02865 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Darius DUBARRY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appellate Advocates, New York City (Denise A. Corsi and Lynn W.L. Fahey of counsel), and Darius Dubarry, pro se, for Darius Dubarry, appellant.
Kenneth P. Thompson, District Attorney, Brooklyn (Thomas M. Ross and Leonard Joblove of counsel), for respondent.
This appeal presents the novel question of whether defendant may be subject to multiple liability for a single homicide under a “ transferred intent” theory, where defendant kills one victim in the course of attempting to kill someone else. We conclude that defendant cannot be convicted of depraved indifference murder and intentional murder on a transferred intent theory in a case involving the death of the same person. Therefore, the trial court erroneously submitted to the jury both charges in the conjunctive rather than in the alternative. We also hold that admission into evidence of certain grand jury statements of a non-testifying witness violated defendant's Sixth Amendment right to confrontation. The Appellate Division order should be modified, and a new trial ordered on the intentional murder, depraved indifference murder, and attempted murder counts.
The underlying criminal prosecution of defendant Darius Dubarry stems from the fatal shooting of a bystander during a gunfight between defendant and codefendant Herburtho Benjamin. At trial, defendant admitted shooting at Benjamin, but claimed Benjamin was the aggressor and that defendant acted in self-defense.
According to the testimony presented by the People, Benjamin and approximately 10 men went to a residential building in Brooklyn, New York, looking for someone who had previously assaulted one of the men. While they were standing inside the lobby they saw defendant walk down the staircase. Defendant, a member of the Lek Lekah Israelites, had just left Sabbath services when he, in turn, saw the men. After defendant walked by, someone in the group said, “That's him.” Benjamin and the others then followed defendant outside, and dispersed on the street.
Several of the men in the group testified that once outside they saw defendant in front of the building, and observed defendant and Benjamin pull out guns and shoot at one another. The People also submitted videotape footage from the building depicting the shootout and defendant extending his arm to fire a gun before he reentered the building. The forensic evidence established that one of the bullets fired by defendant fatally struck the victim, who was uninvolved in the events and innocently standing a few buildings away from the shooting.
Soon after the shooting, defendant left the scene, and approximately a week later the investigating detectives located him listed under an assumed name in a hotel in Georgia. Defendant was taken to a local sheriff's office where he waived his Miranda rights and provided oral and written statements to the New York detectives. In these statements defendant explained that on the day of the shooting he was leaving services when he saw several men in the lobby. The men then followed him outside where he was confronted by Benjamin who pointed a gun at him. Defendant claimed he heard a click, and then a shot. Defendant then shot back at Benjamin and ran into the building.
In addition to this evidence, the People sought to present eyewitness testimony of one of the building's residents who had previously testified before the grand jury that he saw defendant fire the initial shot at Benjamin. However, during the course of the trial the witness refused to testify because of threats against his family. Outside of the jury's presence the court held a Sirois hearing to determine whether defendant procured the witness's refusal by threats or violence.1
At the hearing, the witness recounted how just the day before, his brother and sister visited him and told him that they were “getting hostility around the neighborhood” because he “was making a statement against the defendants.” Specifically, his brother told him that the Israelites thought the witness was a “snitch.” His sister similarly informed him that someone had told her that the Israelites suspected the witness of snitching and that the Israelites were “serious.” The witness stated that his siblings' demeanor during the visit indicated to him that these were indeed threats.
The witness further informed the court that he was fearful because his family still lived in the neighborhood where the shooting occurred, and he thought his brother and sister would be hurt if he testified. He also said that he had not told anyone that he had cooperated and he did not even know until that day that the People intended to call him at trial. In response to the court's question, the witness, who was incarcerated in a federal detention center on an unrelated matter, claimed that even if held in contempt, and additional time was added to his sentence, he would not testify against defendant.
Based on this testimony the court concluded that “these threats have been made, that the witness believes that if he does testify concerning the events ... his family is in harm's way and that his refusal to testify is based upon these threats and these threats solely.” The court also determined that it could not compel the witness to testify because he was serving a federal sentence. The court then recalled the jurors, and over defendant's objection, allowed the prosecutor to read the witness's grand jury testimony into evidence.
According to that testimony, on the day of the shooting the witness looked out the window of his fifth floor apartment and saw defendant and a group of people walk out of the building. He saw defendant start smoking a cigarette, walk down two steps and then start shooting. The witness stepped back from the window. A few minutes later he again looked out, and this time observed defendant exit the building with one of the Israelites, and then enter a car and drive away. The witness stated that he had seen defendant every week in the building and recognized him as someone who attended the Israelites' services.
Defendant testified on his own behalf, and claimed that Benjamin shot first and for no apparent reason. He explained that he had come into possession of the gun that he used to shoot at Benjamin from a male member of the Israelites' congregation. He stated that on the day of the shooting he was escorting several female members from the services when this member told defendant he was going to handle a problem and showed defendant the gun. Defendant told him to “chill out,” took the gun, and said that they would dispose of it when defendant returned from escorting the women out of the building.
Once downstairs defendant saw the men in the lobby and recognized one of them as a resident from the building. He claimed that he was in front of the building smoking a cigarette when the men followed him outside, and as he turned to reenter the building he heard someone say When he turned around again he saw Benjamin pointing a gun at him. He claimed he did not know Benjamin and that he froze when he saw the gun. According to defendant, Benjamin pulled the trigger twice, but the gun failed to fire. When Benjamin fired again defendant fired several shots back.
Defendant further testified that he had never handled a gun before the shooting, and did not know what he did with it afterwards. Defendant described how after the gunfight he returned to the apartment where services had been held, and stayed there until he subsequently drove away. Two days later he went to Georgia, out of fear of Benjamin and others in the group who defendant believed were gang members, and so his family would have time to retain counsel. He further claimed that the statements made to the detective in Georgia were coerced.
As relevant to this appeal, at the pre-charge conference and later during discussion of the verdict sheet, the trial court stated that the intentional murder and depraved indifference murder were separate crimes and that the jury had to consider both. Defense counsel also argued during the pre-charge conference that the evidence was insufficient to establish depraved indifference murder based on defendant engaging in mutual combat with Benjamin.
The court thereafter submitted to the jury in the conjunctive depraved indifference murder and intentional murder on a transferred intent theory. In other words, the court instructed the jury to consider depraved indifference murder and, irrespective of its verdict on that count, to then consider intentional murder. Also, the court's instructions on depraved indifference murder required the jury to find, beyond a reasonable doubt, that defendant and Benjamin engaged in mutual combat. The court charged as lesser included offenses to the murder counts first- and second-degree manslaughter. The court also charged the jury on attempted murder in the second degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree. The court charged the defense of justification with respect to intentional murder in the second degree, manslaughter in the first degree, attempted murder in the second degree, and attempted assault in the first degree.
The jury returned guilty verdicts on depraved indifference murder (Penal Law § 125.25[2] ), intentional murder on a transferred intent theory (Penal Law § 125.25[1] ), attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), and criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ). Defendant appealed.
The Appellate Division affirmed (People v. Dubarry, 107 A.D.3d 822, 967 N.Y.S.2d 132 [2d Dept.2013] ). The Court found the case involved more than one potential victim, thus permitting defendant's convictions on the murder...
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