People v. Duncan

• Decision Date: 07 December 1978
• Citation: 46 N.Y.2d 74,385 N.E.2d 572,412 N.Y.S.2d 833
• Parties: , 385 N.E.2d 572 The PEOPLE of the State of New York, Respondent, v. Ivan DUNCAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 833

412 N.Y.S.2d 833

46 N.Y.2d 74, 385 N.E.2d 572

The PEOPLE of the State of New York, Respondent, v. Ivan DUNCAN, Appellant.

Court of Appeals of New York.

Dec. 7, 1978.

Bennett M. Epstein, Brooklyn, for appellant

Carl A. Vergari, Dist. Atty. (Janet Cunard, White Plains, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Judge.

On the morning of September 25, 1974, police officers arrived at an apartment in the City of Mount Vernon and encountered a horrifying scene. Two elderly women, their corpses riddled with stab wounds, lay dead on the bedroom floor. Robbery appeared to have been the underlying motive. The apartment itself was in complete disarray, with papers, clothing and women's hand bags scattered about, blood splattered on the walls and floor and prints from bloodied men's sneakers in the bedroom and bathroom. A preliminary investigation unveiled the defendant and his common-law wife Ziriphia Mayhew, the niece of one of the victims, as suspects in the crime.

As the inquiry proceeded, it became apparent that defendant and Mayhew were indeed involved in the events of the prior evening. In return for a grant of immunity, Mayhew implicated defendant to such an extent that he was soon indicted and tried for two counts of intentional murder (Penal Law, § 125.25, subd. 1), two counts of felony murder (Penal Law, § 125.25, subd. 3), one count of attempted robbery in the first degree (Penal Law, § 160.15, subd. 1) and four counts of criminal possession of a weapon in the fourth degree (Penal Law, § 265.01, subd. (2)).

At trial, the most damaging incriminating evidence was supplied by Mayhew's testimony. It had previously been established that on prior occasions the two had discussed the means whereby they could separate Mayhew's aunt from her money. Indeed, on one occasion defendant had stated in the presence of Mayhew and a third person that they would "have to hurt her to get it." On the night of September 24, 1974, defendant put his plan into action.

According to Mayhew, after stating that she was going to retrieve some personal items at her aunt's apartment, defendant asked to accompany her so that he could "get some scratch money." On the way to their destination, defendant stopped off at a friend's apartment and borrowed a hammer. Upon arriving at the victim's apartment, the couple was surprised to see that Mayhew's aunt had guests. They stayed only a few minutes, during which time defendant surreptitiously entered the bedroom and searched for cash. His quest proved unsuccessful, however, and the couple journeyed elsewhere, waiting for the guests to depart.

Later that evening, Mayhew and defendant returned to her aunt's apartment and noticed that the visitors' car was no longer in sight. Defendant told Mayhew that he intended to "rip off" her aunt and kill the two elderly women. When Mayhew sat in silence, defendant punched her in the chest and she agreed to accompany him into the apartment. Mayhew testified that she watched terror stricken as defendant savagely murdered the two women, first striking them with the hammer and later repeatedly stabbing them, after his efforts to extract money proved unsuccessful. The couple then drove home, where defendant laundered his bloodstained clothes and sneakers, after first disposing of the murder weapons in a nearby sewer.

As might be expected, defendant's version of the events of that night tended to significantly downplay his role in the crimes. Testifying on his own behalf, defendant claimed that he had waited in the car while Mayhew went to the apartment to ask her aunt for money. After waiting over one-half hour for her return, defendant went upstairs and knocked on the apartment door. Some time later, the door opened and defendant encountered Mayhew in a state of shock, the bloodied bodies of the two women lying on the bedroom floor. Upon seeing the bodies, defendant testified, he asked Mayhew what had happened and received a response that there had been an altercation. Mayhew prevented him from summoning assistance and disposed of the weapons on their way home.

As the testimony unfolded, it became apparent that under either version of the relevant testimony, Mayhew was no mere witness to the crime. Under any view of the evidence, Mayhew participated in the events of that night to such an extent that she could have been prosecuted for the underlying offenses but for her grant of immunity. She was, at the very least, an accomplice to the crimes for which defendant was charged (CPL 60.22, subd. 2; see People v. Dlugash, 41 N.Y.2d 725, 731, 395 N.Y.S.2d 419, 423, 363 N.E.2d 1155, 1158; People v. Beaudet, 32 N.Y.2d 371, 376, 345 N.Y.S.2d 495, 499, 298 N.E.2d 647, 649). Being such, her testimony took on a special significance.

The law looks upon accomplice testimony with a suspicious eye. Especially when traded for immunity from prosecution, such evidence must be scrutinized with the utmost caution and circumspection because, while such testimony is certainly competent, it lacks the inherent reliability attached to the testimony of a disinterested witness. To compensate for its untrustworthy nature and to insure the rights of the defendant, accomplice testimony, standing alone, is insufficient to sustain a criminal conviction (People v. Kress, 284 N.Y. 452, 460, 31 N.E.2d 898, 902). Thus, where the undisputed evidence establishes a witness as an accomplice, the jury must be so instructed and charged that the witness' testimony must be corroborated by independent evidence materially connecting defendant with the commission of the crime (People v. Basch, 36 N.Y.2d 154, 159, 365 N.Y.S.2d 836, 840, 325 N.E.2d 156, 159; People v. Ohlstein, 54 A.D.2d 109, 387 N.Y.S.2d 860, affd. 44 N.Y.2d 896, 407 N.Y.S.2d 696, 379 N.E.2d 222; CPL 60.22, subd. 1).

While the jury did receive proper instructions with respect to the nature and corroboration requirements of Mayhew's accomplice testimony, the court neglected to give instructions with respect to the nature of accessorial liability (Penal Law, § 20.00). The jury at this point was understandably confused and requested supplemental instructions as to "the element of guilt between partners in crime." Counsel for defendant, while raising no objection to giving these supplemental instructions, did request, for the first time, that they be given in conjunction with a charge of criminal facilitation in both the first and second degrees (Penal Law, §§ 115.00, 115.05). The court, however, only instructed the jury with respect to the implications of accessorial liability.

We find no error in either the supplemental charge or the refusal to charge criminal facilitation upon defendant's belated request. At any time the jury, during its deliberations, requests additional instructions concerning the law or the evidence, it is incumbent upon the court to give such instructions (People v. Jackson, ...