People v. Ford

• Decision Date: 26 November 1985
• Citation: 497 N.Y.S.2d 637,488 N.E.2d 458,66 N.Y.2d 428
• Parties: , 488 N.E.2d 458 The PEOPLE of the State of New York, Respondent, v. Derwyn FORD, Appellant. The PEOPLE of the State of New York, Respondent, v. Philip LADSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 637

497 N.Y.S.2d 637

66 N.Y.2d 428, 488 N.E.2d 458

The PEOPLE of the State of New York, Respondent, v. Derwyn FORD, Appellant.

The PEOPLE of the State of New York, Respondent, v. Philip LADSON, Appellant.

Court of Appeals of New York.

Nov. 26, 1985.

Karen Goldstein and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

Elizabeth Holtzman, Dist. Atty. (Debra W. Petrover and Barbara D. Underwood, Brooklyn, of counsel), for respondent in the first and second above-entitled action.

William J. Comiskey, New York City, for appellant in the second above-entitled action.

OPINION OF THE COURT

MEYER, Judge.

A jury charge which, despite defendant's request, fails to include as part of its instructions concerning circumstantial evidence that the circumstantial facts proved must exclude every hypothesis but guilt constitutes reversible error. In People v. Ford, there should, therefore, be a reversal and a new trial ordered. In People v. Ladson, however, there should be an affirmance, the errors argued having either not been preserved or being within the Trial Judge's discretion and unreviewable.

I

Perry Dillard testified that in the early morning hours of July 31, 1980, from his second floor apartment, he overheard several male voices coming from outside and below a window in his kitchen, which faced Bergen Street: "I heard somebody say 'Give me your box'. Then I heard somebody say, 'Why you want to take my box?' Then I heard somebody say, 'If you don't give up the box, shoot him.' " Initially Dillard was not concerned but, upon hearing a shot, he looked outside and saw three males, one of whom, the victim, Brian Buchanan, he knew. Buchanan was standing on Bergen Street near the corner of Kingston Avenue and between the two others, holding a radio. He was struggling over it with one of the men, who was dressed in green (later identified as defendant Ford). The third individual (later identified as defendant Philip Ladson), was holding a plastic shopping bag with his right hand in the bag and his left holding the handle. The victim, still holding the radio, and Ford then ran together down Kingston Avenue. Ladson took a different path. By the time Dillard had moved from his kitchen to his bedroom to be able to see Kingston Avenue (which took about half a minute), Buchanan was lying on the sidewalk and Ford, carrying the radio, had run past where Buchanan lay, returned and was standing over him. Eventually Ladson also returned, swinging the plastic bag as he walked. Autopsy showed that Buchanan had been shot in the back and that the bullet, which passed through his heart and lung, could have been fired from a distance ranging from 18 inches to 100 feet.

Officer Freeman, the first policeman on the scene, testified that Ford, who was standing on a nearby corner when he arrived, told the officer that Buchanan was his friend. He was upset and crying and later accompanied another officer to the home of the victim to inform the family. He also testified that one of the men was carrying a radio.

Neither Ford nor Ladson took the stand but both had been questioned by Detective Skala, who testified as to the statements they made. Ford's statement was that while the three were knocking on the door of a friend, who lived on Revere Place, he saw a light-skinned male and heard someone shout, "Now I've got you." They turned, ran down Revere to Bergen Street and when they had run about half to three quarters of the way down Bergen toward Kingston Avenue, a shot rang out. He and Buchanan continued to run and turned onto Kingston Avenue where Buchanan fell to the ground.

Ford's theory at trial was that Mark McKurdy had shot Buchanan. McKurdy, a light-skinned black, was a former police officer who had been convicted for a handgun assault and discharged from the force but on July 31, 1980 was on release pending appeal. Buchanan, four months before his death, had told police that he had witnessed McKurdy commit a bow and arrow shooting of a witness to the handgun assault. Buchanan had made a taped statement regarding the alleged incident. Ford's counsel tried to show at trial, through the testimony of a police officer, that McKurdy, therefore, had a motive to kill Buchanan. Buchanan's taped statement however, had been discredited by the police and he had never testified at McKurdy's trial for assault. Pursuant to stipulation, the jury was informed that Buchanan had not testified at McKurdy's trial. Ladson's attorney asked for a further stipulation that the person shot with the bow and arrow had been a witness to the prior handgun assault by McKurdy and had been unable to testify at McKurdy's trial because of his injury, but the Trial Judge ruled that out as too remote and not sustained by the record of the McKurdy trial.

Ladson's statement to Skala made no mention of anyone shouting, "Now I've got you" while they were on Revere Place, and indicated that the three boys had not started running until, as they walked up Revere toward Bergen and neared the corner, they heard a shot. No gun was ever found nor did anyone other than Dillard testify concerning Ladson's having a plastic bag, but Skala testified to a statement by Dillard made in his presence to an Assistant District Attorney in which Dillard stated that "he heard a shot and observed an expression of shock on Mr. Buchanan's face. He stated that the third male was standing behind Mr. Buchanan with his arm out stretched [sic ] with a plastic bag over the hand and it simulated positioning the gun in Mr. Buchanan's back."

Although defendant and Ladson were charged with two counts of murder in the second degree (intentional murder and felony murder; Penal Law § 125.25[1], [3] ) and criminal possession of a weapon in the second degree (Penal Law § 265.03), the Trial Judge submitted to the jury as lesser included offenses manslaughter in the first degree, manslaughter in the second degree and criminal possession in the third degree.

The court charged the jury, as part of its instructions on how to consider evidence, that it was entitled to draw reasonable inferences from the testimony and exhibits and that: "The defendants are entitled to every inference in their favor, which can reasonably be drawn from the evidence. And where two inferences may be drawn from the evidence, one consistent with guilt and the other consistent with innocence, each defendant is entitled to the inference consistent with innocence." It followed that statement with instructions concerning weighing evidence and determining credibility and then charged, with respect to circumstantial evidence, as set forth in the margin. ^*

Then, after instructions on expert witnesses and the presumption of innocence, the Trial Judge charged, as part of his instruction on reasonable doubt, that: "The doctrine of reasonable doubt must be applied by you to every element or ingredient necessary to constitute the crimes charged. A defendant cannot be convicted upon suspicion or even strong probabilities. If the evidence against a defendant is equally consistent with innocence and guilt, the jury must find the defendant innocent. The guilt of the defendant has not been proven beyond a reasonable doubt."

Ford's attorney had earlier submitted a two-page request on circumstantial evidence, which included the statement that, "The direct evidence must exclude to a moral certainty, every other reasonable hypothesis; in other words the facts which are directly proved must be inconsistent with his innocence." After the court's charge he excepted, referring to his earlier request and noting that the court should have charged that "the evidence with respect to circumstantial evidence must be [sic ] exclude every other hypothesis of guilt, where it is based on circumstantial evidence." Ladson's counsel submitted no similar request nor did he except to the charge as given. Both had, however, moved for trial orders of dismissal and both excepted to the lesser included charges on manslaughter first, manslaughter second and criminal possession of a weapon third, noting that they were "not requested by the defense and we had discussed this at the other [earlier] trial."

The jury found Ford guilty of manslaughter in the second degree and criminal possession of a weapon in the third degree. Ladson, who had allegedly fired the shot, was convicted of manslaughter first and second degree possession. The Appellate Division affirmed defendants' conviction without opinion. 100 A.D.2d 982 and 983, 474 N.Y.S.2d 157.

Before us both defendants argue that the evidence was insufficient to present a jury question, that it was error to submit lesser included offenses, and that the charge on circumstantial evidence was prejudicially insufficient. Defendant Ladson also contends that reversible error was committed in some of the Trial Judge's evidentiary rulings.

II

Viewing the evidence, as we must, in a manner most favorable to the prosecution and indulging in all reasonable inferences in the People's favor (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364; People v. Benzinger, 36 N.Y.2d 29, 364 N.Y.S.2d 855, 324 N.E.2d 334), we conclude that there is adequate evidence to support the jury's verdicts. The possibility that someone other than Ford or Ladson may have committed the crime does not preclude a guilty verdict--the jury is free to assess the evidence and to reject that which it finds to be nonpersuasive. "[A] jury faced with conflicting evidence may accept some and reject other items of evidence * * * regardless of whether that evidence is circumstantial or direct" (People v. Kennedy, 47 N.Y.2d 196, 201, 417 N.Y.S.2d 452, 391 N.E.2d 288).

A

Defendant Ford argues that the fact that a fight occurred during which an unidentified person ordered the victim shot if he did not give up the "box" is not enough to compel the conclusion that he recklessly caused Buchanan's death. This is...