People v. Gonzalez
| Decision Date | 10 February 1995 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Julio GONZALEZ, Defendant. |
| Court | New York Supreme Court |
Robert T. Johnson, Dist. Atty. (Anthony J. Girese, Lisa E. Mudd, New York City, of counsel), Bronx County, for the People.
Richard W. Berne, New York City, for defendant.
The defendant was convicted after a jury trial of 87 counts of depraved indifference murder, 87 counts of felony murder, one count of arson in the first degree and one count of assault in the first degree. On September 19, 1991, the defendant was sentenced to concurrent terms of 25 years to life on each of the 174 counts of murder, and concurrent terms of 25 years to life for the arson conviction and 5 to 15 years for the assault conviction. These convictions all resulted from the fire at the Happy Land Social Club on March 25, 1990.
On December 21, 1993, the defendant filed a C.P.L. § 440.10 motion to vacate his convictions on the ground that the People did not supply the audiotapes made by the medical examiners who performed the 87 autopsies conducted as a result of the fire. 1 The defendant contended that the tapes were Rosario material and the People were required to obtain the audiotapes from the Office of the Chief Medical Examiner (OCME) and to provide them to the defense. For the reasons that follow, the motion is denied.
A. The Crime and the Trial
On March 25, 1990, the defendant and his former girlfriend, Lydia Feliciano, who worked at the Happy Land Social Club as a hat checker, had an argument. Following that quarrel, the defendant purchased a dollar's worth of gasoline, went to the social club and poured the gasoline into the club and then ignited it with a lighted match. This action started a fire that burned down the club and killed 87 people, making this crime one of the worst mass murders in the history of the United States. 2
When the case came to trial in July 1991, the defendant presented an insanity defense. He did not contest the issues of who started the fire or what caused the 87 victims' deaths. This position was made clear right from the outset of the trial. In his opening statement, defense counsel said:
Ladies and gentlemen, on March 25, 1990, Julio Gonzalez started the fire in the Happyland [sic ] Social Club. You've all heard me concede that repeatedly. I'm conceding that he started the fire, I'm conceding that 87 people died as a result of that fire, no question as to who they were, no question as to how they died, no question that it was a horrible tragedy, almost beyond human imagination.
I also concede that as a result of that fire Rubin Valladares was seriously injured, he was burned escaping from the building. But ladies and gentlemen, when Julio Gonzalez started that fire, he was legally insane. I'm using the term insane, you know the legal expression.
That is the only issue I have addressed so far during voir dire, it's the only issue I'm addressing now, it's the only issue I will address with evidence during the trial, the only issue you will hear me refer to in my summation, it is the only issue I think you need seriously consider when you retire to deliberate.
True to his word, defense counsel did not question any of the witnesses called to identify the bodies of the 87 victims of the fire and he did not cross-examine any of the medical examiners who testified during the trial. He called two psychologists to present evidence concerning the insanity defense. Then, after the People called a psychologist and a psychiatrist in rebuttal, defense counsel in summation attacked the findings of the People's medical experts and argued that the jury should find the defendant not guilty by reason of insanity. He did not make an issue of the cause of death or who had died. The jury rejected the defense of insanity and returned the verdict outlined above.
Before the medical examiners were called to testify, the parties tried to reach a stipulation that would obviate the need to hear testimony about the cause of death and the identification of all 87 victims. No stipulation was reached, however, because the defense was not willing to enter a stipulation if the People chose to present "police testimony or fire testimony" about the conditions in the social club after the fire. 3 The People did not stipulate on the defendant's terms because they believed the evidence they presented was necessary for a full understanding of the case. Consequently, the jury heard evidence from the medical examiners (M.E.s).
Only seven of the nine medical examiners who performed the 87 autopsies in this case testified at the trial. The People did not call Dr. Vernard Adams or Dr. Michael Ferenc, and Dr. John Pearl testified about the findings concerning the twenty-five victims whose autopsies were performed by either Adams or Ferenc. The defense agreed to this procedure because Drs. Adams and Ferenc would have had to come from other states to testify and it was agreed that the People could save the time and expense of producing these two doctors. 4
Each of the seven medical examiners who testified described their backgrounds, including their education, their board certifications, their titles, their duties as M.E.s and the number of autopsies they had performed and observed. 5 They were all qualified as experts. Then, each M.E. described the first of the autopsies they testified about in some detail, explaining that the victim they examined died of smoke inhalation and how and why they reached that conclusion. All of the M.E.s testified that when a person is caught in a fire he or she breathes in smoke, which contains carbon monoxide. Carbon monoxide bonds more readily with hemoglobin in a person's blood than does oxygen. Hemoglobin is the molecule that carries oxygen to the tissues and cells of the human body. Therefore, when carbon monoxide bonds with hemoglobin, it prevents a person from getting the oxygen needed to survive. The M.E.s each testified that they found soot inside the airways of the victims they examined, that the victims had a cherry pink discoloration of the skin that is characteristic of carbon monoxide poisoning and that the toxicology report showed high levels of carbon monoxide in the victims' blood.
After the more in-depth questioning, the testimony concerning the other victims examined by an M.E. fell into a pattern. The typical questioning is shown in the following example:
Q Doctor, did you perform an autopsy under M.E. case number 1581 on an individual identified to you as Victor Cordova and with respect to this indictment those would be counts 44 and 131?
A Yes.
Q Was this autopsy report made in the regular course of your business within a reasonable time after the completion of your autopsy?
A Yes, it was.
MR. WARNER (the prosecutor): I would ask that that report be marked in evidence as People's 8-17.
THE COURT: Any objection?
MR. BERNE (defense counsel): No objection.
THE COURT: Received in evidence. * * *
Q Dr. Pearl, based on your autopsy do you have an opinion as to the cause of death of this individual identified to you as Victor Cordova?
A Yes, I do.
Q What is your opinion?
A He died of smoke inhalation.
Q Is that opinion consistent with the findings you made during the course of your autopsy report?
A Yes, it is consistent with the autopsy and the toxicology findings.
Q Are the findings that you made generally consistent with those that you have expressed earlier?
After the defendant filed this CPL 440.10 motion, this Court conducted several proceedings on the motion. On March 23, 1994, the parties agreed that they would subpoena all of the autopsy tapes and listen to them to determine if the tapes were simply duplicative equivalents of the reports. By August 16, 1994, the parties had listened to all of the tapes and compared them to the autopsy reports. They agreed to prepare a joint report documenting the differences between the autopsy tapes and the autopsy reports. 6
The defendant agreed, during the proceedings, that the People went to great lengths to provide discovery and that the voluminous discovery was provided to the defendant long before the hearing was held. Further, the defendant conceded that he never made an issue of the cause of death during the trial; his defense was insanity. Finally, the defendant conceded that he was not raising any Brady claim with respect to any of the autopsy tapes. And, although the Court repeatedly invited defense counsel to do so, counsel refused throughout the proceedings to make an effort to show that his defense was somehow prejudiced because he did not receive the autopsy tapes. Counsel's position was that the complete failure to turn over Rosario material is immune from harmless error analysis and thus he would not show prejudice.
On November 7, 1994, the prosecutors connected with the investigation and trial of this case filed affirmations in which they stated that they "had no knowledge that the Office of the Chief Medical Examiner maintained audiotapes that are dictated during autopsies." Defense counsel, too, acknowledged during one of the proceedings that he did not know until some time after the jury reached its verdict that autopsy tapes were created by OCME.
On December 28, 1994, the Corporation Counsel of the City of New York on behalf of the Chief Medical Examiner of the City of New York filed a motion on notice to both parties seeking permission to appear as amicus curiae. The extent of OCME's participation in the proceeding was to file along with its motion an affidavit of Charles S. Hirsch, the Chief Medical Examiner of the City of New York. The affidavit provides additional factual information about the functioning of OCME that was not brought out by the parties. Because OCME may be...
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