People v. Johnson

• Decision Date: 16 May 2013
• Citation: 106 A.D.3d 1272,965 N.Y.S.2d 220,2013 N.Y. Slip Op. 03508
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawndell JOHNSON, Also Known as Ramel Voulgaousn, Also Known as Buck, Also Known as Southside, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1272
965 N.Y.S.2d 220
2013 N.Y. Slip Op. 03508

The PEOPLE of the State of New York, Respondent,
v.
Shawndell JOHNSON, Also Known as Ramel Voulgaousn, Also Known as Buck, Also Known as Southside, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 16, 2013.

[965 N.Y.S.2d 221]

Mitch Kessler, Cohoes, for appellant.

Robert M. Carney, District Attorney, Schenectady (Phillip W. Mueller of counsel), for respondent.

Before: PETERS, P.J., ROSE, STEIN and EGAN JR., JJ.

EGAN JR., J.

[106 A.D.3d 1272]Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered January 12, 2011 in Schenectady County, upon a verdict

[965 N.Y.S.2d 222]

convicting defendant of the crimes of murder in the first degree, murder in the second degree, attempted robbery in the first degree (three counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, reckless endangerment in the first degree and tampering with physical evidence.

During the early morning hours of September 1, 2008, defendant and his cohorts—Tyrell Durham and David Dickerson—met up with Jennifer Derenzo Williams (hereinafter Derenzo) and her then boyfriend, Christopher Williams, at a Hess gas station in the City of Schenectady, Schenectady County. Defendant was driving a blue Lexus that he had borrowed from a friend, and Derenzo was driving a rented Toyota Camry. The group, at least some of whom already had been drinking beer and/or smoking marihuana, purchased additional beer and decided to continue partying at the home of Travis Cellini, where they remained until approximately 4:30 a.m. After departing Cellini's home, the group—consisting of Derenzo and Williams in the Camry and defendant, Dickerson and Durham in the Lexus—unsuccessfully attempted to purchase marihuana from a local “weed spot.” The group continued to drive around Schenectady County and, at some point, defendant struck a curb with the Lexus and apparently damaged one of the wheels. Defendant then parked [106 A.D.3d 1273]the vehicle in the lot of a local hotel, and the group set out again in Derenzo's Camry. When Williams expressed interest in finding another weed spot, defendant directed him to 933 Albany Street in Schenectady—a location from which he previously had purchased marihuana.

Upon arriving at that address, defendant entered an apartment and made his purchase from Tristan Phillips. Defendant, however, was dissatisfied with the quality of his purchase and thereafter devised a plan to rob the weed spot in order to obtain money to fix the damaged Lexus. At defendant's request, Williams retrieved a 9 millimeter handgun that he had stashed at a friend's house earlier that evening, and the group then drove back to 933 Albany Street. ¹ Once there, Derenzo parked a few houses away in order to avoid detection, and defendant, Williams, Durham and Dickerson exited the Camry and entered the weed spot.

Defendant knocked on the door of the apartment, told Phillips why he was there, explained that he had been in an accident and asked Phillips to let him inside so that he could wash his hands. Williams, Dickerson and Durham waited—apparently out of sight—in the hallway. Defendant told Phillips that he was waiting for his “homeboy” to bring him money for the purchase and lingered in the apartment—waiting for Williams to rush in as planned. When Williams failed to materialize, defendant told Phillips that he had changed his mind and started to leave. At this point, Ulysses Canty—the alleged proprietor of the weed spot—became suspicious, pushed defendant from the apartment and closed the door behind him.² According to Williams and Durham, defendant then grabbed the gun from Williams and fired multiple shots at the closed door. Canty, who was braced against the inside of the door, was struck and fatally wounded. Defendant,

[965 N.Y.S.2d 223]

Williams, Durham and Dickerson then fled the scene in Derenzo's Camry, which she crashed into a telephone pole shortly thereafter.

Defendant subsequently was arrested in connection with unrelated drug sales made to a confidential informant ( see People v. Johnson, 91 A.D.3d 1194, 937 N.Y.S.2d 443 [2012],lv. denied18 N.Y.3d 995, 945 N.Y.S.2d 649, 968 N.E.2d 1005 [2012] ) and, in September 2009, was indicted and charged with various crimes stemming from the shooting at the weed spot. Following a 14–day jury trial, defendant was convicted of the crimes of [106 A.D.3d 1274]murder in the first degree, murder in the second degree, attempted robbery in the first degree (three counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, reckless endangerment in the first degree and tampering with physical evidence and thereafter was sentenced to an aggregate prison term of 28 1/2 years to life. This appeal ensued.

We affirm. Defendant initially challenges certain of Supreme Court's pretrial rulings, including the court's decision to permit the People to introduce evidence regarding defendant's drug-trade activity and rumored affiliation with the Bloods gang. “Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme and identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness's narrative” ( People v. Burnell, 89 A.D.3d 1118, 1120, 931 N.Y.S.2d 776 [2011],lv. denied18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012] [internal quotation marks and citations omitted] ). Here, defendant's drug-related activities and purported gang membership provided necessary background information, explained how Derenzo, Williams, Durham, Phillips and defendant knew one another (as well as why defendant's acquaintances went along with his plan to rob the weed spot) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant's awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” ( People v. Williams, 28 A.D.3d 1005, 1008, 814 N.Y.S.2d 353 [2006],lv. denied7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 [2006];see People v. Jackson, 100 A.D.3d 1258, 1261, 954 N.Y.S.2d 679 [2012];People v. Burnell, 89 A.D.3d at 1120–1121, 931 N.Y.S.2d 776;People v. Lee, 80 A.D.3d 877, 880, 914 N.Y.S.2d 415 [2011],lvs. denied16 N.Y.3d 832, 833, 834, 921 N.Y.S.2d 197, 198, 946 N.E.2d 185, 186 [2011] ). We also are persuaded that Supreme Court, which revisited this issue frequently throughout the trial, properly balanced the probative value of such evidence against its prejudicial effect and gave appropriate limiting instructions ( see People v. Lee, 80 A.D.3d at 880, 914 N.Y.S.2d 415). Under these circumstances, we discern no error in the admission of the proffered evidence.

We do, however, find that portions of defendant's November 24, 2008 video-recorded interview—conducted by a member of the Schenectady Police Department—should have been suppressed based upon defendant's clear invocation of his right to [106 A.D.3d 1275]remain silent.³ The case law

[965 N.Y.S.2d 224]

makes clear that “[a] defendant's invocation of the right to remain silent must be scrupulously honored” ( People v. Logan, 19 A.D.3d 939, 941, 797 N.Y.S.2d 634 [2005],lv. denied5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] [internal quotation marks and citations omitted]; see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966];People v. Caruso, 34 A.D.3d 860, 862, 822 N.Y.S.2d 825 [2006],lv. denied8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007] ) once the right is asserted in an “unequivocal and unqualified” fashion ( People v. Horton, 46 A.D.3d 1225, 1226, 850 N.Y.S.2d 650 [2007],lv. denied10 N.Y.3d 766, 854 N.Y.S.2d 328, 883 N.E.2d 1263 [2008] ). Whether a defendant's request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request [,] including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant” ( People v. Zacher, 97 A.D.3d 1101, 1101, 948 N.Y.S.2d 509 [2012],lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 [2013] [internal quotation marks and citation omitted] ).

Here, defendant was interviewed for approximately 30 minutes on November 24, 2008 by a detective with the Schenectady Police Department. After advising defendant of his Miranda rights, the detective began questioning defendant regarding his association with Derenzo and Williams, as well as his activities on the morning of the shooting. Less than 18 minutes into the interview, however, defendant stated that he did not wish to answer any more questions; in response, the detective indicated that he nonetheless wished to ask additional questions of defendant and thereafter proceeded to do so. This pattern-as summarized below-would repeat itself over the course of the next 13 minutes or so until defendant uttered the word “lawyer” and the questioning finally ceased.⁴

7:53:15 a.m.

“Defendant: I don't wanna do no more questions,...