People v. Keller

• Decision Date: 06 April 1979
• Citation: 415 N.Y.S.2d 529,67 A.D.2d 153
• Parties: PEOPLE of the State of New York, Respondent, v. John F. KELLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 529

415 N.Y.S.2d 529

67 A.D.2d 153

PEOPLE of the State of New York, Respondent, v. John F. KELLER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 6, 1979.

Nathaniel A. Barrell, Buffalo (Anna L. Marks, Buffalo, of counsel), for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo (John J. DeFranks, Buffalo, of counsel), for respondent.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and WITMER, JJ.

OPINION

WITMER, Justice.

Upon an indictment for assault in the first degree and criminal possession of a weapon in the fourth degree defendant was convicted, after jury trial, of the lesser included crime of assault in the second degree and also of criminal possession of a weapon in the fourth degree. He was sentenced on the assault count to an indeterminate term of imprisonment with a maximum of seven years and to one year on the weapon count, to run concurrently. On this appeal he asserts that improper conduct of the prosecutor and undue questioning of an alibi witness by the trial justice deprived him of a fair trial, and we agree. Additionally, he claims that the sentence imposed was excessive.

At about 1:00 A.M. on July 12, 1977 Earl Thompson was found lying on a bed that was soaked with his blood, emanating from his slit throat. This was in a second floor flat at No. 217 Maurice Street in the City of Buffalo. Mrs. Dunsmoor was a tenant in this flat and her two sons, Pat and James Devine, lived there with her; and for a few days or weeks prior to the incident, Earl Thompson also lived there. The only person who later gave testimony implicating defendant in the attack on Thompson was James Devine, and the evidence of the latter's presence at the time of the crime was the basis of the defense that he, not defendant, was the guilty person.

The testimony developed the following scenario: On the morning of July 11, 1977 Mrs. Dunsmoor and her friend, Donna Endridge, started drinking alcoholic beverages in her flat, and they were soon joined by Earl Thompson, Bill Geary and John F. Keller, the defendant. They continued to drink throughout the day and evening. At about midnight Mrs. Dunsmoor and Donna left to go to a bar. At that time, according to Mrs. Dunsmoor, her son James was sitting at the table with defendant. Geary had "passed out" and was asleep on the floor, and Thompson was asleep in the bedroom. When Mrs. Dunsmoor and Donna returned from the bar about an hour later, Geary was still asleep on the floor and Thompson was on the bed but his throat had been cut and he had bled profusely, so that the bed was covered with blood. They acted at once to attend to Thompson, and they aroused Geary to call the police. The police arrived shortly and called an ambulance. Mrs. Dunsmoor testified that she observed no argument or fighting between Thompson and defendant that evening.

Thompson was taken to a hospital where he was treated for a wound three inches deep in the front of his neck and for several superficial cuts in his abdomen. He remained in the hospital for seven days, during four of which he was under intensive care. The neck wound created a substantial risk of his death, but he recovered and testified at the trial.

He testified that he, Geary and defendant were drinking in the apartment that afternoon, and in the early evening they went to a liquor store and got two quarts of wine and drank one of them on the way home; that during that time defendant showed him a knife which had a blade four or five inches long, but there was no argument or fighting between them. After returning to the flat, they continued to drink. Soon Mrs. Dunsmoor and Donna left to go to a bar, and he went to bed. He acknowledged that he may have been in a drunken stupor after 9:00 P.M. and he recalls nothing thereafter until he woke up in the hospital. He noted that nothing was stolen from him during the incident that night.

Defendant's sister, Florence Keller, lived in the flat beneath Mrs. Dunsmoor and she testified on behalf of defendant. She had been in the Dunsmoor flat for a while that evening and saw defendant sitting at a table with Thompson and Geary. She returned to her apartment and after 12:30 A.M. she heard sounds of a fight in the flat above, of something falling and of moaning and someone running down the stairs. She went to her window, near the porch, and saw James Devine jump off the porch, holding a long knife in his right hand. She testified that she was frightened and did not go upstairs until called up later by Donna. At that time, she said, Geary was still asleep on the floor and Donna and Mrs. Dunsmoor were attending Thompson in the bedroom; and that as she left the flat, James Devine returned home and told her that he did not know what had happened. She further testified that she had seen defendant leave the flat shortly after 10:00 P.M.

Geary testified and confirmed that the group had been drinking all afternoon and evening on July 11 and that there was no argument or fighting between Thompson and defendant. He testified that he saw no knife in defendant's possession and that defendant left to go to a tavern about 10:00 P.M.

James Devine testified that he came home at about 5:30 P.M. on July 11, when only his mother, Mrs. Dunsmoor, and Donna were there, and he left after 20 minutes and did not return until 12:30 A.M. that night. At that time Mrs. Dunsmoor, Donna, Thompson, Geary and defendant were there drinking in the kitchen. He also stated that the women and defendant were sitting at the table, Geary was leaning against the counter and Thompson was lying on the bed. His mother told him to eat a sandwich and go to bed, and he did. His mother and Donna were than about to leave; and by that time Geary was asleep on the floor. Shortly thereafter he heard hollering and moaning, and he went to the dining room and saw defendant standing beside the bed on which Thompson lay, and "there was blood all over the place". Defendant came out of the bedroom and said to Devine, "If you say anything to anyone, the same thing will happen to you". Defendant then went into the kitchen and wiped the knife on a shirt belonging to Devine that was hanging there. Devine testified that he then left the house to find his mother, and was too scared to use the telephone. He checked two bars, looking unsuccessfully for his mother. He then returned home and found his mother and Donna there attending to Thompson, and defendant was not there. When the police came, Devine did not tell them who attacked Thompson until they threatened to give him a lie detector test. He stated that at no time did he see Thompson and defendant argue or fight.

At the conclusion of the cross-examination of defendant's sister, Florence Keller, the trial justice questioned her at some length. She testified that after Donna called her to the upstairs apartment she, Florence, only stayed there a few minutes. She saw the police and ambulance come. Nobody came to her apartment to ask her questions, and she volunteered no information. She only learned from the newspaper that her brother had been arrested for assaulting Thompson, but she did not tell the police what she saw James Devine do that night. She testified that when she saw Devine on the porch as he returned home that night she told him that she saw him come down the stairs and jump off the porch with a knife in his hand; but she never told anyone else that, not even the defense attorney, until she testified at the trial, because she feared for her life and the lives of her children.

Defendant testified in his own defense. He confirmed that he was in Mrs. Dunsmoor's flat on the afternoon and evening of July 11, drinking with her and Donna, Thompson and Geary, and confirmed the trip to the liquor store with Thompson. He stated that after that he remained in the flat two or three hours until a little after 10:00 P.M. when he went to Kelly's Inn, where he met a friend, Ricky LaRue; and he remained at the Inn until 3:30 A.M. when he went home alone. He knew no one at the Inn except Ricky and the bartender. For some months during that period he had met Ricky at that bar nightly; he knows where Ricky lives; but he has not seen him lately. Ricky was not called as a witness. Defendant stated that he and Thompson were good friends, and that Thompson bought the wine on July 11. Defendant had never talked with his sister about this incident. His attorney told him that she was going to testify but he did not know what she was going to say. He denied having any fight with Thompson on the night of July 11-12.

Defendant's first contention is that the conduct of the prosecuting district attorney denied him a fair trial. He points especially to the following conduct of the prosecutor: On cross-examination of Florence Keller the prosecutor addressed her thus: "Mrs. Keller, before going any further, I would like to give you an opportunity, if you want to, that if there is anything you have testified to, that you want to change that maybe is exaggerated on or you lied about ". Defendant's objection to the statement was sustained. At the close of Ms. Keller's testimony the prosecutor moved to strike her testimony "as being (as) a matter of law totally unbelievable". On summation the prosecutor made the following statements concerning Ms. Keller's testimony: "She has got a motive to lie, it is her brother. It is pretty tough. I don't know if I can come on that hard as a prosecutor, except, she is defiling the system of justice which I am sworn to participate in * * * This system has to work. She took that stand and she just lied. Now, if you feel differently, please be honest. That is my gut reaction, but I couldn't believe It * * * ". Further, "If you listen to that woman testifying, if you listened and use your good common sense, that woman was filled with so much bitterness, hatred, resentment, that she would have told us that this building is located in Miami, Florida. Did sh...