People v. Kennedy

• Decision Date: 05 June 1979
• Citation: 47 N.Y.2d 196,417 N.Y.S.2d 452
• Parties: , 391 N.E.2d 288 The PEOPLE of the State of New York, Appellant, v. Lucia KENNEDY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 452

417 N.Y.S.2d 452

47 N.Y.2d 196, 391 N.E.2d 288

The PEOPLE of the State of New York, Appellant, v. Lucia KENNEDY, Respondent.

Court of Appeals of New York.

June 5, 1979.

John J. Santucci, Dist. Atty. (Eileen M. Sullivan, Kew Gardens, of counsel), for appellant.

James B. Jordan and William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

In the early evening hours of April 3, 1974, the police were summoned to an alleyway located behind a Key Foods Supermarket near the intersection of Sutphin Boulevard and 119th Avenue in the Borough of Queens. There they found the lifeless body of Bernard Jackson, who had been fatally shot in the right temple with a .25 caliber pistol belonging to Lucia Kennedy, the defendant in this prosecution for Jackson's murder. The testimony at Kennedy's trial showed that Kennedy was a member of the Savage Skulls, a neighborhood youth gang, while Jackson had belonged to the Seven Crowns, a rival gang with which Kennedy had previously been associated. A week or two before the murder, Kennedy had told Mark Robinson, another member of the Savage Skulls, to "(p)ut the word out that I'm going to kill (Jackson)", because of Kennedy's belief that Jackson had assaulted Kennedy's girl friend. Sandra Simon, a young woman who knew both Kennedy and Jackson, testified that she saw them together about 30 minutes prior to the murder on a street which was only a few blocks away from what was soon to become the scene of Jackson's death. According to her testimony, Kennedy was hitting Jackson on the face and chest while holding him by his collar. Jackson was not resisting Kennedy physically, and Simon heard him say "(l)et me go. It wasn't me. Stop hitting me. You and that damn gun." Additional testimony was provided by Sheldon Dobie, another member of the Savage Skulls, who was standing in front of a liquor store on Sutphin Boulevard near the supermarket at the time of the murder. He testified that Kennedy, Jackson, and several other youths walked by him while he was standing there, and that Kennedy had one hand on Jackson's shoulder and carried the murder weapon in his other hand. They walked to the intersection of Sutphin Boulevard and 119th Avenue and then turned the corner in the direction of the alleyway and disappeared from Dobie's sight. A minute or two later, several other youths, some of whom he recognized as fellow members of the Savage Skulls, also passed Dobie and followed the same route. About a minute later he heard a shot, and then saw all but one of the youths who had passed him come running back around the corner and up the block. The one who did not return was, of course, Jackson, whom they had left bleeding to death on the pavement behind them.

Following an investigation of the murder, Kennedy was arrested and charged with the crime of murder in that he intentionally caused the death of Bernard Jackson "by shooting him with a pistol". Meanwhile, another member of the Savage Skulls, Wilfredo O., a juvenile, had been questioned by police in the course of an unrelated investigation. During that interrogation, he told investigating officers that he had killed Jackson, and made arrangements with other members of the gang to have the murder weapon turned over to the police. On May 16, 1974, Wilfredo O. was adjudicated a juvenile delinquent following his admission in Family Court that he had committed an unspecified act which would have constituted the crime of manslaughter in the second degree had it been committed by an adult, and was transferred to the custody of the State Division for Youth for a period of 18 months. It appears from the testimony of police officers at Kennedy's trial that the act constituting manslaughter to which Wilfredo O. confessed was the murder of Bernard Jackson. Wilfredo O. was released from custody prior to Kennedy's trial, and was not available to testify at that trial. Instead, testimony concerning his confession was elicited by defense counsel during cross-examination of the police officers to whom Wilfredo O. had made his statements.

Kennedy was not indicted for accessorial conduct, and the trial court refused to give an acting in concert charge to the jury. Instead, the court charged the jury that in order to convict Kennedy they must find that he had actually shot Bernard Jackson. The jury convicted Kennedy of murder, and he appealed to the Appellate Division. That court (59 A.D.2d 539, 397 N.Y.S.2d 19) at first reversed his conviction and ordered a new trial because of certain perceived trial errors. Upon defendant's motion for reargument of the appeal, however, the Appellate Division granted the motion to reargue, concluded that the People had failed to prove defendant's guilt beyond a reasonable doubt, and ordered the indictment dismissed. The People now appeal to this court. We conclude that the People did meet their burden of proof and that the indictment should not be dismissed, but that a new trial is needed because of certain errors discussed below.

Turning first to defendant's claim that the People failed to prove him guilty beyond a reasonable doubt, we disagree with defendant's contention that he may not be convicted, despite the overwhelming circumstantial evidence of his guilt, simply because another person, Wilfredo O., has confessed to the crime. In essence, defendant argues that the mere existence of evidence which would preclude his conviction if believed by the jury suffices to prevent his conviction even if that evidence is disbelieved by the jury, when the case against him is based on circumstantial evidence. So viewed, defendant's argument contains the seeds of its own destruction, for a jury faced with conflicting evidence may accept some and reject other items of evidence, absence any logical inconsistency in the jury's choice, regardless of whether that evidence is circumstantial or direct.

It has long been the law in this State that a criminal conviction based upon circumstantial evidence is subject to strict judicial scrutiny (see People v. Bennett, 49 N.Y. 137, 144-145). This is so not because circumstantial evidence is any less reliable than direct evidence, for each of the two types of evidence is subject to certain inherent weaknesses (see 1 Wigmore (3d ed.), Evidence, § 26). Indeed, there is much to be said for the argument that direct testimony may often be of more dubious value, as is indicated by the extensive literature on the lack of reliability of eyewitness testimony (see, e. g., O'Connor, "That's the Man": A Sobering Study of Eyewitness Identification and the Polygraph, 49 St John's LR 1; Borchard, Convicting the Innocent) as well as the often expressed judicial concern with the problem of impermissibly suggestive identification procedures (see, e. g., United States v. Wade, 388 U.S. 218, 228-239, 87 S.Ct. 1926, 18 L.Ed.2d 1149). Rather, cases involving circumstantial evidence must be closely reviewed because they often require the jury to undertake a more complex and problematical reasoning process than do cases based on direct evidence. In the latter situation, the jury is normally concerned primarily with assessing the credibility of witnesses, a role for which the jury is superbly suited. Where, however, the defendant's guilt is to be proven, if at all, by circumstantial evidence only, the jury must attempt a careful and close analysis of the evidence and determine what inferences can and should be drawn not merely from each separate piece of evidence, but from the whole complex of interrelated information which is presented in evidence. This is not to suggest, of course, that a jury need not carefully analyze the evidence in a case based on direct evidence. However, in such a case, the jury has less need to depend on inference, and is more likely to be faced with the relatively less complex, although no less difficult task of determining which witnesses are telling the truth. In a circumstantial evidence case, in contradistinction, the reasoning process tends to be more complex, and is thus more subject to error. Hence, close judicial supervision is necessary to ensure that the jury does not make inferences which are based not on the evidence presented, but rather on unsupported assumptions drawn from evidence equivocal at best (see People v. Cleague, 22 N.Y.2d 363, 367, 292 N.Y.S.2d 861, 864, 239 N.E.2d 617, 619). Careful review of such cases is needed to decrease "a danger legitimately associated with circumstantial evidence that the trier of facts may leap...