People v. Lumpkins

• Decision Date: 19 October 1988
• Citation: 141 Misc.2d 581,533 N.Y.S.2d 792
• Parties: The PEOPLE of the State of New York, v. Todd LUMPKINS, Defendant.
• Court: New York Supreme Court

Page 792

533 N.Y.S.2d 792

141 Misc.2d 581

The PEOPLE of the State of New York, v. Todd LUMPKINS, Defendant.

Supreme Court, Criminal Term Kings County, Part 29.

Oct. 19, 1988.

Elizabeth Holtzman, Dist. Atty., Noah Sorkin, Asst. Dist. Atty., for the People.

Mitchell Dinnerstein, for defendant.

MICHAEL R. JUVILER, Justice.

This is a decision after a hearing on a motion to vacate judgment under CPL § 440.10. The defendant had been found guilty by a jury of murder in the second degree, and on August 10, 1987, I sentenced him to imprisonment for 24 years to life. The motion is granted for two reasons: (1) The People failed to turn over to the defense a "DD5" report prepared by the detective in charge of the investigation, which the defense had an absolute right to see because the detective testified for the People and his report related to the subject of his testimony. (2) This report contained exculpatory information, which the defendant had the constitutional right to receive.

Findings of Fact

The Trial Evidence

On April 11, 1986, Anthony Joseph, a dealer in cocaine, was killed by three gunshot wounds in the head, in the living room of his apartment in Brooklyn, as his wife hid in a closet in the adjoining bedroom. While the police were knocking on the apartment door she jumped out of the window, breaking both legs. The defendant was arrested for the crime on April 23.

At the trial Mrs. Joseph testified that when the deceased answered the intercom on April 11, a voice responded that it was "Todd," and she recognized the voice to be that of "Todd," the defendant. She also recognized the defendant's voice inside the apartment, although she did not see him. Mrs. Joseph testified about his previous visits to the apartment and her familiarity with his voice. On cross-examination, Mrs. Joseph insisted that the voice on the intercom identified the visitor as Todd, not Ty or Tide, but she admitted having told the police on April 11 and April 13 that the voice had said Tide.

Detective Rudolph Stubbs, the detective in charge of the investigation, testified that when he arrived at the scene, he observed the deceased on the floor in the living room lying against a dinette chair. Near the body was a deformed .38 caliber bullet, and in the foyer was a deformed .22 caliber bullet. Fingerprints were lifted from the chair, but the chair and the deceased's address book lying nearby were not vouchered. Stubbs also interviewed a neighbor in the building, Emmanuel Bowser.

The Crime Scene Unit dusted the scene for fingerprints; one print recovered from the chair matched the defendant's fingerprint. However, the officers did not make a note of precisely where the print was found or of the direction of the print.

Bowser testified as a defense witness that at the time of the incident he had seen two men entering the building. He described them as black males, one 5'11"' tall, the other 6'1"' tall, each wearing a moustache and goatee, one wearing an earring, and at least one with a "Jersey" haircut. (Neither description fit the defendant.) No one showed Bowser photographs. The defense also called several alibi witnesses.

The Hearing Evidence

On the eve of the sentencing, a man named Quan Jackson telephoned the defendant's lawyer and claimed that the defendant was innocent and that in July, 1986, he had called the police Crime Stoppers Unit to tell them that two other men had killed Joseph. The defendant moved to vacate the judgment.

The hearing on the motion established that unknown to the District Attorney, the defendant's lawyer, and the court, on July 9, 1986, Detective Andrew Ware of the Crime Stoppers Unit had received an anonymous telephone call relating to this case. Ware gave the caller code # 2015; the informant (now know to be Jackson) remained anonymous. This information was then relayed to Detective Stubbs, and on July 11 he reviewed the Crime Stoppers file and filled out a police report regarding this information, "DD5 # 17."

The DD5 # 17 said that the caller had reported that Lumpkins did not murder Joseph and that Lincoln Davis and Ronnie McNeil were the murderers. He described Davis as a male black about 24-25 years old, 6'0"'-6'1"', 160 pounds, dark skin, wearing a moustache and goatee, with a Jersey haircut, and McNeil, also known as "Clyde," as a male black, 25-26, 6'0"', dark skin, with a moustache and goatee. He gave their addresses and indicated that they may have been arrested together and imprisoned together at Eastern Correctional Facility. The caller alleged that the murderers had had an argument with Anthony Joseph over the weight of drugs they had bought from him; they were overheard making threatening remarks about Joseph, and later that day Joseph was killed. He said that McNeil had a "silver .38 pistol." The informant claimed that Davis and McNeil were bragging that "everything was cool because China [Lumpkins] got caught."

Attached to DD5 # 17 were photographs of two individuals, Lincoln Davis and Ronald McMillan, with their dates of birth and NYSIS numbers. The report also noted that Detective Stubbs asked the Latent Fingerprint Unit for a comparison of the prints of the two individuals in the photographs with the prints taken from the crime scene.

Before the trial, all the police reports of Detective Stubbs known to the District Attorney were turned over to the defense. DD5 # 17 was not discovered until after the trial.

THE ROSARIO ISSUE

In People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, the Court held that a "right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness' testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination ... A pretrial statement of a witness for the prosecution is valuable not just as a source of contradictions with which to confront him and discredit his trial testimony. Even statements seemingly in harmony with such testimony may contain matter which will prove helpful on cross-examination. They may reflect a witness' bias, for instance or otherwise supply the defendant with knowledge essential to the neutralization of the damaging testimony of the witness which might, perhaps, turn the scales in his favor." 9 N.Y.2d at 289-290, 213 N.Y.S.2d 448, 173 N.E.2d 881. This rule gives defense counsel "the opportunity to inspect a witness' prior statement for possible use or leads on cross-examination," without a preliminary finding by the trial court that the material would be useful to the defense. People v. Perez, 65 N.Y.2d 154, 158, 490 N.Y.S.2d 747, 480 N.E.2d 361.

The rule, codified in CPL § 240.45(1)(a), requires disclosure of the notes and reports of a police witness made in connection with a defendant's arrest (People v. Malinsky, 15 N.Y.2d 86, 262 N.Y.S.2d 65, 209 N.E.2d 694), and a detective witness's notes of his investigation. People v. Kass, 25 N.Y.2d 123, 127, 302 N.Y.S.2d 807, 250 N.E.2d 219; People v. Gilligan, 39 N.Y.2d 769, 384 N.Y.S.2d 778, 349 N.E.2d 879. Failure to turn over Rosario material until after the trial requires a new trial; "the courts will not attempt to determine whether any prejudice accrued to the defense. The failure constitutes per se error requiring that the conviction be reversed." People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361. The error may be alleged in a motion to vacate judgment; if the error is proved, the court must vacate the judgment, regardless whether prejudice to the defense was proved. People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219; People v. Robinson, 133 A.D.2d 859, 520 N.Y.S.2d 415. The error is not excused by the People's ignorance of the material or even by their good-faith effort to locate it. People v. Ranghelle, 69 N.Y.2d at 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011.

In this case, Detective Stubbs's DD5 # 17 was precisely the kind of report required to be disclosed at the outset of the trial. Its author was a witness at the trial, so it was the statement of a witness, and the report related to his testimony, which dealt with his role as the detective in charge of the investigation of the homicide. The report went to the heart of that investigation. It related to his knowledge of the case and his pursuit of a lead. It went also to the heart of the defense. The theory of the defense was a mistake in the voice identification and a reasonable doubt from lack of evidence because of the failure of the detective who conducted the investigation to preserve evidence or pursue leads involving other suspects, two of whom had appeared in the lobby just before the murder and were observed by the defense witness Bowser. That the People did not ask Stubbs to testify about the events described in his report does not remove the report from the class of Rosario material. People v. Perez, supra.

In People v. Gilligan, supra, the Court of Appeals ordered a new trial on similar facts. The defense lawyer's request to inspect the written report by several police officers in the course of their investigation of the crime had been denied. The Court took note of its "explicit holding in Malinsky ... that a trial court 'may not allow the People to keep from the defense counsel statements or notes made by a witness upon the ground that nothing in them could assist the defense or that no prejudice would result from withholding them.' " 39 N.Y.2d at 770, 384 N.Y.S.2d 778, 349 N.E.2d 879. Here, as in Gilligan, the defendant's lawyer requested all reports by the investigating detective.

This case is also similar to People v. Quinones, 139 A.D.2d 404, 527 N.Y.S.2d 5 (leave to appeal granted 71...