People v. McGhee

• Decision Date: 19 December 2019
• Docket Number: 10089,10089A,Ind. 6041/11
• Citation: 180 A.D.3d 26,116 N.Y.S.3d 206
• Parties: The PEOPLE of the State of New York, Respondent, v. Darrin MCGHEE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 26

116 N.Y.S.3d 206

The PEOPLE of the State of New York, Respondent,

v.Darrin MCGHEE, Defendant–Appellant.

10089

10089A

Ind. 6041/11

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

ENTERED: DECEMBER 19, 2019

Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes and Patrick J. Hynes of counsel), for respondent.

John W. Sweeny, Jr., J.P., Peter Tom, Angela M. Mazzarelli, Jeffrey K. Oing, Anil C. Singh, JJ.

MAZZARELLI, J.

" ‘The Brady rule is based on the requirement of due process, and [i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that the accused receives a fair trial’ " ( People v. Garrett, 23 N.Y.3d 878, 884, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014], quoting United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 [1985] ). Here, the People admittedly failed to disclose a witness statement that could have aided the defense in attempting to impeach the only eyewitness to the shooting in question and that could have opened up an additional avenue of investigation. Indeed, the Court of Appeals recently reaffirmed that a defendant's inability to interview a potentially favorable witness because his existence was suppressed constitutes a Brady violation where the information gathered, "if true, would have directly contradicted the People's theory of the case" ( People v. Rong He, 34 N.Y.3d 956, 958, 112 N.Y.S.3d 1, 135 N.E.3d 1081 [2019] ). Moreover, here, in addition to the Brady violation, there were at least two other trial errors. While each of those errors may have individually withstood analysis under the harmless error doctrine, of overriding concern in appellate review of any jury verdict is whether the defendant received a trial that was fundamentally fair. Coupled with the People's failure to turn over the statement, it cannot be said in light of those errors that the goal of a fair trial was achieved. Accordingly, defendant is entitled to vacatur of his conviction pursuant to CPL 440.10 and a new trial.

Defendant was charged with murder in the second degree and criminal possession of a weapon in the second degree in connection with the November 14, 2011 shooting death of Archie Phillips in the parking lot of the Polo Grounds public housing complex. The principal item of evidence presented by the People was the eyewitness and identification testimony of Nicole Davis, who lived in the Polo Grounds. According to her testimony, a few minutes after 3:30 p.m. on the day of the shooting, Davis walked out of her building to socialize with friends near the parking lot next to a staircase that led up to the street (known locally as the "110–step staircase"). Davis saw Phillips standing 50 to 60 feet away, talking to and hugging a woman. Roughly one minute later, Davis saw defendant, wearing "all beige" clothes, a jacket, and a flat cap with a snap in front, walk up to Phillips, shoot him in the back four times, and then walk slowly to the 110–step staircase. Defendant looked Davis in the eye after he shot Phillips, and she recognized him as someone she had seen twice before. The first time was four or five months earlier, the prior summer, in the same parking lot. At that time, he was new to the neighborhood, and she and another friend watched him for about an hour while he was in the parking lot. The second time she saw him was one week before the shooting. Davis was walking out of her building as defendant was walking in, and Davis held the door for him. They exchanged greetings. Davis was "sure" that the man who shot Phillips was the same man she had seen on those two occasions.

Prior to trial, defendant had moved to suppress Davis's identification of him. Davis picked defendant out of a photo array several hours after the shooting and out of a lineup several weeks later. At a Wade hearing, Detective Jorge Morban testified that, before Davis viewed the photo array, he showed her a 40– to 50–minute surveillance video that did not show the shooting but that did depict various people in the vicinity of the Polo Grounds around the time of the shooting.

Morban testified that he told Davis to view the video, and that during the viewing "[s]he basically yells out, ‘that's him, that's him. He shot the boy in the Polo Ground." She also revealed that she had seen defendant twice before, once four or five months earlier, the prior summer, in the same parking lot, and a second time a week before the shooting, when she was walking out of her building and defendant was walking in. In response to questioning from the court, Morban admitted that as Davis was viewing the video he instructed her to let him know if she saw anyone wearing all brown, since the police were aware from 911 calls that the perpetrator had been dressed in brown. About 21 hours later, Morban showed Davis a six-person photo array. Morban asked if she recognized anyone, and Davis identified one of the photos, which was of defendant, as showing the shooter. About 1 1/2 months later, Davis viewed a six-person lineup. Morban told Davis that the suspect from the Polo Grounds shooting might or might not be in the lineup, and if she recognized him "from the photo array" or "[f]rom the shooting," she should state his number and from where she recognized him. Davis identified defendant as the person who did the shooting. The court denied the suppression motion. In addition, it admitted Davis's statement, "[t]hat's him," at trial as an excited utterance.

The People presented other witnesses (although not eyewitnesses) in addition to Davis, including John Reynolds, who testified pursuant to a cooperation agreement. Reynolds stated that, on the evening of November 11, 2011, Phillips assaulted him and stole his money, including drug sale proceeds, and his iPod and watch. Reynolds told Mike Lilly, a drug dealer he worked for, about the incident, and Lilly told him that Phillips had recently robbed another of Lilly's drug sellers, and that he was going to "send a clear message" to Phillips, and that Phillips was "out of here." Over the next several days, a period during which Reynolds was smoking marijuana "excessively," Lilly arranged for defendant to kill Phillips, and directed Reynolds to give defendant a gun and a cell phone that he could use to contact Lilly the next time he saw Phillips. Phone records introduced at trial confirmed that defendant had the phone beginning on November 13, 2011, because beginning on that date, the phone made and received calls from four numbers that defendant repeatedly called during later periods of incarceration at Rikers Island. Cell site and cell phone records showed that defendant used the phone from near the Polo Grounds during the afternoon on November 13, 2011.

On the day of the shooting, Lilly called Reynolds to tell him that he was coming over to get Reynolds's gun. Reynolds was not home, but he called his wife and told her to let Lilly into the apartment. That afternoon, while Reynolds was alone in the apartment, Lilly used his cell phone to call Reynolds at 3:23 p.m., 3:24 p.m., and 3:27 p.m., and told Reynolds that he was on the 155th Street Bridge, which overlooked the Polo Grounds, having spotted Phillips. At 3:28 p.m., Lilly called the phone that Reynolds's wife had given to defendant. Defendant answered, and the call lasted just under a minute. Cell phone records showed that both phones were in or near the Polo Grounds. At that time, Reynolds looked out of his window, which faced the 155th Street Bridge and the 110–step staircase, and he recognized defendant walking down the steps. He did not observe the shooting, but did see defendant run back up the stairs.

Reynolds further testified that he took a cab to Lilly's apartment after the shooting. Lilly told Reynolds, "[T]hat boy [is] out of here. He's gone." Defendant said, "You should have seen how I put five in [him]." Reynolds saw that Lilly had smashed the shells left in the gun, which was lying nearby. Defendant said they should scrape the inside of the barrel with a coat hanger "to get off the ballistics." Lilly later broke the gun and got rid of it. Reynolds learned that Lilly had paid defendant in crack cocaine and money to shoot Phillips. At a later time, Reynolds saw Lilly pay defendant "his last little bit of money." The People also elicited the testimony of Reynolds's wife, who was in the apartment the day after Reynolds was assaulted when he, Lilly and defendant were there. She testified that Reynolds went to retrieve a gun and the three men then spent time looking out a window for somebody. The next day the wife gave a cell phone she had to defendant, at her husband's direction. The following day, she testified, she was in the apartment when Reynolds called and instructed her to let Lilly into the apartment. She did, and she saw Lilly go into the bedroom, retrieve a gun and exit the apartment.

After defendant was apprehended, he made several recorded phone calls in which he acknowledged that he was on surveillance videos. Those surveillance videos, from two buildings on St. Nicholas Place between West 153rd Street and West 155th Street from around the time of the shooting, showed that, at approximately 3:42 p.m., defendant and Lilly walked along St. Nicholas Place, away from the 110–step staircase. Lilly walked in the street, with his right arm out, as if trying to hail a taxi. Defendant walked behind Lilly in the street, and then waited near the sidewalk, behind a car. The men were gesturing and seemed to be agitated or excited. They walked toward 153rd Street, and defendant kept a jacket over one hand, near his waist. Eventually, defendant caught up with Lilly, and both men ran across the street. At around 3:40 p.m., Morban and a police officer arrived in response to radio calls of gunshots fired in the Polo Grounds. Phillips was placed...