People v. Parker

• Decision Date: 13 March 2008
• Docket Number: 16174.
• Citation: 854 N.Y.S.2d 233,49 A.D.3d 974,2008 NY Slip Op 02054
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. VERNON E. PARKER, JR., Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 974

854 N.Y.S.2d 233

2008 NY Slip Op 02054

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.VERNON E. PARKER, JR., Appellant.

16174.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 13, 2008.

Appeal from a judgment of the County Court of Broome County(Smith, J.), rendered March 31, 2005, upon a verdict convicting defendant of the crime of murder in the first degree (three counts) and burglary in the first degree.

Carpinello, J.

Defendant and codefendant Robert Williams were charged with unlawfully entering the home of defendant's mother-in-law shortly past 11:00 P.M. on July 20, 2002 and fatally shooting her and her 14-year-old daughter.At the time, defendant resided in Maryland with his wife and the victims lived in the City of Binghamton, Broome County.Both victims were scheduled to testify against defendant in an upcoming criminal trial in Maryland stemming from allegations that he sexually assaulted the teenage victim.

The People initially sought the death penalty in this case and, therefore, jury selection proceeded as if this were a capital prosecution.In the midst of jury selection, however, the death penalty was declared unconstitutional (seePeople v LaValle,3 NY3d 88[2004]).While County Court ultimately discharged the 25 jurors who were found to be qualified to serve at that point, it did not discharge the remaining 300 members of the jury panel who had yet to go through individual voir dire, and a new jury was empanelled from these members.Following a lengthy trial wherein the People presented compelling evidence establishing that defendant and Williams traveled from Maryland to Binghamton in a rental car, forced the victims into their basement and shot them multiple times as they lay holding hands on the floor, defendant was found guilty of three counts of murder in the first degree and one count of burglary in the first degree.¹Sentenced to life imprisonment without the possibility of parole, defendant appeals.Finding no merit to any of the contentions raised on appeal, we now affirm.

Defendant argues that his oral statement to police the morning after the murders should have been suppressed because it was the result of a warrantless arrest in the absence of probable cause.We are unpersuaded.At around 6:30 A.M. on the morning following the murders, three Baltimore County police officers went to defendant's home at the direction of a supervisor to ensure that defendant's wife was safe and to locate him.At this early point in the investigation, the involved police agencies knew that two members of defendant's family had been executed and that defendant had been immediately named by other family members as being involved because he had previously threatened to kill his wife and her family amid significant domestic strife.

This information provided the Baltimore County police with a reasonable suspicion that defendant, in accordance with these previously-made threats, might be involved in the double murders and might also pose an immediate threat to his wife (seePeople v Batista,88 NY2d 650, 654[1996]).Police suspicions were then heightened by the odd behavior of defendant's wife that morning.Even though the police told her that they were at her home at that early hour out of concerns for her safety, she repeatedly closed the front door on them and refused a request to let them step inside.These circumstances justified one officer's conduct, when defendant finally emerged from the house, in immediately handcuffing him and then conducting a protective frisk (seeid.;People v Foster,85 NY2d 1012[1995];People v Allen,73 NY2d 378, 379-380[1989];People v Perez,293 AD2d 329, 329-330[2002], lv denied98 NY2d 679[2002];People v Dluhy,288 AD2d 693[2001], lv denied97 NY2d 728[2002], cert denied537 US 978[2002]).

Moreover, it is undisputed that defendant was advised that he was not under arrest and that the handcuffs were merely a protective measure and would be removed in short order.It is also undisputed that defendant was asked if he would be willing to answer questions at the police station about an incident involving another police agency and he indicated that he would.He was then placed inside a patrol car.Notably, as promised, the handcuffs were removed within 10 minutes.At this time, defendant was again asked, and again voluntarily agreed, to go to the police station for questioning about an incident in Binghamton.No questioning about the murders took place until after defendant had been fully advised of his Miranda rights at the police station and he waived them.²Under these circumstances, we are unable to conclude that the investigative detention was transformed into an arrest in the absence of probable cause such that defendant's oral statement, or any evidence obtained as a result of it, should have been suppressed (seePeople v Allen, supra;People v Williams,305 AD2d 804, 807[2003];People v Dluhy, supra;see alsoPeople v Martinez,39 AD3d 1159, 1160[2007], lv denied9 NY3d 867[2007]).

Defendant next argues that County Court should have discharged the entire jury pool when, in the course of jury selection, the death penalty was found to be unconstitutional.Following the Court of Appeals' decision declaring the death penalty to be unconstitutional, jury selection was temporarily suspended.When it resumed two months later, County Court notified the jury panel of the change in the law and the concomitant change in the tenor of this case.The court specifically inquired if any prospective juror was unable to follow the law as changed or to be fair and impartial.None of the prospective jurors expressed such inability.Thereafter, at several points throughout the two-day period it took to select the jury, additional inquiries were posed to various panels concerning whether the change in the law affected any prospective juror's view of the case or ability to serve as a fair and impartial juror.Again, none of the prospective jurors expressed a changed view of the case or an inability to be fair and impartial.

We thus find that County Court properly exercised its discretion in declining to dismiss the entire jury pool (see generallyPeople v Wells,7 NY3d 51, 59-60[2006];People v Cruz,292 AD2d 175, 176[2002], lv denied98 NY2d 696[2002];People v Scott,276 AD2d 371, 372[2000], lv denied95 NY2d 968[2000];cf.People v Purcell,103 AD2d 938, 939[1984]).In short, despite the unusual turn of events in the midst of jury selection, the voir dire record refutes defendant's claim that the change in law tainted the remaining members of the jury panel so as to deprive him of a fair trial and further refutes the notion that anything other than a fair and impartial jury was selected (see generallyPeople v Ramirez,23 AD3d 500[2005], lv denied6 NY3d 817[2006];People v Cruz, supra;People v Miller,239 AD2d 787, 790[1997], affd91 NY2d 372[1998];People v Solis,173 AD2d 1089[1991], lvs denied78 NY2d 974, 1081[1991]).To the extent that defendant also claims that numerous prospective jurors were excused "for no legal reason," relying on Hildreth v City of Troy(101 NY 234[1886]), we find this argument to be patently without merit since these challenged jurors were dismissed because of their views concerning the death penalty (seeCPL 270.20 [1][f]) at a time when same had yet to be declared unconstitutional (cf.Hildreth v City of Troy, supra).

Next, we find that defendant failed to make a prima facie case of purposeful discrimination by the People's use of a peremptory challenge against an African-American prospective juror (seeBatson v Kentucky,476 US 79[1986];People v Childress,81 NY2d 263, 266-268[1993]) and, therefore, the burden never shifted to the People to respond with a race neutral explanation for it (seePeople v Wells,7 NY3d at 58;People v Beverly,6 AD3d 874, 875-876[2004], lv denied3 NY3d 637[2004]).In any event, even assuming a prima facie showing, the record supports County Court's finding that the People indeed provided a race neutral explanation for the challenged juror—which pertained to her demeanor during an exchange about stipends (seePeople v Wells, supra)—and this finding is entitled to great deference by this Court(seePeople v Hernandez,75 NY2d 350, 356[1990], affd500 US 352[1991]).

Next, no testimony of defendant's wife at trial violated the marital privilege (seeCPLR 4502 [b];CPL 60.10).First, statements made by defendant to his wife concerning his plans and activities on the evening of the murders were nothing more than "daily and ordinary exchanges between the spouses" unprotected by the marital privilege (People v Melski,10 NY2d 78, 80[1961];seePeople v O'Dell,36 AD2d 774[1971];People v LaPlanche,193 AD2d 1062, 1063[1993], lv denied82 NY2d 756[1993]) and were, in any event, essentially repeated to the Baltimore County police lieutenant who interviewed him (seeMatter of Vanderbilt [Rosner—Hickey],57 NY2d 66, 74[1982];People v Weeks,15 AD3d 845, 846[2005], lv denied4 NY3d 892[2005]).Moreover, defendant's conduct in pulling out a gun and simultaneously directing his wife "to get down" when she otherwise wanted to open the door to the Baltimore police when they first knocked on the door within hours of the...