People v. Pitts

• Decision Date: 17 February 1987
• Citation: 127 A.D.2d 499,511 N.Y.S.2d 853
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas PITTS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 853

511 N.Y.S.2d 853

127 A.D.2d 499

The PEOPLE of the State of New York, Respondent, v. Thomas PITTS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 17, 1987.

E.J. Ostrow, M. Dwyer, New York City, for respondent.

A.C. Fine, M. Rosenberg, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, CARRO, ASCH and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Clifford A. Scott, J. at jury trial and sentence), rendered June 26, 1984, which convicted defendant of two counts of murder in the second degree (intentional murder), two counts of murder in the second degree (felony murder), robbery in the first degree, burglary in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and sentenced him to four terms of twenty-five (25) years to life, four terms of twelve and one-half (12 1/2) to twenty-five (25) years, one term of five (5) to fifteen (15) years, all to run concurrently, modified, on the law, the convictions on the two counts of intentional murder reversed and to that extent the matter is remanded for a new trial, and, as modified, otherwise affirmed.

Defendant Thomas Pitts and his codefendants Jeffrey (Stevie) Waldo and Tyrone Jones were jointly indicted, tried, and convicted of two counts of second degree intentional murder, two counts of second degree felony murder, and other crimes committed during the robbery of Alfonzo Randolph, a narcotics dealer, and Ernest Davis, his overnight guest, in Randolph's Manhattan apartment the night of December 10, 1982. Defendant and his codefendants each gave written and videotaped confessions to the police, describing the events of that night, largely agreeing on how the crimes were committed but diverging, not surprisingly, as to the various roles each assumed. Both Waldo and Jones implicated defendant as the one who shot Randolph and Davis. Defendants' confessions indicated that he initially acted as the "lookout", entered the apartment, searched the refrigerator, and was at least present when Randolph, the second victim, was shot. Defendant's motion for a severance was denied and these confessions were admitted into evidence at the trial, with limiting instructions.

At the outset, the People concede, as they must, that since the non-testifying codefendants' confessions accused defendant of personally shooting the victims, their admission into evidence at trial violated defendant's Sixth Amendment right to confrontation of witnesses and entitles him to a reversal of the intentional murder convictions and a new trial on those counts. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); People v. Smalls, 55 N.Y.2d 407, 415, 449 N.Y.S.2d 696, 434 N.E.2d 1063 (1982). The rationale for the Bruton rule is that "a confession that incriminates an accomplice is so 'inevitably suspect' and 'devastating' that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied. Bruton v. United States, 391 US 123, 136 [88 S.Ct. 1620, 1628, 20 L.Ed.2d 476]." Lee v. Illinois, supra, ---, 106 S.Ct. at 2063. On this appeal we are called upon to decide whether the evidence is legally sufficient to sustain defendant's indictment for the charges of intentional murder, and, as to the felony murder and non-homicide charges, whether the admission of the codefendants' confessions violated defendant's right to confrontation or tainted the fairness of the trial, entitling him to reversal and a new trial on those charges.

At about 5:30 A.M., a neighbor looked inside the open door of Alfonzo Randolph's apartment and saw his body on the bed with his hands bound and what looked like a towel around his head. The body of Ernest Davis was on the floor, blocking the door. Both victims had apparently been shot in the head at close range through a pillow, Randolph once, Davis twice. During the subsequent police investigation Jeffrey Waldo surfaced as a prime suspect. Police lured Waldo to the 120th Precinct in Staten Island. Waldo arrived with his friend, codefendant Tyrone Jones. Both were questioned separately and ultimately made written and videotaped confessions. In his written statement, Waldo indicated that on December 10, 1982, at about 9:30 P.M., he, defendant, and Jones went to 117th Street and Manhattan Avenue where Al (Randolph) lived. Al looked out the window, and threw the key down to Waldo, who went upstairs. Waldo bought drugs from Al, then he, defendant, and Jones "got high."

Later, defendant suggested that they go back to Al's apartment to rob Al, who was a narcotics dealer and had a lot of money. They returned to Al's building at about 11:30 P.M. Al threw the key down to defendant after another man, whom defendant knew from Clinton, said it was okay. Waldo and Jones, both of whom had been hiding in the hallway, went upstairs with defendant.

Inside the apartment, after Waldo asked Al for drugs, defendant took out a small automatic and pushed Al on the bed. Jones tied Al with a telephone cord, and defendant tied up the other man. In the meantime, Waldo found $750 and two quarter bags of drugs. As they were about to leave, defendant said that he "knew the dude from jail." Defendant put a pillow over Al's head and shot him once, then shot the other man twice through a pillow. They went back to Staten Island and divided the proceeds so that each received $250 and some drugs. The only essential difference in the scenario recounted by Jones was that Jones referred to the third person as "T", and omitted to mention Waldo's initial drug purchase from Raldolph. He said that when they were in the apartment, "T" told him to tie up the old man, and Stevie looked for money. "T" kept saying "I know the dude, I know the dude", then Jones says "T" shoot the man who was near the door through a pillow. Afterwards, "T", said he had to shoot the man because he knew where "T" lived.

In his videotaped statement Waldo added that Al Randolph recognized him when he threw him the key prior to the drug transaction earlier that night. Jones added, in his videotaped statement, that when they all went to rob Al, "T" looked around Al's apartment as if he knew where everything was. Jones also said that after the robbery, "T" sat in the front of the car, playing with the gun, "laughing and you know smilin' about it. I look, what the hell's going on you, what's going on, is he buggin' out or what."

Defendant was apprehended as a result of a trap Waldo set for his capture. A detective shot defendant, wounding him in the arm, when, on her command not to move, he appeared to reach for a gun. Although defendant ran and escaped, he was found in a nearby building and taken to a hospital, where he was treated by physicians, and given medication to alleviate his pain. When police first advised defendant that Waldo and Jones had implicated him in the murders of Randolph and Davis, he declined to make a statement. His mother's brief visit with him at the 120th Precinct in Staten Island apparently upset him. Later, during the drive to the 26th Precinct in Manhattan where he was being transferred, he volunteered to talk. He gave an oral confession after receiving Miranda warnings. Upon arriving at the 26th Precinct, eating, and taking pain medication, and after the Miranda warnings were repeated, at about 1:30 P.M., defendant agreed to reduce the oral statement to writing.

Defendant's written statement was as follows:

On 12/10/82, at approximately 7:30 p.m. I was present at my sister Arlene Tillman's house, 280 Park Hill Avenue, Staten Island, apartment 2N. At about 8:00 p.m., Stevie Waldo, who is my sister's boyfriend, came into the house. Tyrone, last name unknown, who was a friend of Stevie's came into the house with me about 7:30 p.m. After a short while, Stevie goes in one of the rooms and comes out with a .25 caliber automatic and a shotgun. He gives the shotgun to Tyrone and puts the pistol in his pocket. At this time I asked Stevie what's with the guns, and he says me and Tyrone is going to do something and we want you to look out. I said, all right, since I don't have to do anything. At about 9:00 p.m., Stevie, Tyrone and I leave my sister's house in a gray Chevy that Stevie borrowed from someone. We then go to Queens and Stevie goes to some store to pick up some money while Tyrone and I wait in the car. At about 10:15 p.m., we leave Queens and go to 96th Street and FDR Drive to kill some time. After a short while, we had up 116th Street and Harlem and Stevie stops the car and makes a phone call. Stevie then parks the car and Tyrone gets out and goes into a building. Stevie tells me to stand on the corner and look for anybody who comes into the building. Stevie looks up to a second floor...