People v. Smalls
| Decision Date | 06 April 1982 |
| Citation | 434 N.E.2d 1063,449 N.Y.S.2d 696,55 N.Y.2d 407 |
| Parties | , 434 N.E.2d 1063 The PEOPLE of the State of New York, Respondent, v. Leonard SMALLS, Appellant. The PEOPLE of the State of New York, Respondent, v. Anthony De Shawn McGEE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Defendants Smalls and McGee appeal from separate orders of the Appellate Division, People v. Smalls, 80 A.D.2d 446, 438 N.Y.S.2d 1015; People v. McGee, 81 A.D.2d 1046, 439 N.Y.S.2d 786, affirming their convictions, after a joint trial, of murder in the second degree (Penal Law, § 125.25, subd. 3). We conclude that the conviction of defendant Smalls must be reversed, as error was committed as to him both in the admission of the codefendant McGee's confession on this joint trial and in charging the jury regarding the presumption of intent. While this error in the charge was also committed as against defendant McGee, we hold that under the circumstances of this case, the error was harmless. As we find defendant McGee's other contentions to be without merit, his conviction should be affirmed.
The two defendants were indicted on January 28, 1977, for the crimes of murder in the second degree and attempted robbery in the first degree. Mary Jenkins, who testified at the trial on behalf of the prosecution was likewise indicted, but pleaded guilty to the attempted robbery charge in satisfaction of the indictment. The indictments arose from an incident occurring on December 7, 1976, during which Mary Jenkins, Phillip Green, defendant Anthony McGee and defendant Leonard Smalls allegedly attempted a robbery of the apartment of Pedro Pratt. During the course of the attempted robbery, Pratt was shot, receiving head wounds from which he died a few days later.
Three weeks after this incident, McGee was taken into custody. After being read his Miranda rights, McGee made a statement to a detective, which was reduced to writing and signed by McGee. McGee later made substantially the same statement to an Assistant District Attorney, which was stenographically recorded. The essence of these statements is that McGee had agreed with Green on a plan to make money. On their way to Jenkins' house they met a "guy" named "Lenny" (in the handwritten statement, this "guy" was referred to as someone whose name began with an "L"), and told him what they planned to do. The planning of the robbery took place between Jenkins, Green and McGee, although "Lenny" was present for part of the discussion. McGee indicated that after the three men forced their way into Pratt's apartment, McGee pointed his gun at Pratt, and although he never intended to harm anyone, Pratt lunged at McGee, hitting the arm holding the pistol. The pistol had a "hair trigger" and went off; Pratt fell to the floor. McGee left immediately and went home where he stayed all night. "Lenny" also left immediately after the shooting.
About two weeks later, Smalls was also apprehended. Having been read his Miranda rights, Smalls made a statement (which he eventually refused to sign), in which he discussed his involvement in the events leading up to the robbery and shooting of Pratt. Smalls made another oral statement to the Assistant District Attorney, which was ultimately suppressed. In his first oral statement, Smalls indicated that he was with McGee and Green on the night of the crimes and went with them to the Jenkins apartment. At one point, he asked Green "what was happening", to which Green responded that they were "going to do it now". The essence of Smalls' statement is that he was present during the planning and execution of the robbery, and was present during the shooting, but nowhere does he indicate that he was aware of what was taking place or that he intended to take part in the robbery. Indeed, while his statement corroborates many of the details of the events leading to the robbery and shooting, it does not speak directly to the criminal aspects of the robbery, nor did Smalls in any way indicate that he actively or knowingly participated in any of these events.
Smalls' pretrial motion to sever his trial from that of McGee's was denied. Both defendants moved to suppress their pretrial statements. Smalls' motion to suppress was granted to the extent of suppressing his second oral statement because the Assistant District Attorney had not given him a new set of Miranda warnings before questioning him. McGee's motion to suppress his statements was denied.
Smalls then renewed his motion to sever his trial, on the ground that the introduction of McGee's pretrial statements would prejudice Smalls, since Smalls was implicated in those statements as a participant in the robbery, while Smalls' pretrial statement merely placed him at the scene and did not implicate him directly. The motion was denied, the court noting that the portions of McGee's statements implicating Smalls might be redacted to eliminate such references. Smalls' counsel and the prosecutor did agree as to which portions of McGee's statements should be redacted (which were subsequently ordered redacted by the court), although Smalls' counsel continued to object to the entire procedure. Despite this attempt at redaction, references to Smalls' guilty knowledge of the robbery were not entirely eliminated.
The evidence at trial, in addition to the statements of the two defendants, consisted primarily of the testimony of Mary Jenkins who had participated in the planning of the robbery (but, according to her, not in its execution), and two members of the Pratt family and a friend of the deceased, who were present during the course of the robbery and shooting. Jenkins' testimony describes McGee as an active participant in the planning of the robbery; however, the only reference to Smalls' participation is that during the planning, he sat with his head down, nodding, and his eyes closed. Smalls' only comment during the discussion was that he "wasn't too high to go along with it, that he wanted to go anyway". Jenkins' testimony indicates that she was not present during the subsequent robbery and shooting. Shortly afterward, however, Mc Geetold her that he had had to shoot Pratt. Sometime later, McGee told Jenkins that he was a "marksman" and had shot Pratt "directly between the eyes".
Edward Tyler, a friend of the deceased, and present during the robbery, testified that three men approached him in the hallway of the apartment building, each holding a pistol. One gunman placed a pistol to Tyler's head, while one of the others pushed open the apartment door and aimed a pistol at Pratt. Tyler was forced into the bathroom by the gunman who first approached him, and stayed there until he heard a shot from the other room. When asked if he saw the gunmen in the courtroom, Tyler responded that Smalls "looks like the man".
Pratt's mother, who was present during the shooting, testified that the man who was pointing a gun at Pratt shot him after demanding money. Pratt's mother and a brother who was also present were unable to identify either of the two defendants as the gunmen. Tyler and the Pratts also testified to the completion of the robbery, indicating that the gunmen continued their efforts to obtain money after Pratt had been shot.
Neither defendant testified or presented any witnesses on his own behalf. Both defendants were convicted of felony murder. These convictions were separately affirmed by the Appellate Division. We now reverse the conviction of defendant Smalls, and affirm the conviction of defendant McGee.
The first issue raised on this appeal involves the propriety of admitting McGee's confession on the joint trial of these two defendants, despite the fact that McGee never took the stand and thus did not become available for cross-examination. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court reversed the conviction of a defendant who had been implicated in the crime by the extrajudicial confession of his codefendant....
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