People v. Smart
| Decision Date | 01 May 2014 |
| Docket Number | No. 67.,67. |
| Citation | 23 N.Y.3d 213,2014 N.Y. Slip Op. 02972,989 N.Y.S.2d 631,12 N.E.3d 1061 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Floyd L. SMART, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Mark D. Funk, Rochester, for appellant.
Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), for respondent.
We hold that the record supports the findings of the courts below that defendant procured a witness's unavailability by
wrongdoing and thereby forfeited his constitutional entitlement to the exclusion of the witness's grand jury testimony at trial.
On the evening of October 3, 2008, defendant Floyd L. Smart, his associate Robert Verstreate and his girlfriend, whom we shall call Jane Doe, planned to burglarize a house in the Town of Greece. The three would-be burglars got into defendant's car to drive in search of a target, and Doe fell asleep in the back seat. As Doe would later tell a grand jury, she awoke to discover that the car was idling, sans defendant and Verstreate, in the driveway of an unoccupied house. Suddenly, the owner of
the house arrived, and Doe sounded the horn of defendant's car to alert defendant and Verstreate, whom she assumed to be inside, to the owner's return. Defendant and Verstreate emerged from the back of the house and came to the driveway, where they were confronted by the homeowner. When the homeowner questioned the two men about their presence on her property, they claimed that they were visiting a friend in the mistaken belief that he lived there. Defendant and Verstreate rejoined Doe in their car and drove away.
The homeowner then entered the house, where she discovered that her belongings had been displaced and that some of her jewelry was missing. The homeowner called the police, who eventually arrested defendant, Verstreate and Doe.
Doe cooperated with the authorities and testified before the grand jury, conveying the account of the burglary set forth above. Doe received full transactional immunity from prosecution concerning all criminal acts described in her testimony. Following Doe's testimony, the grand jurors indicted defendant and Verstreate on a charge of burglary in the second degree (see Penal Law § 140.25[2] ). Subsequently, Doe was released from police custody on bail, and she absconded.
On February 23, 2009, the People appeared in County Court and sought permission to admit Doe's grand jury testimony into evidence, alleging that defendant had forfeited his right to preclude the admission of that testimony by tampering with Doe. County Court held a hearing to determine the admissibility of Doe's grand jury testimony pursuant to People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817 (1995) and Matter of Holtzman v. Hellenbrand and Sirois (Sirois ), 92 A.D.2d 405, 460 N.Y.S.2d 591 (2d Dept.1983).
At the hearing, investigators from the local sheriff's department and the district attorney's office testified that Doe was a
drug addict with a history of prostitution, and as a result of criminal activities that were apparently unrelated to the instant case, four warrants had been issued for Doe's arrest. During the roughly two weeks between Doe's absconding and the start of the Sirois hearing, the investigators made extensive efforts to obtain Doe's appearance at trial. In particular, the investigators attempted to subpoena Doe at numerous addresses where she, her parents or her friends were known to have lived, and they called various telephone numbers associated with Doe and tried to learn her whereabouts from other police sources. However, the investigators' efforts proved unsuccessful, and Doe remained at large.
The People also put into evidence recordings of defendant's jailhouse telephone conversations which had occurred between Doe's disappearance and the hearing. The recordings showed that, on the day on which the investigators started searching for Doe, defendant called her and inquired as to whether she would testify against him at trial. When she suggested that she would do so, defendant stated, “I'm going to [w]ring you[r] fucking neck,” and Doe replied, “I got to get the fuck outta here.” Defendant responded, “[T]hat's a good idea.” Doe told defendant that she loved him, and he said, “[W]e will find that out at the last week of this month.”1 Later that day, defendant asked Doe, via telephone, why she was going to “give them [his] life” and “throw [his] life away.” Doe
answered, “[N]othing much I can do except not show up.”
In the recorded telephone calls, defendant also had conversations with his mother which revealed that his mother was watching over Doe at his behest. In some of those conversations, defendant expressed his belief that he would avoid conviction if Doe did not appear at trial, and he urged his mother to either send Doe to visit her own mother in another state or to drive Doe elsewhere. However, in a later call, defendant's mother reported that Doe had deserted her, leaving her unaware of Doe's whereabouts. At this, defendant berated his mother for failing to effectively chaperone Doe and remove her from the reach of the authorities, saying:
In a subsequent series of calls, defendant's mother stated that she was trying to contact Doe to “keep her off the streets until her mother g[o]t[ ] here,” and when defendant asked whether Doe was going to appear at trial, defendant's mother indicated that Doe might not appear. However, defendant's mother “[did]n't wanna say” more on that subject “over the phone.” In telephone conversations in the days leading up to the hearing, defendant expressed his belief that Doe would testify against him at trial and said that he no longer cared whether she showed up in court. Defendant's mother told him that Doe was “laying low so they c[ould]n't summons her,” but defendant insisted that Doe would appear because she was working with the authorities.
The People presented most of the recorded telephone conversations and other evidence on the first day of the hearing. On the morning of the second day of the hearing, defense counsel announced that Doe was once again in police custody.2 Defense counsel asserted that Doe was now available to testify at trial and that therefore her grand jury testimony could not be used against defendant. The prosecutor, apparently learning of this development for the first time, expressed skepticism about the timing of Doe's return to police custody, noting that it was “very coincidental given the fact that [the parties] were in the middle of a hearing” about “the possibility of her Grand Jury testimony being used against the defendant.” At the prosecutor's urging,
the court continued the Sirois hearing, stating that Doe might still refuse to testify and that, “if the Court d[id] find by clear and convincing evidence that [defendant] [wa]s responsible for that, then [the court] w[ould] deal with it at that time.” The hearing resumed and the People presented the remainder of their evidence.
Later at the hearing, Doe's attorney appeared in court. According to Doe's counsel, she had told him that she would assert
her Fifth Amendment privilege against self-incrimination and refuse to testify at defendant's trial. Counsel initially suggested that Doe wanted to avoid testifying because she had not received immunity from any perjury prosecution that might arise as a result of her testimony at the hearing and at trial. Doe's lawyer noted, however, that his client's stance was puzzling in light of the immunity she had received with respect to the serious burglary charges in this case, and that Doe might not fully understand the implications of her choice. Doe's counsel explained that she had “made adamantly clear to [counsel] she ha[d] no intention of testifying,” adding, “[I]mmunity, no immunity, whichever, she does[,] she does not intend to testify.” Doe's attorney later reiterated that she had “repeatedly made clear her intention to not offer any testimony no matter what is it [sic] said to her by anybody.” Doe did not appear in court to explain her refusal to testify, and the parties agreed to allow Doe's counsel to leave the courtroom without further inquiry.
After hearing extensive argument from the parties regarding whether the People had proved that defendant had wrongfully procured Doe's unavailability by coercing her into invoking her Fifth Amendment privilege, the court granted the People's motion to admit Doe's grand jury testimony into evidence at trial. After summarizing the hearing testimony and the telephone calls, the court found that defendant, “acting in concert with his mother[,] pressured the witness's unavailability up to today through threats and chicanery, among other things, encouraging his mother to keep [Doe] away from trial.” Commenting on one of the recorded telephone conversations between defendant and Doe, the court said, “Obviously, [this shows] the influence of the defendant on this woman.” The court noted: The court concluded that the People had more than carried their burden at the hearing, saying, “The Court finds this is beyond a reasonable doubt.” At the end of the Sirois hearing, the court
granted codefendant Verstreate's severance motion and...
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