People v. Smith

• Decision Date: 20 January 1994
• Citation: 606 N.Y.S.2d 656,195 A.D.2d 112
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard SMITH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 656

606 N.Y.S.2d 656

195 A.D.2d 112

The PEOPLE of the State of New York, Respondent, v. Richard SMITH, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 20, 1994.

Miriam J. Hibel, of counsel (Philip L. Weinstein, attorney) for defendant-appellant.

Kathleen E. Fay, of counsel (Donald J. Siewert, with her on the brief, Robert M. Morgenthau, Dist. Atty., attorney) for respondent.

Before MURPHY, P.J., and WALLACH, KUPFERMAN and ASCH, JJ.

ASCH, Justice.

The issue before us is whether declarations against penal interest of a third party, which tended to exculpate the defendant Smith, should have been admitted into evidence. A necessary prerequisite for determination of such an issue is a familiarity with the underlying facts, and so, we set them forth in substantial detail.

At trial, Claudia Johnson testified that on January 24, 1991, she and her husband, Kirk Barrett, lived on East 129th Street in Manhattan. At approximately 8:00 p.m., Johnson was walking home along the north side of 129th Street, approaching Fifth Avenue. As the witness crossed the street toward a bodega located on the south side of the street, she heard two men arguing in front of the bodega. She looked over to see defendant (described as a light-skinned black man wearing a green army jacket and hat) arguing with a dark-skinned Jamaican man wearing dreadlocks (later identified as Donald Davis, the victim herein). The defendant was waving his hands and saying "You know what's up. You know, that's my people". Davis spoke at a normal tone and Johnson could not hear what he said. As Johnson neared the two men, Davis began to walk toward Lenox Avenue. Defendant then ran toward the bodega and took off his jacket. Defendant came out of the bodega and followed Davis, calling "Yo, what's up?" Davis turned and walked toward defendant, who shot Davis "in his head" from about eight feet away. Johnson testified Davis fell on his side, facing defendant and when he tried to get up, defendant shot him again, in the upper body, from about seven feet away. Ms. Johnson saw defendant run off toward 130th Street, but she stayed at the scene and talked with her friend Ivory, as well as with others. The witness also testified she talked with "some of my friends that seen it happen, too".

Ms. Johnson testified further that at that point she saw her husband, Kirk Barrett, on the opposite side of the street, being frisked by the police. (He was not arrested). Although Ms. Johnson was approached by Det. Clark, she did not speak with him on the street. However, she made a statement the next day at the local precinct, and identified defendant, who was number six, in a lineup on January 30, 1991 (6 days after the shooting). Johnson had seen the defendant for the past year about three times a week in the neighborhood, mainly at the bodega on the corner of 129th Street and Lenox Avenue which was his "hangout".

Kirk Barrett, who had been arrested three times for assaulting Ms. Johnson, testified that at the time in question, he was looking for his wife in the area of 129th Street near Fifth Avenue. He arrived at the corner at the time defendant was calling out to the victim. He, too, identified defendant in court and in a lineup on January 30, 1991 as the shooter of Mr. Davis, the man with the dreadlocks. Barrett (unlike his wife) had never seen defendant before the day of the shooting. When defendant ran from the scene of the shooting, Barrett followed him towards Fifth Avenue, then toward the projects near 131st Street. He gave up the chase and returned to the scene. He was approached by a police officer and when his wife came over, they went home.

Barrett testified that he spoke to his wife that night about the shooting and they had discussed it as well during the trial both before and after her testimony. As noted he had identified defendant who was number six in the lineup and in court, although he had never previously seen him. He also testified that he did not know Robert Skinner or anyone named "Speedy" or "Speedo". Then, shown defendant's Exhibit A, a photograph of Skinner, defendant's brother, the witness first said that he did not know "the gentleman" depicted in the photograph and had never seen him before, but immediately thereafter, said he had seen Skinner before. In fact, the court interjected "You have seen that person before? [referring to the photograph of Skinner]" and then to make the question clear, the court rephrased "Before today have you ever seen that man? Take a good look." Barrett then testified he had seen the man in the photo [Skinner] "in the precinct" on January 30, 1991 [the date of the lineup]. During further questioning of the witness regarding defendant's Exh. A for identification, the witness said that the person in the photo was Number 6 in the lineup (which was defendant Smith's number) and that the photo was, indeed, that of "Mr. Smith".

On re-direct, Mr. Barrett was again shown defendant's Exh. A for identification and asked if that was a picture of defendant. The witness first said "Yes, that's the gentleman," then in response to the question "You are trying to tell us that the same picture, the same guy? (sic)", said, "No, he has put on some weight". Again, when asked, "The picture I just showed you, now, do you recognize who was in that picture?", and after what the court reporter termed a "Long Pause" said he recognized him. When asked if it was a picture of the defendant, Mr. Barrett once more said "Yeah, this is him." Then, when shown a picture of defendant (People's Exhibit 5 for identification) along with a picture of Skinner (defendant's Exh. A for identification), the witness said, in response to further repeated (and leading) questioning by the prosecutor, that the pictures were of two different people and that defendant, in People's Exhibit 5, was the shooter, not the person in defendant's Exhibit A (Skinner).

Det. Clark testified that he arrived at the scene shortly after the shooting, at about 8:30 p.m. He confirmed that he spoke briefly with Ms. Johnson at the scene, but did not get a description of the shooter from her, at that time. The next day, he conducted full interviews with Ms. Johnson and Mr. Barrett. He did not ask her to detail the shooter's features, since she said she was familiar with the shooter. However, in a statement she gave him, which he wrote down "as she spoke them", she did not indicate in the statement that she had seen the perpetrator prior to the night of the shooting. He also confirmed that People's Exhibit 5 for identification was a photograph of defendant taken by the officer upon defendant's arrest and was an accurate representation of defendant's appearance at the time. Detective Clark also identified defendant's Exh. A for identification as a photograph of Robert Skinner, a/k/a "Speedy", or "Speedo" (entered into evidence as defendant's Exh. A). Det. Clark also testified that Ms. Johnson had told him at the scene that she had seen the shooter prior to that date. Although the detective had interviewed people in the bodega, he never recovered a green jacket or a gun.

At the outset of the trial, the defense had advised the court of the defense theory that the slaying was drug-related, and that a paper found on the victim, Donald Davis, contained the name of "Speedo", the nickname of Robert Skinner, defendant's brother, who was the person in defendant's Exhibit A. The defense noted that witnesses would testify that Skinner had confessed to killing Davis.

The court, however, sustained objection to defense counsel's attempted questioning of Det. Clark regarding whether Skinner's name and beeper number were found on a paper recovered from the victim and whether or not the police contacted Skinner. An in camera conference was called during which defense counsel made an offer of proof that Skinner, (a/k/a Speedo), was contacted by the police because his name and beeper number were found on the victim and that Skinner implicated defendant (his brother) in this case. The court ruled that whether or not the police contacted Speedo was not relevant at that time but, should defendant offer evidence that Speedo, indeed, had committed the crime, inquiry as to details would be permitted.

Defense counsel then elicited from Det. Clark that he recovered a telephone number from a piece of paper found on the victim; that Speedo was arrested along with defendant on January 30, 1991, but was released the next day and was never placed in a lineup in connection with this case; and that although he observed "some narcotic material" (which appeared to the officer to be crack cocaine) on the sidewalk in the area where the victim had been shot, the officer recognized no connection between this case and that crack cocaine.

Defense counsel made a renewed offer of proof that, if he did not invoke his Fifth Amendment privilege, Skinner would testify that he shot Davis because Davis had smoked crack he was supposed to sell for Skinner; that Skinner admitted to "a number of people" that he shot the victim herein; that he had pulled a gun on defendant Smith on at least one occasion in the past; that his jealousy of defendant prevented him from confessing to the police; that his name and beeper number led the police to him; and that he was instrumental in the arrest of defendant and received $100 from the police for his assistance in leading them to defendant. Thereafter, Skinner was brought into the courtroom (outside of the jury's presence) and, at first, denied knowing Davis or even being nicknamed "Speedo" or "Speedy". However, after conferring with his attorney, and asked the same questions, he invoked his Fifth Amendment right not to answer any question connected with this case. The court then exercised its discretion in denying defense counsel's request that Skinner be called as a witness for the purpose of invoking his Fifth Amendment privilege (People v....