People v. Sweeper

• Decision Date: 05 January 1984
• Parties: The PEOPLE of the State of New York v. Nathaniel SWEEPER, Defendant.
• Court: New York Supreme Court

Page 486

471 N.Y.S.2d 486

122 Misc.2d 386

The PEOPLE of the State of New York v. Nathaniel SWEEPER, Defendant.

Supreme Court, New York County Part 54.

Jan. 5, 1984.

Robert M. Morgenthau, Dist. Atty. Stephen E. Saracco, Asst. Dist. Atty., New York City, for the People.

James M. Merberg, Law Offices of F. Lee Bailey, Boston, Mass., for defendant.

MYRIAM J. ALTMAN, Justice:

Jury selection in this homicide prosecution was completed on November 14, 1983, with testimony scheduled to commence the following morning. Later that day the key prosecution witness, Bobby Edmonds, was murdered. The People consequently seek the admission of Mr. Edmonds' Grand Jury testimony. The defendant contends that such admission would deprive him of his Sixth Amendment right of confrontation.

The Sixth Amendment of the Constitution of the United States provides that, in a criminal trial, a defendant has the right to confront the witnesses against him. The Grand Jury testimony of an unavailable prosecution witness is accordingly inadmissible at trial because the defendant is precluded from cross-examining that witness with respect to his or her testimony. The right to cross-examine, which is implicit in the right of confrontation, is of course, an important tool with which to test the reliability of evidence (United States v. Thevis, 665 F.2d 616 (5th Cir.1982), cert. den. 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982)).

Recent decisions of both Federal and State courts have held that under certain circumstances a defendant may, by his own misconduct, waive his right to confront witnesses. Such a waiver is based upon the policy consideration that the law will not permit a person to take advantage of his or her own wrongdoing (United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982)). "Thus, if a witness' silence is procured by the defendant himself, whether by chicanery * * * by threats * * * or by actual violence or murder * * * the defendant cannot then assert his confrontation clause rights in order to prevent prior grand jury testimony of that witness from being admitted against him. Any other result would mock the very system of justice the confrontation clause was designed to protect" ( United States v. Mastrangelo, supra, pp. 272-273). A defendant who engages in such misconduct is aware that the witness will consequently be unavailable for cross-examination and has intelligently and knowingly waived the right of confrontation, as well as any objection to the hearsay nature of the testimony (United States v. Thevis, supra; Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591). Thus here, if the defendant was involved in the murder of the witness "through knowledge, complicity, planning or in any other way," he has waived his objections to the admissibility of the Grand Jury testimony (see United States v. Mastrangelo, supra, p. 273).

With regard to a prosecution claim of a waiver of the right of confrontation, an evidentiary hearing should be held when "the People allege specific facts which demonstrate a 'distinct possibility' * * * that a criminal defendant's misconduct has induced a witness' unlawful refusal to testify at trial or has caused the witness' disappearance or demise" (Matter of Holtzman v. Hellenbrand, supra, p. 415, 460 N.Y.S.2d 591). Here, as a result of a showing by the People of a factual basis which distinctly suggested that the defendant had been involved in the death of the witness, I held an extended evidentiary hearing. At that hearing hearsay evidence was received. In this regard I analogized the proceeding to a suppression hearing as the question to be determined is the ultimate admissibility of evidence at trial (see CPL 710.60, subd. 4; United States v. Mastrangelo supra; see also Fed.Rules Evid., U.S.Code, tit. 28, rule 104, subd. [a] ).

As to the burden of proof at the hearing, the cases are uniform only in rejecting "reasonable doubt" as the proper standard. In Mastrangelo the Second Circuit applied the "preponderance of the evidence" test, while the Fifth Circuit (Thevis ) and the Appellate Division, Second Department (Matter of Holtzman v. Hellenbrand ) suggest that it is the "clear and convincing" standard which should apply.

Under the circumstances of this case, I find that the clear and convincing test is the appropriate standard to be applied at this hearing. The reliability of testimony goes to the very heart of the fact-finding process, particularly here, where the proffered evidence will probably constitute the entirety of that portion of the prosecution's case which connects the defendant to the murder. Consequently, the People must prove, by clear and convincing evidence, that the defendant was involved, in some substantial manner, in the murder of the witness.

At approximately 7:15 P.M. on November 14, 1983, Bobby Edmonds was murdered at 308 West 121st Street in New York County. The place where the murder occurred was a narcotics "shooting gallery" and was known as such by October, 1982. ¹ Edmonds first came to the attention of the police as a potential witness on October 19, 1982 when he came to the 28th Precinct to file an assault complaint. While there he spoke to Detective Mulcahy. Edmonds' hands and feet were swollen, he had visibly infected sores on his arms and exuded an odor of decaying flesh. The odor was so foul that Mulcahy kept the door open while speaking to him.

Edmonds had a bloodied face and stated that a person named Nookie and another male had taken him out of a "shooting gallery", said words to the effect of "we hear you've been talking" and hit him with a brick. He then made a statement to the detective relating that on October 15, 1982 he had seen Nookie and two other men shoot McKinley Freeman, Jr. at 117th Street and Eighth Avenue. Mulcahy's offer to drive around to look for the men who assaulted Edmonds was declined and instead Edmonds asked that he be taken to the hospital. He promised to return and gave his address as 2166 Eighth Avenue.

Detective Bratton, who had been assigned to the Freeman homicide, was not informed of Edmonds' statement until he reported to work on October 21, 1982. However, Bratton was unable to locate Edmonds until February 2, 1983. At that time Edmonds was shown a photo array which included photographs of the defendant and two of his brothers. He positively identified the defendant, Nathaniel Sweeper, as Nookie. Bratton had previously focused on the defendant as a suspect by looking through a file which contained nicknames of certain known criminals. Edmonds had known the defendant for eight or nine years, having worked for him for much of that time as a steerer for drugs. Edmonds indicated his willingness to testify in the Freeman homicide case but sought certain assurances as to his safety after the trial. He requested a ticket to Baltimore, where he had family. Bratton promised him such a ticket.

The defendant was arrested for the Freeman homicide on April 8, 1983 and was arraigned that same day. On April 14 Edmonds was brought to the office of Assistant District Attorney (ADA) Saracco, where he was prepared for the Grand Jury testimony which he gave later that day. Edmonds' hands and feet were swollen, he had visible sores on his body and, according to ADA Saracco, smelled like a walking corpse. Edmonds told Saracco about the defendant's assault on him on October 19, 1982 and then detailed the facts surrounding the Freeman homicide. When ADA Saracco told Edmonds that he was willing to seek an indictment of Sweeper for the assault as well as for the homicide, Edmonds begged him not to do so, because he did not want his name to appear on the indictment thereby alerting Sweeper that he, Edmonds, was a witness in the homicide case. Saracco acceded to Edmonds' wishes.

After his testimony before the Grand Jury, Edmonds returned to the world of drugs, of which he was a habitue. From time to time he would go to the 28th Precinct to look for Bratton to obtain money for food. Bratton gave him three to five dollars on several of the 10 to 15 separate occasions that Edmonds visited the precinct.

This case reached the trial part on November 7, 1983, at which time defense counsel renewed his request for the names and addresses of the two remaining witnesses whose names had not yet been released. ² After an in camera submission by Mr. Saracco, the request was denied and the case was continued to November 10, 1983 for jury selection. On that date defense counsel's request was again denied, but I advised the Assistant District Attorney that I would require him to reveal the names prior to the opening statements. On November 14, at approximately noon, all relevant Rosario material, including Edmonds' name, present address, Grand Jury testimony, prior statements and complete criminal record, was turned over to the defense in anticipation of opening statements and the commencement of testimony later that afternoon. In fact, the commencement of opening statements was continued until November 15, 1983.

On November 9, 1983, on information that Edmonds was staying at a "shooting gallery" located at 308 West 121st Street, Bratton proceeded to that location to speak to him. Edmonds stated that he was in bad shape and wanted to go to a hospital. Bratton took him to the Sydenham Clinic at 125th Street and then to Harlem Hospital. Assuming that Edmonds would be admitted, Bratton left him in the emergency room. On the next day Bratton learned that Edmonds had not in fact been admitted to the hospital.

Bratton next attempted to locate Edmonds on November 14, 1983. He went to the "shooting gallery" at 308 West 121st Street at about 9:15 A.M., spoke to Edmonds and told him he wanted to take him to ADA Saracco's office. Edmonds refused, saying that he was in bad shape and could not go anywhere, but stated that he would be at the gallery all day and would be "straight tomorrow", the...