People v. Tucker

• Decision Date: 07 October 1996
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Edward TUCKER, Defendant.
• Court: New York Supreme Court

Page 928

650 N.Y.S.2d 928

171 Misc.2d 1

The PEOPLE of the State of New York, Plaintiff, v. Edward TUCKER, Defendant.

Supreme Court, Kings County.

Oct. 7, 1996.

Laura Saft, Brooklyn, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Inez-Mary Beyrer of counsel), for plaintiff.

JAMES G. STARKEY, Justice.

Defendant has moved pursuant to CPL § 440.10 for an order vacating his conviction by a jury of Murder in the Second Degree, Attempted Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree. Defendant's motion is primarily based upon the recantation of a prosecution witness, Ronald Holloway, who asserted that his trial testimony (that defendant had made a jailhouse confession to him) was untrue, that the prosecutor had told him how to testify falsely as to other details and that his trial testimony had falsely omitted reference to promises the prosecution had made in return for his testimony. Mr. Holloway also stated that the prosecutor had withheld from the defense information that Mr. Holloway had undergone psychiatric observation and defendant contends that in doing so, the prosecution violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Finally, he urges that during the trial, it was error for the prosecution to fail to deliver to the defense an audiotape describing the autopsy of the deceased, urging that possession by the Medical Examiner is chargeable to the District Attorney. A hearing was held on January 22, February 28 and April 18, 1996, during which two witnesses--Mr. Holloway and former Assistant District Attorney Barry Temkin--testified.

Prior Proceedings

Defendant's conviction concluded his second trial after reversal of his first conviction for Murder in the Second Degree and other crimes. See People v. Tucker, 182 A.D.2d 654, 582 N.Y.S.2d 35 (2d Dep't 1992). In reversing that conviction, the Appellate Division, Second Department, stated that "[v]iewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt." Id. at 654-55, 582 N.Y.S.2d 35. That Court held that reversal was required because the trial justice presiding at defendant's first trial had improperly directed a court officer "to tell the jury to continue deliberations," thereby delegating a judicial duty to a non-judicial staff member at a critical stage of the proceedings and in defendant's absence. (Supra, at 655, 582 N.Y.S.2d 35.)

Prior to the second trial, though no demand for discovery had been made on the prosecution pursuant to CPL § 240.20, the defense attorney served and filed a motion pursuant to CPL § 240.40 requesting, inter alia, that the prosecution be ordered to:

"Set forth whether the identifying witness, or any other People's witness, has ... ever received any psychiatric, alcohol or drug treatment and whether it was within a treatment institution and if so, set forth."

The prosecution did not consent or refer to this request in its answering papers, the court did not rule on it, and neither attorney called the matter to the attention of the court at any time. During the trial neither attorney ever questioned Mr. Holloway concerning the subject of psychiatric treatment or observation.

The retrial commenced on March 15, 1993, and concluded on March 30, 1993, when defendant was again convicted of Murder in the Second Degree. On May 24, 1993, he was sentenced to no less than twenty years to life imprisonment and his appeal to the Appellate Division, Second Department, is pending. At that trial the prosecution presented evidence beyond that offered at the first trial. Specifically, in addition to two eyewitnesses who testified at the first trial, an accomplice--one Michael Hodge--testified that the defendant had participated in a robbery and the homicide which resulted. As noted above, Ronald Holloway also testified for the first time that the defendant had confessed to him while both were in custody.

Findings of Fact

Ronald Holloway met the defendant Tucker and the two became friends some years ago when both were serving prison terms for murder. They met again in 1992, while each was incarcerated at Rikers Island. At that time, in accordance with Mr. Holloway's testimony at trial, defendant Tucker discussed the events giving rise to his previous conviction in the context of defendant Tucker's successful appeal and preparation for a new trial. The discussions included admissions by defendant Tucker that he had participated in the crimes of which he had been convicted. Following a fight between them, Mr. Holloway called Detective Robert Salem and stated that he had information about defendant Tucker. This led to a meeting on July 23, 1992 with Assistant District Attorney Barry Temkin, the prosecutor assigned to defendant Tucker's retrial. At that meeting Mr. Holloway stated that defendant Tucker had confessed his guilt to him and a long interview--which was tape recorded--ensued. The entire interview--during which Mr. Holloway was placed under oath--was held in the presence of Detective Salem and his partner, a detective named McNally, and neither left the room at any time during the interview. The entire interview was recorded, the tape was in no way manipulated or altered, and at no time did Mr. Temkin coach Mr. Holloway or tell him what to say.

During the interview, Mr. Holloway informed Assistant District Attorney Temkin of several details concerning the manner in which the crimes had been committed--details obtained by Mr. Holloway from defendant Tucker--of which Mr. Temkin had been previously unaware. Mr. Temkin concluded that Mr. Holloway's testimony would be useful at trial and agreed--in return for his testimony--to make a favorable recommendation concerning prompt parole as soon as Mr. Holloway became eligible and to recommend transfer of Mr. Holloway to one of several institutions where Mr. Holloway would be less likely to suffer retribution at the hands of defendant or his friends.

In a letter written at the court's direction on October 2, 1992 (copy to defendant's attorney), Assistant District Attorney Barry Temkin stated the promises made to Mr. Holloway in return for his testimony. The promises included making "a favorable recommendation to the appropriate authorities, agencies, courts and boards." The letter further noted that "the prosecution has agreed to make and has in fact made a recommendation to the Department of Corrections consistent with the security of the witness."

Thereafter, on February 9, 1993, Mr. Holloway was charged with infractions of Department of Correction's rules, including: Disrespect of Staff, Refusing a Direct Order, and Refusing to Identify Himself. After a hearing held on February 11, 1993, Mr. Holloway was found guilty and sentenced to 20 days of "Central Punitive Segregation"--a punishment sometimes colloquially described as the "Bing".

Mr. Holloway did not serve his punishment time because he was moved to a mental observation unit on February 15, 1993 and remained there until March 11, 1993, with a brief interruption on March 10, 1993. An admission note by a psychiatrist in his medical record dated February 15, 1993 states that "patient was transferred from C-95 after a suicide attempt. Inmate was found with a sheet around his neck trying to tie it to light fixture. He stated, 'I have the right to take my life.' Patient facing 20 days Bing time. Patient denies past psychiatric history...."

The diagnosis noted on the same date was that Mr. Holloway was alert and well oriented, not psychotic, that he denied hallucinations or delusional thinking, that his concentration was good and his memory intact, that he had average intelligence and that he appeared manipulative. The doctor concluded that he suffered from "adjustment disorder, mixed features, a personality disorder, and left knee arthritis." An interview note made on March 10, 1993, by "L. Sadowitz" states that Mr. Holloway had been referred "after hang-up attempt 2/15/93 in C95. Pt. Was 'avoiding Bing time' to work on case in Law Library. Pt. Is seeking 'an appeal with new evidence'. Dx. Axis I: Malingering."

The records further show that Mr. Holloway was discharged from the Psychiatric Unit on March 10, 1993, called upon to begin serving his "bing time" on March 11, 1993 and falsely reported that he had swallowed batteries to "get out of it." The record of March 11, 1993, further notes "no evidence of psychosis; insight and judgment adequate." On March 12, 1993, three days before defendant's trial began, he was transferred to the non-psychiatric, general population at the Bronx House of Detention, where he remained until April 30, 1993.

In due course, pursuant to the agreement between him and the prosecution, Mr. Holloway testified at defendant's second trial. The agreement was the one relating to prompt parole and transfer to a detention facility secure from retribution at defendant's hands or at his direction. The agreement did not include a provision, as claimed by Mr. Holloway, that Assistant District Attorney Temkin would recommend Mr. Holloway's "immediate release" or delivery to him of a free copy of his trial transcript. Nor did it include an understanding--as also claimed--that Mr. Holloway falsely testify in accordance with "coaching" by Assistant District Attorney Temkin as to "details" or any aspect of his testimony. Finally, Assistant District Attorney Temkin, unaware that Mr. Holloway had been the subject of psychiatric observation between February 15 and March 11, 1993, did not discuss that matter in any way with Mr. Holloway and therefore--contrary to Mr. Holloway's assertion--gave no instructions to the effect that Mr. Holloway conceal it from the defense.

Mr. Holloway's so-called suicide attempts were contrived efforts to avoid punishment for misconduct while in custody. At all times during...