People v. Ward, 2015–12019

• Decision Date: 28 August 2019
• Docket Number: Ind. No. 7307/13,2015–12019
• Citation: 175 A.D.3d 722,109 N.Y.S.3d 72
• Parties: The PEOPLE, etc., Respondent, v. Tiequan WARD, Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 722

109 N.Y.S.3d 72

The PEOPLE, etc., Respondent,

v.Tiequan WARD, Appellant.

2015–12019

Ind. No. 7307/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 20, 2018

August 28, 2019

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered November 12, 2015, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial before a different Justice.

On August 19, 2010, at approximately 12:45 a.m., Steven Oliver was shot in the head while in a parking lot behind an apartment building in East New York. As a result of the shooting, Oliver died on August 21, 2010.

In September 2013, three years after the shooting, the defendant was arrested after the Federal Bureau of Investigation (hereinafter the FBI) turned over to the Kings County District Attorney's Office a video recording of a conversation between the defendant and a confidential FBI informant that occurred in July 2011. During his conversation with the confidential informant, the defendant admitted, inter alia, that he shot Oliver in retaliation for Oliver killing the defendant's friend "Tweety" in 2003.

Prior to trial, the defendant moved pursuant to CPL 710.30 to preclude the People from introducing into evidence his statements to the confidential informant on the ground that the People failed to timely serve the required notice of intention within 15 days after his arraignment. The People opposed the motion, and the Supreme Court denied the motion.

Also prior to trial, a purported witness to the shooting, Mercedes Mitchell, gave a sworn statement indicating that she observed the defendant shoot Oliver. Thereafter, however, Mitchell refused to cooperate with the District Attorney's Office and was eventually brought to court during the trial on a material witness warrant. At a material witness hearing, Mitchell's counsel indicated that if Mitchell were called to testify, she would invoke the Fifth Amendment privilege against self-incrimination because her proposed trial testimony could expose her to prosecution for perjury. Mitchell's counsel explained that, contrary to Mitchell's prior sworn statement, Mitchell would testify that she neither saw the defendant shoot Oliver, nor saw the defendant in the parking lot where the shooting occurred. Counsel stated that Mitchell would testify that her prior sworn statement and her photographic identification of the defendant were coerced by police officers. The Supreme Court ruled that Mitchell was not allowed to invoke the Fifth Amendment. The People requested that they be permitted to treat Mitchell as a hostile witness. However, upon Mitchell agreeing that she would testify and swearing that she would testify truthfully, the court ruled that it was premature to allow the prosecution to treat her as a hostile witness.

When called to the stand, Mitchell refused to take the oath. The Supreme Court held her in contempt (see Judiciary Law § 750[A] ), but then permitted the prosecutor to pose questions to her as an unsworn witness. Mitchell responded to a few background questions, but once the prosecutor started posing leading questions relating to the incident, Mitchell invoked the Fifth Amendment privilege. After 12 assertions of the privilege, the prosecutor offered Mitchell immunity, but Mitchell continued to refuse to answer questions. The court held her in contempt multiple times.

The jury convicted the defendant of murder in the second degree. On appeal, the defendant contends that the Supreme Court erred in denying his motion to preclude his statements made to the confidential informant, and that he was deprived of a fair trial due to the prosecutor's improper questioning of Mitchell before the jury, the prosecutor's arguments on summation regarding Mitchell's refusal to testify, and the court's jury instructions as they pertained to Mitchell's testimony and her invocation of the Fifth Amendment privilege.

CPL 710.30(1) provides, in pertinent part: "Whenever the people intend to offer at a trial (a) evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible upon motion pursuant to subdivision three of section 710.20, ... they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered." "The obvious purpose of the statute is to afford a defendant adequate time in preparing his [or her] case in respect to the voluntariness of a confession or admission" ( People v. Greer , 42 N.Y.2d 170, 178, 397 N.Y.S.2d 613, 366 N.E.2d 273 ; see People v. Ross , 21 N.Y.2d 258, 262, 287 N.Y.S.2d 376, 234 N.E.2d 427 ; see also People v. Lopez , 84 N.Y.2d 425, 428, 618 N.Y.S.2d 879, 643 N.E.2d 501 ). However, a notice of intention to offer evidence need not be served upon the defendant where, as here, there is no question of voluntariness (see People v. Greer , 42 N.Y.2d at 178, 397 N.Y.S.2d 613, 366 N.E.2d 273 ; see also People v. Smith , 118 A.D.3d 920, 921, 988 N.Y.S.2d 233 ; People v. Cox , 215 A.D.2d 684, 684–685, 628 N.Y.S.2d 294 ; People v. Clark , 198 A.D.2d 46, 46, 603 N.Y.S.2d 450 ). The defendant made admissions during a conversation with a confidential informant, with whom he was friendly, and his admissions were made in a noncoercive, noncustodial setting (see People v. Carter , 31 A.D.3d 1056, 1057, 818 N.Y.S.2d 854 ; People v. Roopchand , 107 A.D.2d 35, 37, 485 N.Y.S.2d 332, affd 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924 ). The defendant's claim that he was motivated to lie to the confidential informant so that the informant would allow the defendant to participate in a robbery did not render the defendant's statements involuntary, since he was not induced to lie by anything the informant said or did (see Colorado v. Connelly , 479 U.S. 157, 165–166, 107 S.Ct. 515, 93 L.Ed.2d 473 ; People v. Burkett , 98 A.D.3d 746, 747, 950 N.Y.S.2d 194 ). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion to preclude admission of his statements to the confidential informant.

However, we find that the cumulative effect of the Supreme Court's erroneous rulings and jury instructions relating to Mitchell's refusal to take the oath and invocation of the Fifth Amendment privilege, as well as the prosecutor's exploitation of Mitchell's refusal to take the oath and invocation of the Fifth Amendment privilege, deprived the defendant of a fair trial. Although these errors are not preserved for appellate review, we nevertheless reach them in the exercise of our interest of justice jurisdiction (see CPL 470.15[3] ; People v. Engstrom , 86 A.D.3d 580, 581, 926 N.Y.S.2d 664 ; People v. Rose , 223 A.D.2d 607, 607, 637 N.Y.S.2d 172 ).

All proceedings of a judicial character connected with a criminal trial are governed by the requirement that every witness over the age of nine years may testify only under oath, unless he or she suffers from a mental disease or defect which renders him or her unable to understand the nature of the oath (see CPL 60.20[2] ; People v. Copeland , 70 A.D.2d 884, 884, 417 N.Y.S.2d 103 ). The requirement serves two purposes: "to alert the witness to the moral duty to testify truthfully and to deter false testimony through the sanction of a perjury prosecution" ( People v. Copeland , 70 A.D.2d at 884, 417 N.Y.S.2d 103 ). Since Mitchell refused to take the oath, and was not deemed to be ineligible to take the oath by reason of, inter alia, infancy, mental disease, or defect pursuant to CPL 60.20(2), the Supreme Court erred in allowing Mitchell to testify or be questioned by counsel. The court further erred in giving the jury a charge regarding the corroboration of an unsworn witness (see CJI2d[NY] Corroboration of a Witness: Unsworn Witness; see also People v. Groff , 71 N.Y.2d 101, 524 N.Y.S.2d 13, 518 N.E.2d 908 ), which permits a jury, under certain conditions, to convict a defendant upon unsworn testimony of a person deemed ineligible to take an oath.

Despite the Supreme Court's erroneous ruling allowing Mitchell to testify and have questions posed to her, it should be noted that Mitchell did not, in fact, provide unsworn testimony other than giving background information about herself. When asked about the incident, she invoked the Fifth Amendment privilege, and, to the extent that the defendant was prejudiced, it was not due to the substance of anything that Mitchell said on the witness stand. Rather, the prejudice to the defendant arose from (1) the prosecutor's posing of leading questions which informed the jury that Mitchell, a person familiar with both the defendant and the victim, had previously identified the defendant as the shooter, (2) the inferences that the prosecutor sought to draw from Mitchell's refusal to testify, and (3) the court's jury instructions that the jury may draw an inference of the defendant's guilt from Mitchell's refusal to testify.

After Mitchell refused to take the oath and invoked her Fifth Amendment privilege, the Supreme Court suggested to the prosecutor that she may ask Mitchell about her prior sworn statement identifying the defendant as the shooter. Following the court's advice, the prosecutor then asked Mitchell whether she recalled speaking with the police on August 19, 2010, whether she recalled giving a recorded statement to the District Attorney's Office on August 26, 2010, and most significantly, whether she "told the police that she saw NuNu [the defendant] shoot Stout [Oliver]." Mitchell invoked the Fifth Amendment privilege with respect to the first two questions, and the court sustained an objection to the last of those questions. In sustaining the objection, the court instructed Mitchell...