People v. Watkins

• Decision Date: 29 May 1990
• Citation: 556 N.Y.S.2d 541,157 A.D.2d 301
• Parties: The PEOPLE of the State of New York, Respondent, v. Carl WATKINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 541

556 N.Y.S.2d 541

157 A.D.2d 301

The PEOPLE of the State of New York, Respondent, v. Carl WATKINS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 29, 1990.

James M. McGuire, of counsel (Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.

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

Before SULLIVAN, J.P., and CARRO, MILONAS, KASSAL and SMITH, JJ.

SULLIVAN, Presiding Justice.

At issue are a series of trial court determinations, each of which, it is argued, deprived defendant of a fair trial.

Defendant's conviction arises out of a mid-afternoon, December 15, 1987 "buy and bust" operation conducted by members of the New York City Police Department's Manhattan Special Anti-Crack Unit. Undercover officer Edwin La Torres approached defendant and Kevin Lloyd, ¹ who were standing together on the sidewalk on Second Avenue between 123rd and 124th Streets, and asked defendant for crack. Before defendant could respond, Lloyd asked the officer how many vials he wanted. La Torres responded "four nickles," and Lloyd shook his head indicating "yes". Lloyd then reached into his jacket pocket, removed several vials and handed them to defendant, who said to La Torres, "let's take a walk." The two separated from Lloyd and walked a few steps when defendant showed the undercover officer four pink-capped crack vials. After looking them over, La Torres took the vials and handed defendant a pre-recorded $20 bill. Meanwhile, from her vantage point about one-half block away, Officer Sheila Almond, acting as the "ghost", saw an "exchange" between defendant and Lloyd and a subsequent "exchange" between defendant and La Torres. Almond, however, could not see what was exchanged during either transaction. The sale, from the time negotiations began to its consummation, took two and one-half minutes.

As soon as he received the four vials of crack, La Torres signalled Almond that the transaction had been completed. After entering a car driven by another undercover officer, who was waiting for him on 122nd Street, La Torres also alerted his backup team, by radio, giving a description of the two sellers. When Officer Almond, who had entered a store to contact the backup team by radio, returned to the street, she observed defendant going into another store on Second Avenue, closer to 124th Street. Within minutes of the transaction, defendant and Lloyd were seized at the scene of the sale by the backup team and the "ghost" officer. A search of Lloyd uncovered $68 and two pink-capped vials of crack. Neither the pre-recorded buy money nor any contraband was found on defendant. Officer La Torres returned to the scene some four or five minutes after the sale and, using the police car radio, confirmed that the two men being detained were the sellers. At trial, Police Department chemists testified that, upon analysis, each of the four pink-capped vials sold to Officer La Torres and the two pink-capped vials recovered from Lloyd contained cocaine. Defendant was convicted of both criminal sale and possession of a controlled substance in the third degree.

On appeal, defendant argues, inter alia, that the trial court's biased response to the jury's question concerning the non-recovery of the buy money, its precipitous discharge of a sworn juror and denial of a full and fair opportunity to cross-examine the witnesses against him require reversal and a new trial. We agree.

During deliberations, the jury inquired, "Does the judge's charge on not speculating about evidence that we do not have also apply to the buy money?" Before answering, the court stated that if the jury believed that La Torres gave defendant the buy money, then "the only reasonable inference" was that defendant disposed of it. Objecting that the court would be "telling [the jurors] how to reason", defense counsel asked that the court answer the question "yes" or, at the very least, instruct the jury on the consequence of disbelieving La Torres. Instead, it instructed:

The general charge about not speculating applies to everybody. You're not supposed to guess.

I guess there's a problem with knowing when something is speculation and when it's not.

For instance in the example that I gave you about snowing, when you're asleep you're not speculating as to whether it snowed during the night. You know there was no snow on the ground when you went to sleep, you know the ground is all covered with snow when you got up. The only inference that can be drawn is that it must have snowed during the night.

That is not speculation. That is not a guess. Even though you didn't see it it is a reasonable inference and a logical conclusion which can be drawn from a given factor.

With reference to the buy money, it doesn't matter whether it is buy money or anything else. Let us assume that you believe the testimony of La Torres that he gave $20 to Mr. Watkins. We believe it now we have a situation where there was a hiatus of five minutes during which time Mr. Watkins went into a store, whatever and after that he was searched and the money is not there. Obviously he could have disposed of the buy money.

Put it somewhere, given it to somebody, anything could have happened to it.

During the five minutes, because there's a five minute interval, you can't logically come to the conclusion that because he didn't have the money five minutes later it was never given to him. That's quite obvious.

Let us assume he gave him a sandwich and he saw him three hours later, he didn't have the sandwich on him, maybe he ate it.

You certainly couldn't draw the inference from the fact that he didn't have the sandwich on him three hours later that he was never given the sandwich. It's not logical. And the same thing with the cat and the mouse.

If you believe that the mouse was put in the box and when you open the box the mouse isn't there and there's no way in which the mouse could have escaped, the only other way which would make the mouse disappear would be that the cat ate the mouse.

But once you know there's a little hole in there, then the mouse could have escaped and then you can't say that the cat ate the mouse.

It's the same thing with the five minutes. There's a little hole in there and the money could have escaped, could have been lost, could have been given away. Anything could have happened to it. You can't say that he didn't have it.

But here what you've got is direct evidence. We're not dealing with circumstantial evidence.

Police Officer La Torres took the stand and he took the oath and he said I bought $20 worth of coke--what is it--crack, from Mr. Watkins, and I gave him $20.

You believe him or you don't believe him and you have the right to believe him and you have the right not to believe him.

You can test it, you can scrutinize his testimony the same as you would that of any other witness. Does it make sense the whole operation, everything you heard about the buy and bust operation, the back-up team, the field team, they go into a particular location to try to buy crack. Does it make sense? How does it tie in with the testimony of Police Office Almond, the evidence, everything else you take into consideration, making a determination of whether or not the People have proven their case to your satisfaction through the testimony of those witnesses beyond a reasonable doubt.

There is no easy solution that I can give you. You can't say well because he doesn't have the money on him five minutes later it was never given. It's five minutes.

You can't reason so that's not a fair and it's not a reasonable inference, the inference has to be fair. It has to be reasonable it has to be logical. So you can't speculate. You can't guess of course not.

You can't say maybe this or maybe that. That you're not allowed to do.

But you could either believe LaTorres or not.

You could either believe Police Officer Almond or not. That's what you're here for.

So you take the whole picture and you use the same test that you use in your everyday affairs.

Do these police officers have a motive not to tell the truth? Do they have an interest in the outcome of this particular case? Do they gain by it or lose by it?

Use the same tests that you use in your everyday affairs.

Does it make sense? That's the best I can tell you. No magical formula that I can give you. I've told you from the beginning.

Some people think that if a man scratches his nose like this, he's not telling the truth. I can't tell you that. No such easy way. I hope I have answered your question and that it will help somewhat.

Defense counsel excepted to the instruction as biased, complaining that, having reasoned for the jury, the court presented examples consistent only with the inference of guilt without alternatively asking the jury to presume innocence or infer from the absence of buy money that La Torres never gave $20 to defendant.

A trial court must give balanced instructions (People v. Bell, 38 N.Y.2d 116, 120, 378 N.Y.S.2d 686, 341 N.E.2d 246) and avoid even the appearance of bias. (United States v. Mazzilli, 848 F.2d 384, 388.) Thus, in its instructions to the jury, a court may not suggest its own opinion as to guilt (see, People v. Brown, 129 A.D.2d 450, 514 N.Y.S.2d 326), direct a finding of any issue of fact (People v. Lewis, 64 N.Y.2d 1031, 1032, 489 N.Y.S.2d 57, 478 N.E.2d 198; People v. Walker, 198 N.Y. 329, 334, 91 N.E. 806), marshal the evidence more favorably to one side (People v. Bell, supra, 38 N.Y.2d at 122, 378 N.Y.S.2d 686, 341 N.E.2d 246) or use biased hypotheticals (see, People v. Hommel, 41 N.Y.2d 427, 429-430, 393 N.Y.S.2d 371, 361 N.E.2d 1020; see, also, People v. Roman, 149 A.D.2d 305, 539 N.Y.S.2d 358). In our view, each of these mandates was violated by the court's supplemental charge.

Accepting the People's version of the incident, the non-recovery of the buy money was an...