People v. Brown

Murphy, P. J., and Smith, J., dissent in a memorandum by Smith, J., as follows:

Contrary to the conclusions of the majority, I find that the charge given by the trial court was both careful and fair. It did not contain any errors requiring reversal. Accordingly, I vote to affirm.

The facts are adequately stated by the majority. Defendant was convicted after a jury trial of murder in the second degree and sentenced to an indeterminate term of 15 years to life in prison. The deceased, Charles Jones, died on August 22, 1983, shortly after he was stabbed by someone with whom he had *456 been engaged in a heated argument. One witness, Jane Boyd, saw the occurrence from her 12th floor window but could not identify the assailant. Two other persons, Emilio Cotto and Kathleen Cotto, who were brother and sister, saw the event from different locations. Emilio Cotto knew the defendant from the neighborhood. Following defendant’s arrest, Emilio viewed a lineup and was 80% sure that the defendant was the assailant. (At the time all six persons in the lineup wore tape since defendant had a scar on his face.) At the trial, Emilio testified that he was more than 80% sure of his identification. Kathleen was sure of her identification both at the lineup and at the trial. Defendant did not testify.

CPL 300.10 (2) requires a court to "state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation.” In this case the Trial Judge chose to marshal the evidence. While the majority opinion is both careful and well reasoned, I do not agree that either the charge on identification or intent was flawed.

With respect to the identification portion of the charge, the majority rightfully concludes that, "It is difficult to think of any factor reasonably relevant to the reliability of the identifications, whether favorable to the prosecutor or to the defendant, that was not set forth clearly by the trial court.” Nevertheless, the majority concludes that "factors favorable to the prosecutor’s theory were consistently presented with more emphasis, cogency and detail than those that might reasonably have been thought helpful to the defendant.” The majority continues that "it is not acceptable in our jurisprudence for the trial court’s personal evaluation of the evidence to be presented to the jury in a manner that could influence the jury’s discharge of its fact-finding function.” However, diplomatically the majority expresses itself, its conclusion is that the Judge felt the defendant was guilty and wrongfully influenced the jury to reach the same conclusion. There is simply no support for this conclusion in the record. Nor does the majority point to even one example of improper influence in the court’s charge.

There was no error in the identification charge. The court stated what the evidence of identification was and then gave a charge on credibility.

Detective Gruntz testified that at the time of the lineups in *457 April 1984 (the killing occurred on Aug. 22, 1983), the defendant was 6 feet 1 inch and weighed 159 pounds. His age was 29 years. The Medical Examiner testified that the deceased was 5 feet 11 inches and weighed 150 pounds. He was 30 years old.

On September 7, 1983, Emilio Cotto gave a written statement that the stabber was smaller than the deceased, and that the stabber was 5 feet 7 inches or 5 feet 8 inches tall. At the trial Emilio Cotto stated that he had told Detective Gruntz that the stabber was 5 feet 7 inches or 5 feet 8 inches tall. He could not remember if he had also told Detective Gruntz that the stabber was shorter than the deceased.

Jane Boyd testified that the stabber was the smaller of the two men, who were fighting, but she was not sure because she did not have her glasses on and was viewing the street scene from her 12th-floor apartment. Her testimony concerning a description of the stabber was as follows:

"Q Did you know the other fellow that, that Charles was fighting with. Could you recognize him without your glasses?

"A No.

"Q Could you tell whether he was black or white?

"A I know he was black.

"Q Do you recall his height? Start with his height, could you recall that from, from back in Aug. of ’83?

"A He was a little like a real, real thin, a real small guy.

"The Court: Was he smaller than Charles or bigger than Charles?

"The Witness: Smaller, real, real small guy from where I am looking because at the time I didn’t have my glasses on. I couldn’t really tell by being as high up as I was.

"Q What floor were you on?

"A The 12th.”

Contrary to the Judge’s statement in his charge that Kathleen Cotto had testified that the stabber was smaller than the deceased, Kathleen Cotto testified only that his hair was in an Afro style and that he had a Spanish appearance.

The court’s charge on credibility was more than adequate. The court sought to inform the jury of how it could assess credibility and particularly with respect to the identification issue. Both sides had stated to the jury that the main issue in the case was identification.

Turning to the charge on intent, the majority labels it "clearly flawed”. The majority objects to the charge because *458 "it seems to us clearly to communicate the message that a finding by the jury that the stabbing was intentional would almost necessarily require the further finding that the defendant intended to kill the deceased.” This message, the majority concludes, was conveyed in part by the emphasis of the court on whether the stabbing was intentional or accidental and by an "inappropriate illustration”, that intent to kill might be shown by a gunshot to the head.

Contrary to the majority’s position, I find the charge on intent was entirely appropriate. Moreover, it is inaccurate to characterize that charge as focusing "on whether the stabbing was intentional or accidental”. In the four-page charge on intent, the word accidental is used three times, in each instance to give a clearer meaning to intent. The illustration of a case involving a gunshot to the head also serves to give clearer meaning to intent. The intent charge reads as follows: "First, lets talk about the crime. Under our penal law, murder in the second degree is defined as follows: a person is guilty of murder in the second degree when: 1. with intent to cause the death of another person he causes the death of such person or a third person; that need not concern us; very simple definition. What has to be established in order to prove the crime of murder in the second degree is: 1. that it was this defendant who was involved. 2. that he caused the death of another human being. 3. that he intended to cause the death of another human being and if those elements have been established by the proof and [sic] the crime is made out. It is clear in this case that there was the death of a human being, you have heard the testimony of the medical examiner which established the cause of death, the stab wound which pierced the lung, pericardium and the ventrical of the heart that was the cause of death; you have also heard testimony which contends that this defendant, Gregory Brown, was the person who caused that death by using a knife so your job essentially is to determine was it Gregory Brown who was involved and was there an intent to cause the death of Charles Jones, [sic] with respect to intent, I want you to distinguish that from motive. We don’t know anything in this case about motive, if, indeed, it was Gregory Brown who was engaged in an argument with Charles Jones at 99th Street and Lexington Avenue. We don’t know why. We can’t speculate, we dont [sic] have to know, for the purpose of determining whether there was an intent to cause death. Intent is a mental operation, you can’t take a picture of it, you can’t put your finger on it, you have to determine that on the basis of all the circum *459 stances that you have heard about in the case. Sometimes there are accompaning [sic] words which give some indication as to what a person intends to do. If a person says, I intend to give you a bouquet of flowers and he then stabs you, you may say that maybe that stabbing was accidental as indicated by the words or maybe the words were deceptive. If [sic] there are [sic] a word accompaning [sic] an act which clearly indicates an intent like, T am going to kill you’ or as—young Mr. Cotto reports to the Detective in the first instance, indicated that the assailant was going to stab Jones, and Jones rejoined that he wouldn’t have the heart to do it, that may be considered by you as bearing on intent and then, of course, you may consider intent from the act itself. Intent need not be preplanned, thought out well in advance, intent can be formulated as of the moment and it is enough that the intent accompanies the act whenever the intent was formed. We sometimes talk about appreciateing [sic] the natural and probable consequences of ones act. It may be, for example, one person gives another person a shove, that it would not normally be expected that the natural and probable consequences would be that that person would fall down and split his skull and die. On the other hand, if one person puts a gun to the head of another, knowing it to be loaded and pulls the trigger, you may conclude from the act itself that there was an intent to cause death. So you look at all the circumstances to determine whether the act was intentional or unintentional. Sometimes what someone does may be accidental, you may have taken a knife out to show somebody and tripped and fall and suddenly it goes where you never intended it to go. So we say for the crime of murder to be established you must show that the act was not sccidental [sic] that it was not unintended but that, indeed, it was intended and that the intention was carried out and death caused by the actor.” (Emphasis supplied.)

Turning to the admission of evidence concerning television broadcasts about the incident, most of the questions were not objected to. While Detective Raymond Gruntz was on the stand, the prosecutor elicited information that in cooperation with the Channel 7 Eyewitness News program, for a period of five days, a description of the location of the crime, type of crime and general description of the person sought were broadcast. The detective testified that he received information pursuant to these broadcasts. No objection was made until the prosecutor asked the detective where he had gone pursuant to the information. A defense objection was overruled and the *460 detective testified that he had gone to 1539 Lexington Avenue. After further testimony that the detective, following a conversation with someone in a second-floor apartment, had gone to the apartment of defendant’s aunt on the first floor, the defense attorney objected to the whole line of questioning. The objection was overruled and the detective was permitted to testify that the inquiry had focused on a specific person. An objection to the name of the person was sustained.

On cross-examination the detective indicated that one person called the police after viewing the television segment, but that person did not witness the stabbing and did not give his own identity.

This testimony does not require a reversal. Even assuming the police obtained the defendant’s name from the unidentified caller, it was clear that the caller had not witnessed the stabbing. This case is distinguishable from People v Holt ( 67 NY2d 819 [1986]), relied on by the majority, where a police officer testified, over objection, that he had arrested the defendant after conferring with the only eyewitness to a murder. The Court of Appeals ruled that such evidence constituted implicit bolstering but also noted that "such implicit bolstering may not have warranted reversal in and of itself’ (67 NY2d, supra, at 821). In Holt , the conviction was reversed because of a failure of the Trial Judge to give an alibi charge as requested.

Finally, the fact that no charge was given on manslaughter in the first degree is not a ground for a reversal. First, no such charge was asked for, either by the prosecutor or the defendant. Secondly, the issue of intent was one of fact for the jury to consider. If it found no intent to kill, it was bound to acquit. The evidence of intent, however, fully supported its verdict. Thirdly, nothing in the record supports the speculation in the majority decision that a juror who was convinced that the defendant had unjustifiably caused the death of the decedent but was unconvinced of defendant’s intent to kill him would have failed to follow the court’s instruction to acquit.

1 would affirm the conviction.