Opposition Brief — Darrell Hemphill, Petitioner v. New York
Supreme Court briefMar 1, 2021
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No. 20-637
IN THE
DARRELL HEMPHILL,
Petitioner,
v.
STATE OF NEW YORK,
Respondent.
On Petition for a Writ of Certiorari
to the Court of Appeals of New York
SUPPLEMENTAL APPENDIX
Darcel D. Clark
District Attorney of Bronx
County
198 Easy 161st Street
Bronx, New York 10451
(718) 838-7142
Noah J. Chamoy*
Nancy D. Killian
Paul A. Andersen
Morgan Namian
Daniel Young
Assistant District Attorneys
*Counsel of Record
chamoyn@bronxda.nyc.gov
February 27, 2021
TABLE OF CONTENTS
Table of Contents ......................................................................................................................... SA001
Brief for Defendant-Appellant before the Appellate Division .................................................... SA002
Respondent's Brief before the Appellate Division ....................................................................... SA175
Reply Brief for Defendant-Appellant before the Appellate Division .......................................... SA348
Rule 500.11(e) SSM Letter of Defendant-Appellant before the Court of Appeals ..................... SA385
Rule 500.11(e) SSM Respondent’s Letter before the Court of Appeals...................................... SA415
Reply Rule 500.11(e) SSM Letter of Defendant-Appellant before the Court of Appeals ........... SA443
i
SA002
. To be argued by
CLAUDIA TRUPP
Jleb.1 ~orlt 3i>upreme QCourt
appellate jlgfufston ,.,. jfirst jlgepartment .
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
- against Bronx County
Ind. No. 1221/13
DARRYL HEMPHILL ,
Defendant-Appellant.
REPLY BRIEF FOR DEFENDANT-APPELLANT
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CLAUDIA TRUPP
Of Counsel
J
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Robert S. Dean
Attorney for Defendant-Appellant
Center for Appellate Litigation
120 Wall Street
New York, NY 10005
rnichinsky@cfal.org
(212) 577-2523
SA003
TABLE OF CONTENTS
TABLE OF AUTHORITIES
vii
PRELIMINARY STATEMENT
1
QUESTIONS PRESENTED
2
INTRODUCTION
5
10
STATEMENT OF FACTS
On Easter Morning In April 2006, Following A Street
Fight,
A Stray Bullet Kills Two-Year-Old David
Pacheco, Jr.; Based On Witness Accounts, The Police
Quickly Identify Ronnell Gilliam and Nicholas Morris
As the Culprits.
. . . . 10
Aware That DNA Was Obtained From The Blue Sweater,
The Prosecution Proceeds To Trial Against Nicholas
Morris, Before Agreeing To A Mistrial And Procuring
Morris's Guilty Plea To Weapon Possession.
12
In April 2011, The Court Issues A Warrant To Obtain
Mr. Hemphill's DNA Which Matches The DNA On The Blue
Sweater; The Prosecution Then Waits An Additional
Two Years To Indict Mr. Hemphill Without Presenting
To The Grand Jury Any Of The Exculpatory Evidence
Relating To Nicholas Morris.
13
The In Limine Rulings
15
The Court Precludes Evidence Relating To Weapons
Recovered From Nicholas Morris's Apartment Within
Hours Of The Shooting.
. . . . . 15
The Court Rules That Counsel Can Elicit From The
Investigating Detective That Mr. Hemphill's Lawyer
Advised The Police That He Was Willing To Talk To
Them About The Incident, To Rebut The Prosecution's
Evidence Of Flight, But Then Reverses The Ruling. 16
The Court Deems Admissible The Soundless
News 12 Interview With Morris To Demonstrate
His Appearance Shortly After The Incident And
The Broadcast's Influence On The Subsequent
Line-up Identifications.
i
)
17
SA004
The Court Rules That The Prosecution Will Be Given
Substantial Leeway To Impeach Its Own Witnesses . . 18
The Court Refuses To Limit The Prosecution's
Introduction Of Photos Of The Deceased.
The Trial
19
20
Opening Statements
20
Eyewitnesses Describe A Ten-Minute Altercation
Culminating In The Shooting Minutes Later And The
Subsequent Identification Of Nicholas Morris.
22
During Brenda Gonzalez's Cross-Examination Counsel
Confronts Her With Her Prior Grand Jury Testimony
Identifying Morris; The Prosecutor Does Not Object
To The Cross-Examination But Subsequently Accuses
Counsel Of Misleading The Witness.
27
The Prosecutor States His Intent To Pay Michelle
Gist Thousands Of Dollars To Relocate Based On Death
Threats Received After Her Grand Jury Testimony Was
Disclosed, Claims That Later Prove To Be
"Muddled"
32
Cooperator Ronnell Gilliam's Account
35
The Court Allows The Prosecution To Introduce
Morris's Guilty Plea Admitting To Possessing The
.357 Weapon, Over Counsel's Confrontation Clause
Objection, Ruling The Defense Had Opened The Door To
The Evidence..
41
The Court Deems Hearsay Testimony Admissible Through
Gilliam's Attorney.
43
Gilliam's Grandmother, Who Has Trouble Recognizing
Mr. Hemphill In Court, Testifies She Remembers Him
Wearing A Blue Sweater on Easter Morning 2006.
45
The Court Allows The Prosecution To Impeach Its Own
Witnesses Elisa Hemphill and Vernon Mathews.
46
The Forensic Evidence
54
The Court Permits The Introduction Of Hearsay
Concerning The Recovery Of The Blue Sweater But Bars
The Defense On Hearsay Grounds From Rebutting The
ii
SA005
Evidence Of Flight . .
58
The Defense Motion To Dismiss
59
The Court Precludes Significant Aspects Of The
Defense Case.
60
The Court Allows Extensive Cross-Examination Of A
Critical Defense Witness Based On A Remote Prior Bad
Act.
62
Summations
66
Charge and Deliberations
75
The Court Removes Mr. Hemphill From The Courtroom
Prior To Polling The Jury Without Adjourning The
Proceedings.
. . . . .
. . . .
77
The Court Refuses To Grant The Defense A Single
Adjournment of Sentence To Permit Counsel To File A
Motion Alleging Serious Juror Misconduct.
78
ARGUMENT
81
POINT I
MR. HEMPHILL'S GUILT WAS NOT PROVEN BEYOND A REASONABLE
DOUBT WHERE MULTIPLE EYEWITNESSES INDEPENDENTLY
IDENTIFIED ANOTHER MAN, NICHOLAS MORRIS, AS THE SHOOTER,
AND MORRIS POSSESSED .9MM AMMUNITION, THE TYPE USED IN
THE SHOOTING, AND HAD BRUISES ON HIS KNUCKLES CONSISTENT
WITH HIS INVOLVEMENT IN THE FISTFIGHT WHICH PRECEDED THE
SHOOTING. U.S. CONST., AMEND. XIV; N.Y. CONST. ART. I,
§6.
81
A. The Eyewitnesses Who Identified Morris Interacted
With The Shooter At Close Range, In Good
Lighting, For Ten Minutes, Providing Compelling
Evidence Of His Guilt.
. . . . .
83
B. The weapons Seized From Morris's Apartment And
His Bruised Knuckles Further Supported His
Identification As The Shooter.
87
)
C. Ronnell Gilliam's Testimony Was Inherently
Unreliable.
88
D. The Forensic Evidence Did Not Prove Mr.
Hemphill's Identity As the Shooter.
91
iii
)
SA006
E.
The Evidence Of Flight Was Ambiguous . . . . .
93
POINT II
THE COURT DENIED MR. HEMPHILL HIS RIGHT TO CONFRONT THE
WITNESSES AGAINST HIM WHERE IT ADMITTED NICHOLAS MORRIS'S
GUILTY PLEA STATEMENTS TO PROVE THAT MORRIS POSSESSED A
DIFFERENT CALIBER GUN ON THE DATE OF THE SHOOTING, NOT
THE .9MM THAT KILLED THE VICTIM, BECAUSE THE DEFENSE HAD
OPENED THE DOOR TO THIS EVIDENCE EVEN THOUGH COUNSEL HAD
SCRUPULOUSLY FOLLOWED THE COURT'S IN LIMINE RULINGS. U.S.
CONST., AMEND. VI; N.Y. CONST. ART. I, §6. . . . . .
94
POINT III
THE COURT DENIED MR. HEMPHILL HIS DUE PROCESS RIGHT TO A
FAIR TRIAL, TO CONFRONT WITNESSES, AND TO PRESENT A
DEFENSE WHERE IT PROHIBITED COUNSEL FROM ESTABLISHING A
CRITICAL WITNESS'S PRIOR IDENTIFICATION OF MORRIS BECAUSE
COUNSEL HAD NOT ADEQUATELY ADVISED THE WITNESS OF THE
INCONSISTENCY, ALTHOUGH COUNSEL HAD READ VERBATIM THE
QUESTIONS AND ANSWERS THE WITNESS HAD PROVIDED DURING HER
GRAND JURY TESTIMONY; THE PROSECUTION THEN EXPLOITED THE
COURT'S ERRONEOUS RULING TO ARGUE THAT THE DEFENSE WAS
FABRICATING EVIDENCE, AN ARGUMENT THE JURY SEIZED UPON
DURING DELIBERATIONS. U.S. CONST., AMEND. XIV, XIV; N.Y.
CONST., ART. I, §6 . . . . . . . . . . . .
101
POINT IV
THE COURT DENIED MR. HEMPHILL DUE PROCESS BY REPEATEDLY
ALLOWING THE PROSECUTION, OVER CONSTANT OBJECTION, TO
IMPEACH ITS OWN WITNESSES AND UNFAIRLY ATTACK THE
CREDIBILITY OF A KEY DEFENSE WITNESS. U.S. CONST., AMEND.
XIV; N.Y. CONST., ART. I, §6.
108
POINT V
THE COURT DENIED MR. HEMPHILL HIS RIGHT TO PRESENT A
DEFENSE WHERE IT PRECLUDED EVIDENCE TO COUNTER THE
PROSECUTION'S EVIDENCE OF FLIGHT, WHILE ALLOWING THE
PROSECUTION TO CONSISTENTLY INTRODUCE EVIDENCE OF
NICHOLAS MORRIS'S INNOCENCE BECAUSE HE DID NOT FLEE AND
PRECLUDED A STATEMENT THAT MORRIS HAD CONFESSED TO THE
SHOOTING AND THE WEAPONS RECOVERED FROM HIS APARTMENT.
U.S. CONST. AMEND. XIV; N.Y. CONST. ART. I, §6.
115
J
POINT VI
THE COURT ERRED IN PERMITTING THE PROSECUTION TO
INTRODUCE, OVER OBJECTION, HEARSAY RELATING TO CRITICAL
ISSUES, WITHOUT APPROPRIATE LIMITING INSTRUCTIONS. U.S.
CONST., AMEND. VI, XIV; N.Y. CONST., ART. I, §6 . . .
121
iv
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POINT VII
THE COURT APPLIED AN ERRONEOUS LEGAL STANDARD IN ALLOWING
THE PROSECUTION TO INTRODUCE 12 PICTURES OF THE TWO-YEAROLD VICTIM, AS WELL AS INFLAMMATORY MEDICAL EXAMINER
TESTIMONY RELATING TO THE CHILD'S SUFFERING, WHERE CAUSE
OF DEATH WAS NOT CONTESTED. U.S. CONST. AMEND. XIV; N.Y.
CONST. ART. I, §6 . . . . . . . . . . . . . . . . . .
126
POINT VIII
THE PROSECUTOR'S SUMMATION COMMENTS, WHICH APPEALED TO
THE JURORS' EMOTIONS, SHAMELESSLY VOUCHED FOR THE
INTEGRITY OF THE PROSECUTOR'S OFFICE, AND DENIGRATED THE
DEFENSE FUNCTION, DENIED MR. HEMPHILL DUE PROCESS. U.S.
AMEND. XIV; N.Y. CONST., ART. I, §6 . . . . . . . . .
129
POINT IX
THE COURT DENIED MR. HEMPHILL DUE PROCESS AND HIS RIGHT
TO BE PRESENT DURING A CRITICAL STAGE OF THE TRIAL, WHEN
IT REMOVED HIM FROM THE COURTROOM PRIOR TO THE JURY BEING
POLLED, WITHOUT WARNING HIM THAT HE WOULD BE REMOVED IF
HE CONTINUED TO DISRUPT THE PROCEEDINGS. U.S. AMENDS.
VI, XIV; N.Y. CONST. ART. I, §6. . . . . . . . . . .
134
POINT X
THE INTEGRITY OF THE GRAND JURY PROCEEDINGS WAS
COMPROMISED WHERE THE PROSECUTION FAILED TO PRESENT ANY
OF THE EXCULPATORY EVIDENCE RELATING TO THE
IDENTIFICATIONS OF NICHOLAS MORRIS; THE COURT ERRED IN
DENYING THE DEFENSE MOTION TO DISMISS THE INDICTMENT.
U.S. AMENDS. V, XIV; N.Y. CONST., ART. I, §2.
136
A.
The Relevant Facts
137
B. The Prosecutor Compromised The Integrity of The
Grand Jury Proceedings By Failing To Disclose
That Numerous Eyewitnesses Had Identified
Nicholas Morris As The Shooter.
. . . . .
13 9
POINT XI
THE COURT ERRED IN REFUSING TO HOLD A FRANKS HEARING
WHERE THE DEFENSE CAME FORWARD WITH SPECIFIC ALLEGATIONS
DEMONSTRATING THAT THE STATEMENTS IN THE WARRANT
APPLICATION TO OBTAIN MR. HEMPHILL'S DNA WERE RECKLESSLY
FALSE. U.S. CONST., AMEND. IV; N.Y. CONST., ART. I, §12;
FRANKS V. DELAWARE, 438 U.S. 154 (1978).
142
A.
The Relevant Facts
B.
The Defense Was Entitled To A Hearing To
j
V
J
143
SA008
Challenge Ciuffi's False Statements In Support
Of The DNA Search Warrant. . . . . . .
146
POINT XII
MR. HEMPHILL WAS DENIED HIS CONSTITUTIONAL RIGHT TO A
SPEEDY TRIAL DUE TO THE SEVEN-YEAR DELAY IN HIS
PROSECUTION WHERE THE PROSECUTION FAILED TO ADEQUATELY
EXPLAIN THE DELAY. U.S. CONST., AMENDS. VI, XIV; N.Y.
148
CONST., ART. I, §6, 12.
149
A. Relevant Facts .
B.
The Court Erroneously Applied The Taranovich
Factors In Denying Mr. Hemphill's Speedy Trial
Motion.
. . . . . . . . . . . . . . . . .
152
POINT XIII
THE COURT ERRED WHEN IT APPLIED THE WRONG LEGAL STANDARD
TO DENY THE DEFENSE REQUEST FOR A SINGLE ADJOURNMENT OF
SENTENCE TO ALLOW COUNSEL TO FILE A C.P.L. §330.30 MOTION
ALLEGING SERIOUS JUROR MISCONDUCT BASED ON SPECIFIC
ALLEGATIONS THAT THE JURY FOREMAN KNEW A PROSECUTION
WITNESS AND HAD SPOKEN TO HER ABOUT THE CASE DURING THE
TRIAL. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6.
. . . . . . . . . . . . . . . . . . . . . . . .
155
POINT XIV
THE 25-YEARS-TO-LIFE PRISON SENTENCE IS EXCESSIVE WHERE
MR. HEMPHILL WAS A FIRST OFFENDER WITH A HISTORY OF
EMPLOYMENT AND SUPPORTING HIS FAMILY. U.S. AMEND. XIV;
N.Y. CONSGT., ART. I, §6.
159
CONCLUSION
162
STATEMENT PURSUANT TO RULE 5531
lA
PRINTING SPECIFICATIONS STATEMENT
2A
.)
vi
J
SA009
TABLE OF AUTHORITIES
CASES
Larkin v Nassau Electric R. Co., 205 N.Y. 267, 269 (1912)
104
Matter of Abe A., 56 N.Y.2d 288 (1982)
87
People v. Alicea, 37 N.Y.2d 601 (1975)
130
People v. Archie, 28 Misc. 3d (Sup. Ct., Kings Co. 2010)
140
People v. Ashwal, 39 N.Y.2d 105 (1976)
130
People v. Barrett, 189 A.D.2d 879 (2d Dep't. 1993)
114
People v. Bell, 153 A.D. 3d (1st Dep't. 2017)
100
People v. Bennette, 56 N.Y.2d 142
114
People v. Berger, 52 N.Y.2d 214 (1980)
88
People v. Berry, 27 N.Y.3d 10 (2016)
84, 110
People v. Bleakley, 69 N.Y.2d 490 (1987)
People v. Bradley, 99 A.D.3d 934
83
(2d Dep't. 2012)
103, 107
People v. Brisco, 145 A.D.3d 1028 (2d Dep't. 2016)
131
People v. Brown, 201 A.D.2d 576 (2d Dep't. 1994)
114, 125
People v. Burton, 138 A.D.3d 882 (2d Dep't. 2016)
135
People v. Calabria, 94 N.Y.2d 519 (2000)
130
People v. Carter, 40 N.Y.2d 933 (1976)
131
People v. Cassas, 84 N.Y.2d 718 (1995)
125, 126
People v. Chambers, 18 A.D.3d 571 (2d Dep't. 2005)
127
People v. Collins, 145 A.D.3d 1479 (2d Dep't. 2016).
People v. Cronin, 60 N.Y.2d 430 (1983)
103, 130
128
People v. Curry, 153 Misc. 2d 61 (Sup. Ct., Queens
County 1992)
140
People v. Dachille, 14 A.D.2d 554 (2d Dep't. 1961)
103
People v. Danielson, 9 N.Y.3d 342 (2007)
83
People v. DeJesus, 134 A.D.3d 463
(1st Dep't.
2015)
.)
122,123, 131
People v. DePippo, 27 N.Y.3d 127 (2016)
116
People v. Deacon, 96 A.D.3d 965 (2d Dep't. 2012)
118
People v. Delgado, 80 N.Y.2d 781 (1992)
160
People v. DiAntonio, 174 A.D.2d 356 (1st Dep't. 1991)
110
vii
SA010
People v. DiMaria, 22 A.D.3d 229 (1st Dep't. 2005)
124
People V. DiPippo, 27 N.Y.3d 127 (2016)
87
83, 84
People v. Diaz, 115 A.D.3d 498 (1st Dep't. 2014)
People v. Dohnohue, 229 A.D.2d 396 (2d Dep't. 1996)
129
People v. Douglas, 4 N.Y.3d 777
96
(2005)
People v. Edwards, 37 A.D.3d 289 (1st Dep't. 2007)
160
People v. Encarnacion, 6 Misc. 3d (A)
96
People v. Estrada, 142 A.D.2d 512 (1st Dep't. 1988)
113
People v. Etheridge, 71 A.D.2d 861 (2d Dep't. 1979)
117
People v. Farrar, 52 N.Y.2d 302 (1981)
160
109, 111
People v. Fitzpatrick, 40 N.Y.2d 44 (1976)
People v. Foss, 267 A.D.2d 505 (3d Dep't. 1999)
127
People V. Foy,32 N.Y.2d 473
156
(1973)
146
People v. Franklin, 137 A.D.3d 550 (1st Dep't. 2016)
122, 123
People v. Garcia, 25 N.Y.3d 77 (2015)
People v. Gaston, 147 A.D.3d 1219 (3d Dep't. 2017)
110
People v. Goldstein, 73 A.D.3d 946,948 (2d Dep't. 2010)
139
People v. Gonzales, 92 A.D.2d 873 (2d Dep't. 1983)
117
People v. Grierson, 154 A.D.3d 1071(3d Dep't. 2017)
110, 123
People v. Griffiths, 247 A.D.2d 550 (2d Dep't. 1998)
111
People v. Hardy, 4 N.Y.3d 192 (2005)
42, 96, 97, 100
People v. Huston, 88 N.Y.2d 400 (1996)
140
People v. Isla, 96 A.D.2d 789(lst Dept. 1989)
139
People v. Jardin, 154 Misc. 2d 172 (Bx. Sup. 1992)
125
People v. Johnson, 37 N.Y.2d 778 (1975)
135
People v. Jones, 227 A.D.2d 982 (4th Dep't. 1996)
157
People v. King, 146 A.D.2d 648
160
People v. Ko, 15 A.D.3d 173
(2d Dep't. 1989)
(1st Dept. 2005)
People v. LaPorte, 306 A.D.2d 93 (1st Dep't. 2003)
People v. Lancaster, 69 N.Y.2d 20 (1986)
People v. Lee, 178 Misc. 2d 24
130
138, 139
(Sup. Ct., Nassau Cty 1998). 140
People v. Lloyd, 115 A.D.3d 766 (2d Dep't. 2014)
People v. Lovella, 1 N.Y.2d 436 (1956)
viii
J
96
123, 126
132
SA011
People v. Martinez, 80 N.Y.2d 549 (1992)
147
People v. McGhee, 103 A.D.3d 667 (2d Dep't. 2013)
127
People v. McLeod, 122 A.D.3d 16 (1st Dep't. 2014)
102, 103
People v. Mitchell, 82 N.Y.2d 509 (1993)
138, 139
People v. Montague, 130 A.D.3d 1100 (3d Dep't 2015)
155
People v. Morales, 80 N.Y.2d 450 (1992)
135
People v. Morel, 131 A.D.3d 855 (1st Dep't. 2015)
139
People v. Moses, 63 N.Y.2d 299 (1984)
88
People v. Navarette, 131 A.D.2d 326 (1st Dep't. 1987)
People v. Negron, 26 N.Y.3d 262 (2015)
110, 113
87, 117, 118
People v. Notey, 72 A.D.2d 279 (2d Dep't. 1980)
160
People v. Pacheco, 56 A.D.3d 381 (1st Dep't. 2008)
141
People v. Paperno, 54 N.Y.2d 294 (1981)
131
People v. Parker, 57 N.Y.2d 136 (1982)
135
People v. Price, 135 A.D.2d 750 (2d Dep't. 1987)
117
People v. Primo, 96 N.Y.2d 351 (2001)
116, 117
People v. Rahim, 91 A.D.3d 970 (2d Dep't. 2012)
153
People v. Redd, 141 A.D.3d 546 (2d Dep't. 2016)
131
People v.
(Gregory) Reed, 64 N.Y.2d 1144 (1985)
82
People v.
(Mary) Reed, 40 N.Y.2d 204 (1976)
82
People v. Reid, 19 N.Y.3d 382 (2012)
43, 96, 97, 99
People v. Rivas, 306 A.D.2d 10 (1st Dep't. 2003)
134, 135, 136
People v. Rivera, 283 A.D.2d 202 (1st Dep't. 2001)
147
People v. Rodriguez, 64 N.Y.2d 738 (1984)
124
People v. Rohadfox, 114 A.D.3d 1217 (4th Dep't. 2014)
157
People v. Ross, 56 A.D.3d 380 (1st Dept. 2008)
125
People v. Russell, 99 A.D.3d 211 (1st Dep't. 2012)
82, 111
People v. Schlesinger Electrical Contractors, Inc., 143 A.D.3d
516 (1 st Dept. 2016)
·''
96, 99
People v. Schulz, 4 N.Y.3d 521 (2005)
117
People v. Settles, 46 N.Y.2d 154 (1978)
118
People v. Seybold, 216 A.D.2d 935 (4th Dep't. 1995)
People v. Solimine, 18 N.Y.2d 477 (1966)
ix
J
146, 148
146
SA012
People v. Soto, 113 A.D.3d 153
(1st Dep't. 2013)
118, 120
People v. Southall,156 A.D.3d lll(lst Dep't. 2017)
157
People v. Spears, 64 N.Y.2d 698 (1984)
156, 157
People v. Stevens, 76 N.Y.2d 833 (1990)
127, 128
People v. Suitte, 90 A.D.2d 80 (2d Dep't. 1982)
160
People v. Susankar, 34 A.D.3d 201 (1st Dep't. 2006)
157
People v. Taranovich, 37 N.Y.2d 442 (1975)
149, 150, 151, 152
People v. Thompson, 22 N.Y.3d 687 (2014)
140
People v. Torres, 289 A.D.2d 136 (1st Dep't. 2001)
119
People v. Wearen, 98 A.D.3d 535 (2d Dep't. 2012)
153
People v. Wieber, 202 A.D.2d 789 (3d Dep't. 1994)
111
People v. Wiggins, 143 A.D.3d 451 (1st Dep't. 2016)
153
People v. Wilkins, 33 A.D.3d 409 (1st Dep't. 2006)
135
People v. Williams, 56 N.Y.2d 236 (1982)
128, 159
People v. Wise, 46 N.Y.2d 321 (1978)
104
People v. Wright, 125 Misc.2d 550 (Sup. Ct., Bx Cty 1984)
140
Sloan v. New York Central Railroad Co., 45 N.Y. 12'5 (1871)
104
FEDERAL CASES
Alford v. United States, 282 U.S. 687 (1931)
114
Barker v. Wingo, 407 U.S. 514
152
(1972)
Coleman v. Thompson, 501 U.S. 722 (1991)
158
Crane v. Kentucky, 476 U.S. 683 (1986)
116
Crawford v. Washington, 541 U.S. 36 (2004)
95, 96, 97
Franks v. Delaware, 438 U.S. 154 (1978)
4, 15, 142, 146, 148,
Illinois v. Allen, 397 U.S. 337 (1970)
135
Jackson v. Virginia, 443 U.S. 307 (1979)
Nevada v. Jackson, 569 U.S. 505 (2013)
82, 95
116
STATUTES
)
C.P.L. §§210.20 (1) (b), (h)
137
C.P.L. §§450.15(1), 460.15
158
C.P.L. §30.30 . . .
153
X
j
SA013
-,
51, 113
C.P.L. §60.35
49
C.P.L. §60.35 ( 12 6 6)
109, 113
C.P.L. §60.35(3)
C.P.L. §60.40
114
C.P.L. §60.40(1)
114
C.P.L. §260.20
135
C.P.L. §330.30
passim
157
C.P.L. §330.30(2)
9
C.P.L. §440
''
C.P.L. §440.10
79, 156, 158
C.P.L. §60.35
109, 110
C.P.L §60. 35 (1)
109
C.P.Law §260.20
135
Penal Law section 1. 05 [6]
160
j
xi
j
SA014
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION:
FIRST DEPARTMENT
----------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
-againstDARRYL HEMPHILL,
Defendant-Appellant.
----------------------------------------x
PRELIMINARY STATEMENT
Darryl Hemphill appeals from a judgment of the Supreme
Court, Bronx County, rendered January 6, 2016, convicting him,
after a jury trial, of second-degree murder (P.L. §125.25(1))
and sentencing him to 25 years' to life imprisonment (Barrett,
J., on motions, trial and sentence).
Timely notice of appeal was filed. On November 29, 2016,
this Court granted Mr. Hemphill leave to appeal as a poor
person and assigned Robert S. Dean, as counsel.
No stay has been sought.
defendants
Mr: Hemphill had no co-
and is currently incarcerated pursuant to the
judgment.
1
,
SA015
QUESTIONS PRESENTED
1.
Whether Mr. Hemphill's guilt was not
proven beyond a reasonable doubt where
multiple eyewitnesses independently
identified another man, Nicholas Morris,
as the shooter, and Morris possessed .9 mm
ammunition, the type used in the shooting,
and had bruises on his knuckles consistent
with his involvement in the fistfight
which preceded the shooting. U.S. Const.,
Amend. VI, XIV; N.Y. Const., Art. I, §6.
2. Whether the court denied Mr. Hemphill
the right to confront the witnesses
against him where it admitted Nicholas
Morris's guilty plea statements to prove
that Morris possessed a different caliber
gun on the date of the shooting, not the
.9mm that killed the victim, because the
defense had opened the door to this
evidence, even though counsel had
scrupulously followed the court's in
limine rulings. Const., Amend. VI; N.Y.
Const., Art. I, §6.
3. Whether the court denied Mr. Hemphill
his due process right to a fair trial, to
confront witnesses, and to present a
defense where it prohibited counsel from
establishing a critical witness's prior
inconsistent statements about her
identification of Morris because counsel
had not adequately confronted the witness
with the inconsistency, although counsel
had read verbatim the questions and
answers the witness had provided during
her grand jury testimony; the prosecution
then exploited the court's erroneous
ruling to argue that the defense was
fabricating evidence, an argument the jury
seized upon during deliberations. U.S.
Const., Amend. XIV; N.Y. Const., Art. I,
§6.
4.
Whether the court denied Mr. Hemphill
due process by repeatedly allowing the
prosecution, over constant objection, to
impeach its own witnesses and unfairly
2
SA016
attack the credibility of a key defense
witness. U.S. Const., Amend. XIV; N.Y.
Const., Art. I., §6.
5.
Whether the court denied Mr. Hemphill
his right to present a defense where it
prohibited the introduction of evidence to
counter the prosecution's evidence of Mr.
Hemphill's alleged flight, while allowing
the prosecution to consistently introduce
evidence of Nicholas Morris's innocence
because he did not flee and precluding a
statement that Morris had confessed to the
shooting immediately afterwards and the
weapons recovered from his apartment.
U.S. Amend. XIV; N.Y. Const, Art. I, §6.
6. Whether the court erred in permitting
the prosecution to introduce, over
objection,
hearsay relating to critical
issues without appropriate limiting
instructions. U.S. Amends. VI, XIV; N.Y.
Const., Art. I, §6.
7. Whether the court applied an erroneous
legal standard in allowing .the prosecution
to introduce 12 pictures of the two-yearold victim as well as inflammatory medical
examiner testimony relating to the child's
suffering where cause of death was not
contested. U.S. Amend. XIV; N.Y. Const.
Art. I, §6.
8. Whether the prosecutor's summation
comments which appealed to the jurors'
emotions, shamelessly vouched for the
integrity of the prosecutor's office and
denigrated the defense function denied Mr.
Hemphill due process. U.S. Amend. XIV;
N.Y. Const., Art. I, §6.
9. Whether the court denied Mr. Hemphill
due process and his right to be present
during a critical stage of the trial, when
it removed him from the courtroom prior to
the jury being polled, without warning him
that he would be removed if he continued
to disrupt the proceedings. U.S. Amend.
VI, XIV; N.Y. Const., Art. I, §6.
3
SA017
10. Whether the integrity of the grand
jury proceedings was compromised where the
prosecution failed to present any of the
exculpatory evidence relating to the
identifications of Nicholas Morris; the
court erred in denying the defense motion
to dismiss.
U.S. Amend. V, XIV; N.Y.
Const., Art. I, §2.
11. Whether the court erred in refusing
to hold a Franks hearing where the defense
came forward with specific allegations
demonstrating that the statements in the
warrant application to obtain Mr.
Hemphill's DNA were recklessly false.
U.S. Const, Amend. IV; N.Y. Const., Art.
I, §12; Franks v. Delaware, 438 U.S. 154
(1978).
12. Whether Mr. Hemphill was denied his
constitutional right to a speedy trial due
to the seven-year delay in his prosecution
where the prosecution failed to adequately
explain the delay.
U.S. Const., Amend.
XIV; N.Y. Const., Art. I, §6.
13. Whether the court erred when it
applied the wrong legal standard to deny
the defense request for a single
adjournment of sentence to allow counsel
to file a C.P.L. §330.30 motion alleging
serious juror misconduct based on specific
allegations that the jury foreman knew a
prosecution witness and had spoken to her
about the case during the trial.
U.S.
Const., Amend. XIV; N.Y. Const., Art. I,
§6.
14. Whether the 25-years-to-life prison
sentence was excessive where Mr. Hemphill
was a first offender with a history of
employment and supporting his ·family.
U.S. Amend. XIV; N.Y. Const., Art. I, §6 .
.J
4
SA018
INTRODUCTION
On
Easter
morning
in
April
2006,
two-year-old
David
Pacheco, Jr., was shot and killed by a stray bullet that pierced
his mother's minivan as she was driving her family on Tremont
The shooting resulted from a fistfight
Avenue in the Bronx.
minutes
earlier during which Ronell Gilliam and an African-
American man in a blue top fought with a group of Hispanic men
The sole issue at trial was the identity of the
and women.
shooter.
Within hours of
the
neighborhood witnesses,
shooting,
based on interviews with
including a woman named Michelle Gist,
the police had identified Gilliam and come to suspect his best
friend, Nicholas Morris, of the shooting.
Morris subsequently
appeared on News 12 to proclaim his innocence.
When the police
searched his apartment they found guns and ammunition, including
a
. 9mm bullet,
Upon
Morris's
the type of ammunition used in the shooting.
arrest,
the
police
observed
bruises
knuckles consistent with his having been in a fistfight.
on
his
Three
witnesses then independently identified Morris as the shooter in
a lineup and another picked him out of a photo array as looking
like the shooter.
Based on this evidence, the prosecution indicted Morris and
proceeded to
trial
against him in 2008.
Following opening
statements, the court declared a mistrial with the prosecution's
consent.
At the prosecution's insistence, in exchange for his
5
j
SA019
-,
immediate
release
from
prison,
guilty to possessing a
. 357
Morris
subsequently
pleaded
caliber gun on the day of
the
shooting.
In 2011, the prosecution obtained a warrant to obtain Mr.
Hemphill's DNA, to test it against DNA found on a blue sweater
recovered from Gilliam's apartment shortly after the incident.
While Mr. Hemphill's DNA was found in a single location on the
sweater's collar, not a single witness identified the sweater,
which was covered in metal shavings and moth-eaten, as the one
worn by the shooter.
Hemphill.
Nor did any witness ever identify Mr.
In fact, two additional years passed from the time of
the DNA match until Mr.
Hemphill's indictment and subsequent
arrest.
The
2015
trial which resulted in Mr.
conviction was pervaded by error.
Hemphill' s
murder
Despite the prosecution's
failure to prove Mr. Hemphill's identity as the shooter beyond
a
reasonable doubt,
the court' s pat tern of erroneous rulings
resulted in a conviction that lacks integrity.
The
court
allowed
the
prosecution,
Confrontation Clause objection,
over
a
specific
to introduce Morris's guilty
plea statements to prove that Morris did not possess the .9 mm
murder weapon.
The court ruled that the defense had opened the
door to this evidence by mentioning during opening statements
that .9mm ammunition had been recovered from Morris's apartment.
But
this
evidence-based
observation
6
adhered
to
the
court's
SA020
specific in limine ruling relating to the admissibility of only
certain contraband recovered from Morris's apartment.
The court also restricted counsel's cross-examination of a
critical witness, Brenda Gonzalez, who had attempted to break up
the
fight
between
Al though Gonzalez
Morris
in a
the
blue-clad
shooter
shortly after the
and
her
friend.
shooting had identified
lineup and described her interactions with him
during her 2006 and 2007 grand jury testimony against Morris and
Gilliam,
the
court
ruled
that
counsel
had
not
adequately
confronted her with her prior testimony to allow impeachment.
While
counsel
had
read
verbatim
from
the
grand
jury
testimony, the court ruled that because counsel had confused the
year
of
that
testimony,
Gonzalez
had
not
been
adequately
confronted with her prior inconsistent statements.
The court
then allowed the prosecution to call the court reporter from the
2006 grand jury proceedings to demonstrate that Gonzalez had not
provided the
testimony
identifying Morris which counsel
had
recounted.
The court would not allow the defense to call the
2007
jury
grand
reporter
to
establish
the
inconsistency.
Thereafter, the prosecutor argued on summation that the defense
had misled the jury about Gonzalez's prior testimony.
deliberations,
reporter's
)
testimony.
During
the jury repeatedly asked to rehear the court
testimony relating
Counsel
to Gonzalez's
renewed his
2006
objection that
grand
the
jury
court's
ruling had misled the jury on an issue critical to the defense.
7
.)
SA021
In contrast to the court's strangely restrictive rulings
relating to Mr. Hemphill's right to cross-examination, the court
allowed
the
prosecution great
leeway
in impeaching its
own
The court also allowed the prosecution to badger a
witnesses.
critical defense witness about a remote prior conviction and
introduce a certificate of conviction relating to that offense.
Similarly, the court applied the hearsay rules in a manner
that
solely
benefitted
the
prosecution,
allowing
the
introduction of hearsay about the circumstances surrounding the
recovery of
a
blue
sweater,
Ronnell
Gilliam's
retaining
an
attorney allegedly paid for by Mr. Hemphill, Morris's consent to
DNA
tests
contrast,
and
his
despite
exculpatory
an
evidence admissible,
initial
statements
in
limine
to
News
ruling
12.
In
finding
the
the defense was precluded from eliciting
that shortly after the shooting, Mr. Hemphill's attorney offered
to make him available to the police if they wanted to speak with
The
him.
court also
ruled
inadmissible on hearsay grounds
Morris's statement to a defense witness admitting the shooting.
Although
the
sole
issue
at
trial
was
the
shooter's
identity, the court allowed the prosecution, over objection, to
admit multiple pictures depicting the child's body.
The court
also allowed the medical examiner to describe, over objection,
the excruciating nature of the child's injuries.
j
served no purpose but to inflame the jury's passions in this
already
emotion-charged
case.
The
8
)
These rulings
prosecution's
summation
SA022
similarly
played
to
the
jurors'
emotions,
vouched
for
the
integrity of the prosecutor's office and denigrated the defense
function.
When the jury returned its verdict, Mr. Hemphill declared
his innocence and, emotionally distraught, asked to be removed
from the
Rather than adjourning the proceedings
courtroom.
momentarily to allow Mr.
Hemphill to regain his composure in
order to be present for the polling of the
jury,
the court
ordered
jurors
that
him
removed,
and
remarked
to
the
the
outburst was consistent with that of a guilty man.
Prior
to
sentence
counsel
timely
sought
a
single
adjournment to investigate a serious claim of juror misconduct.
During sealed proceedings, counsel advised the court that he had
learned after the verdict that the jury foreman was friends with
a prosecution witness, Mr. Hemphill's estranged sister-in-law.
Counsel
had
confirmed
that
the
juror had
spoken with this
witness during the trial and had not revealed his friendship
with her during voir dire or trial.
attempts to file a C.P.L.
Counsel explained that his
§330.30 motion had been hindered by
the Christmas holidays during which witnesses were out of town.
The court refused to grant counsel's adjournment request
ruling
that
the
defense
could
file
a
C.P.L.
§440
motion
following sentence which would preserve Mr. Hemphill's rights.
Counsel
protested
that
the
two
motions
were
procedurally
distinct and he wished to file a C.P.L. §330.30 motion prior to
9
SA023
sentence.
But the court refused to adjourn sentencing, despite
counsel's protest that he was not ready to proceed and had not
yet
submitted a
The
pre-sentencing memorandum.
court
then
imposed the maximum 25 years-to-life prison sentence although
Mr.
Hemphill
had
no
criminal
record,
a
steady
history
of
employment and supported his children.
STATEMENT OF FACTS
On Easter Morning In April 2006, Following A Street
Fight,
A Stray Bullet Kills Two-Year-Old David
Pacheco, Jr.; Based On Witness Accounts, The Police
Quickly Identify Ronnell Gilliam and Nicholas Morris
As the Culprits.
At
approximately
2:00
p.m.
on
April
16,
2006,
Easter
Sunday, police received information about a shooting in the area
of Tremont and Harrison Avenues in the Bronx (Detective Ronald
Jimick:
653-654) . 1
After learning that a two-year-old, David
Pacheco, Jr.,
had been shot and killed, the police extensively
canvassed
area
the
for
witnesses
Detective Jimick spoke with
and
had
known
for
years
as
being
identifying them as "Burg" and "Nick"
After
speaking
with
(655-656).
Michelle Gist, who had witnessed a
fight prior to the shooting (661-662).
she
evidence
Gist,
Gist recognized two men
involved
in
the
fight,
(743-744, 796, 798).
police
conducted
a
computer
'Numbers in parentheses refer to pages of the trial minutes
dated October 26, 2015, et seq. Numbers preceded by "J.S." refer
to the pages of the jury selection minutes dated September 21,
2015, et seq. Numbers preceded by "JS2" refer to the continuation
of jury selection dated October 14, 2015 et seq. Numbers preceded
by "S." refer to the pages of the sentencing proceedings and
"PSR." to the pre-sentencing report.
10
J
SA024
search for a person with the nickname "Burg" which was traced to
The police gained access to Gilliam's
Ronnell Gilliam (662).
apartment where they recovered from a closet a blue Izod sweater
in a plastic bag
apartment,
(664).
Gilliam,
brother William,
While the police were searching his
who
was
evading
the
police,
who was present during the
called his
search;
Gilliam
asked if the police were there and told William to get rid of
"the shirt"
The
(667, stipulation: 1494) (emphasis added).
police
conducted
additional
computer
searches
to
known
associates
(668).
Based
on
Gilliam's
identify
conversations with Gist, Morris's association with Gilliam, and
his meeting the descriptions of the shooter provided by the 911
callers, the police went to search Morris's apartment (742).
midnight of April 16,
Morris's
(668).
Bronx
2006,
apartment
By
the police had gained access to
located at
1962
University Avenue
Morris was not there, but his family allowed the police
to search his bedroom, where they recovered inter alia, various
types of ammunition from his night stand -- for a .357 revolver
and a
.9mm gun -- the type of weapon used during the shooting
(679,750).
The police arrested Morris the following day,
2006, at the News 12 television station (682).
April 17,
That same day,
another witness viewed a photo array and picked out Morris,
stating that he looked like the shooter
(757).
On April 18,
2006, the police conducted lineups at 1086 Simpson Street (683).
11
SA025
Of the four witnesses who viewed the lineup,
Morris as the shooter (684, 697).
identify Morris,
lineup
for
a
three identified
The one witness who did not
did not want to be involved and viewed the
couple of
seconds
(763).
Based on the
three
identifications, Morris was arrested and charged with Pacheco's
murder (697).
Morris's right knuckles were bruised as if he had
been in a fight (721, 752)
On April
attorney,
26,
2006,
Ronnell
Gilliam,
accompanied by an
met with prosecutors and police detectives at
Bronx District Attorney's office (723-725).
the
During this first
statement, Gilliam told the police that Morris was the shooter
(Ronnell Gilliam:
1010).
A few weeks later,
Gilliam
to
a
returned
make
second
waiting to speak to the police,
statement
on May 9,
2006,
(725).
While
Gilliam received a call from
Morris who was at Rikers Island (726, 773).
Gilliam then told
the police that Morris was innocent and Mr.
Hemphill was the
shooter (1014-1015).
On October 20, 2006, Gilliam was arrested
and charged with hindering the prosecution and tampering with
evidence (Jimick: 729).
Aware That DNA Was Obtained From The Blue Sweater, The
Prosecution Proceeds To Trial Against Nicholas Morris,
Before Agreeing To A Mistrial And Procuring Morris's
Guilty Plea To Weapon Possession.
In October 2006,
OCME tests revealed that DNA capable of
being compared to a known suspect had been recovered from the
collar of the blue sweater taken from Gilliam's apartment. See
12
j
SA026
Court File: Notice of Motion To Dismiss for Pre-Arrest Delay at
p.
On March 3,
2.
2008,
the
police obtained a
sample of
Morris' s DNA which did not match the DNA recovered from the
sweater.
See
denying
Motion
Court File:
To
Decision and Order dated 2/4/14,
Dismiss
Due
To
Pretrial
Delay
at
2.
Nonetheless, the prosecution proceeded to trial against Morris.
Id.
Following
opening
statements
2008,
the
By that time, Morris had been in prison for two years.
On
prosecution agreed to a mistrial.
on April
14,
Id., fn.2.
May 29, 2008, the prosecution agreed to his immediate release if
he pleaded guilty to weapon possession charges and acknowledged
that on the date of the incident he possessed a
.357 caliber
revolver -- not the .9mm weapon that killed Pacheco.
(1181-1185)
Morris
attorney's advice,
as
took
the
plea
against
Id., at 2;
his
defense
there was no evidence supporting that
Morris possessed a .357 caliber gun on the day of the incident
(1182-1183).
In April 2011, The Court Issues A Warrant To Obtain
Mr. Hemphill's DNA Which Matches The DNA On The Blue
Sweater· The Prosecution Then Waits An Additional Two
Years To Indict Mr. Hemphill Without Presenting To The
Grand Jury Any Of The Exculpatory Evidence Relating To
Nicholas Morris.
Shortly after
the
2006
incident,
Hemphill
and his
family relocated to North Carolina.
See Court File, Notice of
Motion To Dismiss, dated November 6,
2013 at 2.
On April 26,
search warrant
to allow the
2011,
Justice
Barrett
issued a
13
J
Mr.
SA027
police to obtain Mr. Hemphill's DNA.
Warrant.
See Court File:
Search
The affidavit in support of the warrant, sworn to by
Detective Nicholas Ciuffi,
represented that
"an eyewitnesses
[sic] known to the Police Department" "has now come forward to
name Daryl [sic] Hemphill as the shooter."
11 [emphasis added].
Id., Affidavit at
1
The affidavit also suggested that the DNA
evidence had been "left upon the body of the murder victim."
Id., at 116.
On June 24, 2011, OCME issued a report reflecting
that Mr. Hemphill was the source of the DNA found on the blue
sweater's
collar.
Court
File:
Answering Affirmation
dated
December 11, 2013 at 10.
Mr. Hemphill was not arrested until April 24, 2013, because
there
was
insufficient
evidence
to
arrest
him
discovery of additional evidence or witnesses.
pending
the
Id., Notice of
Motion To Dismiss dated November 6, 2013, Memorandum of Law at
1; Decision and Order dated 2/4/14 at
3.
Mr. Hemphill waived
extradition from North Carolina and was arraigned on April 26,
2013.
Id.
During the grand jury proceedings which resulted in
the murder indictment, the prosecution conceded that "the People
did not present to the grand jury evidence of the identification
of Nicholas Morris as the individual who shot and killed David
Pacheco, Jr."
Id., Answering Affirmation at 5.
14
)
SA028
The In Limine Rulings'
The Court Precludes Evidence Relating To Weapons
Recovered From Nicholas Morris's Apartment Within
Hours Of The Shooting.
Before
preclude
jury selection began,
the
defense
from
the prosecution sought
eliciting
that
contraband
to
was
recovered from Morris's apartment within hours of the shooting.
According to the prosecution, the only admissible evidence was
the single
. 9mm caliber bullet recovered from Morris's night
stand (J.S. 105)
The police had also recovered from Morris's
bedroom an .8mm starter's pistol, a
its
magazine,
.357
caliber
.22 caliber rifle missing
ammunition,
and
two
photographs
depicting Morris brandishing guns and having them brandished at
him while smoking a blunt
(J.S.
106-107).
According to the
prosecution, this evidence merely showed that Morris was "into
guns" and was irrelevant (106-107)
Counsel
urged
the
court
to
deny
the
prosecution's
application, arguing that the evidence was relevant to Morris's
guilt and the prosecution had intended to present it at Morris's
trial (J.S. 111-112)
It was relevant that Morris had access to
guns, counsel urged (J.S. 118).
demonstrating
irrelevant,
(J.S.
)
Morris's
propensity
to
possess
guns
was
would mislead the jury and encourage speculation
118-119,
157).
Counsel objected that uncharged crimes
2
Facts relating to the pre-trial motions to dismiss the
indictment and for a Franks hearing will be set forth in the
argument sections addressing those claims.
15
)
The court ruled that evidence
SA029
evidence was precluded out of concern for the rights of the
accused, a concern not present when such evidence was not being
used against a defendant.
Morris's displaying photos of himself
brandishing weapons and his habits relating to firearms were
relevant to Mr. Hemphill's defense that Morris was the shooter,
counsel argued
(J.S.
119-121).
The court suggested that the
evidence would only be relevant if Morris were testifying and
noted the defense's exception (J.S. 122, 157).
The Court Rules That Counsel Can Elicit From The
Investigating Detective That Mr. Hemphill' s Lawyer
Advised The Police That He Was Willing To Talk To Them
About The Incident,
To Rebut The Prosecution's
Evidence Of Flight, But Then Reverses The Ruling.
The prosecution announced it would introduce evidence of
Mr. Hemphill's alleged flight to North Carolina shortly after
the
incident
(J. S.
152) .
Counsel
objected
that
while
Mr.
Hemphill moved with hi_s family to North Carolina following the
incident,
law enforcement knew where to find him because the
family had retained counsel who advised the police that Mr.
Hemphill would be willing to speak to them (J.S. 152-153).
The
court ruled that Mr. Hemphill's leaving the jurisdiction the day
after the incident could constitute evidence of consciousness of
guilt,
but
the
defense
would
be
entitled
to
counter
this
evidence through Mr. Hemphill's testimony (J.S. 153).
Counsel responded that he intended to elicit through the
case officer that he communicated with Mr. Hemphill's attorney
who offered to make Mr. Hemphill available to law enforcement
16
)
SA030
The court responded,
(J.S. 154).
"that's fine,
but that will
not eliminate the basis for the consciousness of guilt charge"
(J.S. 154) (emphasis added).
Following opening statements, after counsel had suggested
that
the
police
knew
Hemphill's
Mr.
location
based
on
conversations with his attorney, the court denied it had ruled
that the testimony could be elicited through the case detective
and warned counsel he could not elicit "hearsay" concerning his
client's "state of mind"
(74, 141-142, 146-148).
The Court Deems Admissible The Soundless News 12
Interview With Morris To Demonstrate His Appearance
Shortly After The Incident And The Broadcast's
Influence On The Subsequent Line-up Identifications.
The prosecution asked to introduce News 12 footage taken
during Morris's interview the day after the incident (J.S. 122129).
According to the prosecution, the videotape was relevant
because it was viewed by witnesses who subsequently identified
Morris during the lineup and it also showed that Morris did not
which
some
eyewitnesses had attributed to the shooter (J.S. 122-124).
The
prosecution
but
have
tattoos
on
his
recognized
forearms
that
the
a
feature
interview
was
hearsay
offered to play it without sound and the court observed it could
come
in
if
Morris
testified
fabrication (J.S. 123-124)
to
rebut
a
claim
of
recent
The prosecutor advised that Morris
would not testify because, based on his weapon possession guilty
plea, he had been barred from readmission to the United States
17
SA031
after he went to Barbados (J.S. 124).
Counsel was surprised by the suggestion that witnesses had
viewed the interview of Morris prior to the lineups and that
this information had never before been revealed (J.S. 130).
The
prosecution explained that when the witnesses viewed Morris on
television, they did not believe he was the shooter (J.S. 160161) .
Counsel was "taken aback" by the information,
found it
incredible it had not been disclosed previously and objected to
the
witnesses
being asked their
videotape years earlier
(J.S. 164,
conclusions
167).
on viewing
the
The court ruled the
broadcast interview and the part in which Morris displayed his
arms, which was never broadcast, would both be admissible (J.S.
168-169, 182).
The Court Rules That The Prosecution Will Be Given
Substantial Leeway To Impeach Its Own Witnesses.
In light of the prosecution's stated intention to call the
witnesses who had identified Morris
as
the shooter,
counsel
expressed concern that the prosecutor would be allowed to crossexamine his own witnesses (J.S. 183).
The court stated that it
had discretion to allow examination that could be considered
impeachment of prior testimony incriminating Morris (J.S. 185).
The jury's evaluation of the key issue of Morris's culpability
"necessitate[d]
some level of impeachment of the prosecution's
own witnesses"
(J.S.
186).
The court granted the defense an
exception to its ruling and observed that the objection was not
18
.J
SA032
"frivolous"
but
"in
balance"
the
court
would
exercise
its
discretion in favor of the prosecution (J.S. 187)
The
Court
Refuses
To
Limit
The
Prosecution's
Introduction Of Photos Of The Deceased.
Counsel moved to preclude the prosecution from introducing
pictures of the two-year-old' s
dead body,
characterizing the
pictures as overly prejudicial because the cause of death and
path of the bullet would not be contested
(JS2.
3-4) .
The
prosecution offered to "self-sensor" and not introduce seven of
the pictures,
but sought to offer a
long range shot of the
child's body to give "context to the investigation"
recognizing
While
identification,
the
only
contested
issue
(JS2. 7) .
be
would
the prosecutor suggested that defense theories
could change and he needed to prove every element of the crimes
(JS2.8).
Counsel protested the
introduction of photographs of
a
"dead baby still in his diapers" as "extremely disturbing" and
asked that the pictures be precluded (JS2. 9).
The court deemed
the pictures disturbing but not prejudicial because the victim's
photographs were relevant in a homicide trial to establish "the
identity and humanity of the victim" and impress upon the jury
the "importance" of its job (JS2. 13).
to try to "sanitize" the evidence.
the
;
"most
serious
It was not appropriate
Because the case involved
crime known to our civilization"
all
the
photographs were "highly relevant" and the prosecutor would be
19
SA033
permitted to introduce "any and all" the photographs with the
exception of
the
defense
continued to protest,
the
14,
When counsel
(JS2.
13,
16) .
court
admonished him to
save his
arguments for his appellate brief (JS2. 16).
Immediately prior to trial, counsel renewed his objection,
protesting that the sheer number of photographs was cumulative
(4).
The prosecutor responded that he would offer four to five
photographs from the autopsy and three to four others of the
child (4-5).
)
The court ruled that if the prosecution offered 24
pictures of the autopsy,
they could be considered cumulative,
but that the prosecutor would demonstrate "appropriate selfregulation"
(10).
The Trial
Opening Statements
The prosecutor began his opening by advising the jury that
the deceased's mother was driving her car down Tremont Avenue,
"a ride that most of us have taken" when she heard gunshots,
"the kind of sound that many of us who have spent our whole
lives in the Bronx are so used to hearing"
( 12) .
overruled counsel's objection to these comments.
The court
The prosecutor
continued by observing that the bullet pierced the "soft skin"
of "David," resulting in the "two-year-old bleeding out"
(13).
According to the prosecution, following the shooting, the
"innocent stayed" and the guilty fled (17).
Mr. Hemphill ran
to North Carolina while Nicholas Morris walked into News 12 "to
20
)
SA034
)
let police take him in" and "invited them on the air to come
arrest him" (19).
Counsel's objection that "we are getting into
things that are not going to be testified to at trial," was
overruled (19).
The prosecutor continued that Morris's walking
into News 12 was "not what a murderer does"
( 22) .
Moreover,
Morris showed his arms during the interview, revealing that he
did not have tattoos attributed to the shooter (25).
According to the prosecutor,
the DNA recovered from the
blue sweater proved Morris was not the shooter.
But Morris was
not some innocent man; he was on his way to the scene with a
.357
revolver.
overruled
(28).
Counsel's
objection
to
comments
was
While the prosecutor advised the jury that
three witnesses had identified Morris,
ordinarily be considered "over,"
than that"
these
and such a case would
the prosecution was
"better
(20).
The defense observed that the people who identified Morris
as the shooter had been involved in a close altercation with him
minutes earlier
(32).
Not a single disinterested eyewitness
would identify Mr. Hemphill, counsel predicted (33)
witness
who
would
implicate
Mr.
Hemphill
Gilliam,
who had provided inconsistent
incident,
first
identifying Morris as
would
The sole
be
Ronnell
statements after the
the shooter,
then Mr.
Hemphill (39-40)
When the police searched Morris's apartment, a .9mm bullet
was
found,
the caliber of gun used in the incident,
21
)
counsel
SA035
explained
(42).
Morris
also
had bruises
on his
knuckles,
consistent with his having been in an earlier fistfight (43).
Counsel also advised that, while Mr. Hemphill left the area
after the incident, the police knew where he was as he did not
hide or change his name and his lawyer was in contact with law
enforcement (47).
While the evidence would show that at some
point Mr. Hemphill wore the blue sweater, its connection to the
shooting would not be proven,
counsel predicted
(48-49).
It
contained no gunshot residue and the shooter's top had been
described as a shirt by several witnesses, not a sweater (4849) .
Evewitnesses
Describe
A
Ten-Minute
Altercation
Culminating In The Shooting Minutes Later And The
Subsequent Identification Of Nicholas Morris.
On April
16,
2006,
Easter Sunday,
Brenda Gonzalez,
her
daughter, Marisol Santiago, and their respective partners, Jose
Castro and Juan Carlos Garcia were coming from shopping in the
Burnside section of the Bronx (BG: 441; MS: 839; JC: 257; JCG:
803-804).
cousin
(JV:
They were accompanied by Jon-Erik Vargas, Garcia's
875-876;
BG:
441).
As the group walked towards
their home located at 1731 Harrison Avenue, Gonzalez and Castro
were in front of the others, when they encountered a man on a
cell phone who asked "what's up?"
(BG: 442).
The man crossed
the street to approach the group and subsequently again asked
Vargas "what's up?"
(BG: 443; MS:
839; JV:
875).
Although no
one in the group knew the man, he wanted to fight Vargas
22
;
(JV:
SA036
875) .
:
A heavier man Vargas knew as
"Burger"
approached and
Vargas squared off with both (JV. 875).
Gonzalez positioned herself between the thinner man and
Vargas
(BG: 443; MS. 840). She told the men that nobody needed
to fight (MS. 840). The thinner man stated that Vargas was lucky
his mom was there and Vargas responded that Gonzalez was not his
mother (BG: 443).
during
this
fighting
Vargas and the thinner man were face-to-face
initial
(BG:
argument
443-444;
JV:
(JC:
875).
288).
They
Garcia
jumped in to help
then
started
Vargas (JG: 805).
Milagros Pagan, her then 10-year-old son, Justin Bautista
and her then-husband,
Anthony Baez,
also witnessed the fight
(MP: 1079, 1081; JB: 1092; AB: 1157).
Baez tried to break it up
(AB: 1159).
The heavier man pushed Vargas into a car and Vargas fell
(JV: 875, 879; JC: 262).
Vargas got up and punched the heavier
man and then the thinner one
Gonzalez
(JV:
880).
As the men fought,
tried to get the heavier man off Vargas
Castro also tried to break up the fight (JC: 262).
(BG:
444) .
The thinner
man hit Castro three times in the back of the head (JC: 262).
Garcia was also struck by both men (JG: 806; MS: 841).
When the fistfight ended, the thinner man ran from Tremont
Avenue towards University Avenue; Vargas pursued him (JV: 881).
)
Eventually,
Vargas
ran
into
another
car
on
University
returned to where his friends were waiting (JV: 881).
23
and
SA037
The heavier man remained in the area and Vargas grabbed a
milk crate, asked him if he wanted to fight and spit on him (JV:
882) .
The heavier man responded that Vargas was going to get
"shot
for
that"
(JV:
Gonzalez's building
882).
(JV:
The
882)
group
returned
to
outside
Vargas was feeling faint and
Garcia went to get some water to revive him (JV: 882).
The group's initial altercation with the two men lasted ten
minutes
(MS:
861; JC:
292).
give Vargas the water,
As Garcia crossed the street to
shots rang out
(JV: 884)
The shooter
was the thinner man who had returned to the scene within minutes
of the original altercation (JV: 885; JG: 812; BG: 457-458; JC:
267
MS. 843).
According to Baez,
the shooter returned in a
black car with a female driving it; the heavyset man then told
the man to "hold up" but the shooter just "opened up fire"
(AB:
1157).
When the first shot was fired, a minivan driven by Joanne
Sanabria passed by;
that
her
she looked in her rearview mirror and saw
two-year-old
son
difficulty breathing (56-57).
David
Pacheco
Jr.
was
having
She stopped her car a few blocks
away and screamed for help before somebody came to try to revive
her son and took them to the hospital where he later died (5658) .
The
eyewitnesses
all
described
the
shooter
African-American man wearing a blue top and a hat.
as
a
thin
According to
j
Garcia, the shooter's top was a blue short-sleeved "golf shirt"
24
J
SA038
with three buttons on the top and an Izod logo (JG: 809-810).
Because the shirt was short-sleeved, Garcia was able to see a
lettered, script tattoo on the shooter's right forearm (JC: 823824).
Castro was also able to see this tattoo; when Castro was
shown the blue long-sleeved sweater the prosecution introduced
into evidence, he could not identify it, observing that "it was
similar"
to
the
short-sleeved
shooter
as
but
a
common
type
(JC:
283-284;
Ultimately, he recounted that the shooter's top
People's 98C)
was
shooter's
(JC:
295,
296).
Gonzalez
described
the
a
"blue
sweater"
and was
not
to
wearing
asked
identify the one in evidence (BG: 442, 443, 444, 445). Vargas
described
Yankees
evidence
the
hat;
shooter
Vargas
as
wearing
a
"sky blue"
also
never
identified
sweater
and
sweater
in
the
(JV: 877,879, 880).
Santiago merely described the shooter's top as a
sweater" and did not identify the one in evidence
"blue
(MS:
840) .
But she had described the top as a "blue shirt" to the police
immediately after the incident (MS. 861).
lettered
863).
Baez
described the top as "light bluish" with "embroiderment"
(AB:
1160) .
tattoo
on
the
shooter's
She also observed a
forearm
(MS.
He did not identify the sweater in evidence
(1160).
Pagan and Bautista also merely described the thin man as wearing
a
blue
sweater
and were
not
asked to
identify
the
one
in
evidence (MP: 1081; JB: 1092)
Vargas, who had argued with the thinner man face-to-face,
25
SA039
viewed a
lineup two days
shooter (JV: 886).
later and identified Morris as the
Santiago, who did not need glasses, picked
Morris out of the same lineup; at the time she was "sure" about
her identification (MS. 853, 866).
in the 2006 grand jury that
She subsequently testified
she was certain Morris was the
shooter (856, 857, 858, 870).
But by the time of trial, she believed that she had picked
out Morris because she had seen him on News 12 prior to the
lineup (MS. 853).
but
he
did see
Castro never viewed a lineup or photo array,
the
News
12
interview of Morris,
which the
prosecution repeatedly played for the jury, and believed Morris
was not the shooter (JC: 280, 281).
Nonetheless, in 2007 Castro
testified before the grand jury and referred to Morris as the
shooter throughout his testimony (297, 306, 309).
Garcia viewed
the line-up but did not recognize the shooter as being present
(JG:
819).
He had not watched any news reports prior to the
lineup (JG: 819).
Baez was shown a photo array the day after the incident
(AB:
1163; Defense Exhibit E [photo array containing Nicholas
Morris's picture in position 5]).
Baez remembered telling the
police that the shooter "looked like" Morris, but at trial nine
years later insisted that he was only able to narrow down the
photo array to being possibly the men depicted in the number
four
or
five
pictures
(AB:
1170).
But
the
police
report
)
memorializing the April 17, 2006, procedure reflected that Baez
26
)
SA040
:
picked out Morris, saying he looked "like" the shooter (Jimick:
756)
During Brenda Gonzalez' s Cross-Examination Counsel
Confronts Her With Her Prior Grand Jury Testimony
Identifying Morris; The Prosecutor Does Not Object To
The Cross-Examination But Subsequently Accuses Counsel
Of Misleading The Witness.
Gonzalez viewed the lineup two days after the shooting and
had
identified Morris as the shooter (461).
Although Gonzalez
had never seen the News 12 interview with Morris, the prosecutor
played
it
for her and she observed that Morris
chubby" to be the shooter
Morris interview]).
looked "too
(468; People's Exhibit l0l[video of
She also insisted that she had not been
wearing her glasses on the day of the incident and could not see
the shooter's face during the fight or at the lineup (448,469).
On
better
cross-examination
in 2006
Gonzalez
and her memory of
admitted
events
was
her
vision
fresher
was
(476).
Counsel asked if she remembered testifying in the grand jury in
2006 recounting the questions and answers in detail:
Q: And who was the skinny guy?
A: Mr. Morris (479).
Gonzalez responded that she had "never said that" (479) (emphasis
)
added).
The prosecutor refused to stipulate to the accuracy of
minutes,
without
objecting
to
the
dates
of
transcript from which counsel was
reading
(479).
grand
jury
The court
would also not allow counsel to show Gonzalez the transcript to
refresh her recollection (480).
27
J
the
SA041
Gonzalez also denied ever testifying in the grand jury that
she was certain of her identification of Morris.
Again, counsel
read from the grand jury minutes:
Is there any doubt in your mind
Nicholas Morris fire that first shot?
Q:
that
you
saw
A: No doubt.
Gonzalez
insisted she
"didn't say that"
(488).
She did not
recall ever saying in the grand jury that the shooter was Morris
(490).
Counsel continued to read from the transcript:
Q: Are you sure it was Nicholas Morris who fired the shot?
A: Morris is the skinny one.
Q: Have you previously identified Morris as the person
you saw firing that first shot?
A: Yes.
Gonzalez
could
not
recall
this
testimony
or
her
previous
testimony that she had stood between Morris and Vargas during
the initial encounter (489, 491).
Counsel read from the grand
jury transcript:
Q: What did you see happen when Burger came out of the
building?
A.
They came running toward us while we w.as walking
towards my house.
They were running behind us and
finally Morris catched up to us and I got-he started
talking to Jon and I got between Jon and him. (491).
Gonzalez insisted that "they" must have added Morris's name
)
to the transcript because she never knew Morris's name (497).
She also insisted that she had told the police during the
28
)
SA042
··1
Morris
lineup that he was
shooter (500).
"too big on the
cheek"
to be the
Once again, counsel attempted to confront her by
reading from the grand jury transcript.
Q: Who did your recognize?
A: Number 2,
the shooter.
Gonzalez claimed she did not "say that" in the grand jury (500).
Following Gonzalez's testimony,
counsel objected that the
prosecutor had not stipulated to the accuracy of his reading of
the grand jury minutes.
Counsel had never before "encountered"
such a situation and believed it would be difficult to get the
court
reporter
from
the
2006
grand
jury
proceedings.
The
prosecutor responded that he would consider stipulating to the
minutes'
accuracy after he had a chance to review them (506).
Counsel
responded
that
Gonzalez
had
testified on
two
dates
(506).
The prosecutor later sought to call the 2006 grand jury
reporter to establish that Gonzalez had not named Morris as the
shooter at that time (583).
2007
grand
jury
minutes
Counsel had been reading from the
when
he
questioned
Gonzalez,
the
prosecutor explained (583)
Counsel responded that whether he
was
or 2007
reading
form
the
2006
minutes
was
not material
because he had specifically asked about Gonzalez's testimony
before the grand jury (586).
)
"normally
agree"
with
The court responded that it would
counsel,
but
instance," was not "inclined to" (587).
29
)
"in
this
particular
According to the court,
SA043
there had been "more publicity" that would have contaminated the
witness by 2007
The court suggested that the matter
(588) . 3
could be addressed by a stipulation (588).
Counsel protested that allowing the prosecutor to call the
2006 court reporter to testify that Gonzalez had not made the
statements counsel had asked about,
because the statements were
made during the 2007 grand jury proceedings, would mislead the
jury
(592).
But
the prosecutor would not
stipulate
to the
accuracy of the 2007 grand jury testimony because Gonzalez was
not "confronted" with the 2007 minutes (593).
Initially,
would not
the
court
stipulate,
recognized that
if
the prosecutor
the defense might be allowed to recall
Gonzalez and then call the 2007 grand jury court reporter (594).
Counsel
explained
that
his
questioning
had
intentional attempt to mislead Gonzalez (596).
not
been
an
The court urged
the prosecutor to stipulate to the accuracy of the 2007 grand
jury
minutes,
recognizing
that
it
would
"not
get
into
a
situation where the matter is not before the jury" because to do
so would not protect Mr. Hemphill's rights and the fairness of
the trial (594, 596).
Despite the court'p urging the prosecution to stipulate to
the accuracy of the contents of all the grand jury testimony,
the
prosecutor
called
the
2006
3There
grand
jury reporter,
Cheryl
was no evidence supporting the court's speculation
about the impact of publicity.
30
)
SA044
Laurel.
The prosecutor then read from counsel's trial cross of
Gonzalez,
and elicited that Gonzalez had not said that Morris
was
the
skinny guy
( 615) ,
and that she did not say she was
certain Morris was the shooter (616).
Gonzalez did not testify
she had previously identified Morris prior to her grand jury
testimony (616) or that she saw Morris point the gun from across
the street (617).
Gonzalez did not testify in the grand jury
that she saw Morris standing on the corner shooting (617).
She
did not describe seeing Morris speak with Vargas prior to the
shooting (618).
According to Laurel, Gonzalez did not mention
the name Morris or Gilliam (619).
Counsel then elicited that
Laurel did not know if Gonzalez had testified before a grand
jury in 2007 (620).
protested
later
Counsel
the
that
prosecutor
had
misrepresented the record concerning the defense questioning of
Gonzalez in suggesting that counsel had keyed his questions to
the 2006 grand jury date
(711).
Counsel stated that he had
mentioned the 2006 date only once and all his other questions
merely referenced the grand jury testimony without specifying a
date (712).
Again, counsel sought a stipulation concerning the
accuracy of his reading of the 2007 grand jury testimony or to
call
the
2007
grand
previous testimony
jury
(713).
reporter
to
establish
Gonzalez's
The court responded that the only
date mentioned by counsel was the 2006 date, leading the jury to
conclude the statements were made then (714).
31
.)
Counsel responded
SA045
that the jury should learn that the references were to the 2007
proceedings and again asked to call the 2007 court reporter
( 715) .
The
prosecutor
objected
because
Gonzalez
had
not
been
fairly apprised of the statement subject to impeachment (717).
The court recalled that Gonzalez had acknowledged making the
statements and the prosecutor clarified that she had not done so
(717).
The court then ruled that because counsel's questions
were reasonably interpreted to have referenced the 2006 grand
jury proceedings,
permitted
to
call
there was
the
2007
no basis
for
grand
jury
the defense to be
court
reporter
to
establish the content of Gonzalez's 2007 grand jury testimony
(719).
The Prosecutor States His Intent To Pay Michelle Gist
Thousands Of Dollars To Relocate Based On Death
Threats Received After Her Grand Jury Testimony Was
Disclosed Claims That Later Prove To Be "Muddled".
Before calling Michelle Gist, the prosecutor made a Giglio
disclosure revealing that, because Gist was allegedly subject to
death threats after the disclosure of her grand jury testimony,
the prosecution intended to pay her $2000 to $4000 to move out
of
state
(326).
The
prosecutor
sought
to
elicit
as
"consciousness of guilt" evidence that a defense investigator
had told Gist not to come to court
questioned
)
about
these
alleged
threats,
But when Gist was
outside
the
jury's
presence, she explained that the investigator had met with her
32
)
(359)
SA046
shortly after the shooting and said he was working for Morris
(368).
The investigator returned a long time later, while the
Morris
case
remained
pending
The
(370).
prosecutor
then
revealed that Gist had changed her account of these threats and
had originally stated they happened after the Morris case had
been dismissed
(371).
"muddled things"
( 3 7 2)
According to the prosecutor, Gist had
Michelle Gist had pleaded guilty to petit larceny after she
charged
up
her
divorce
(343).
mother's
home
husband's
credit
On April
16,
at
started fighting
1812
card
2006,
she
Harrison Avenue
on her car,
a
during
was
a
contentious
driving to her
when a
group of
white Jaguar X6
(343,
men
381).
There was one Hispanic man and two African-American men in the
fight
(343). Gist got out and yelled at the men, telling them
"there will be none of this on top of my car" (352).
When asked
to mark the position of her car during the fight, Gist made a
"mistake" and placed it on Harrison Avenue, when it was actually
on the corner of Morton Place (383).
Upon witnessing the fight, Gist felt nervous, and when she
got upstairs to her mother's apartment, she told her grandson to
lie on the floor.
She then heard multiple shots (344). Two to
three minutes had passed from the time she had witnessed the
altercation (391).
Gist, 48 years old at the time of trial,
had lived in the
J
neighborhood since 1980.
She knew the first African-American as
33
SA047
"Burgos"
Gist,
and the other man as
"D"
(341,
349)
According to
D was always hanging out on the corner of Burnside and
Harrison Avenue
(349).
She also knew "Nick"
( 34 9) .
Although
Gist claimed to have known "D" for a very long time, he did not
know her (350).
"D" had long hair and it was braided; he wore
earrings in his ears and a blue sweater (351, 352).
"D"' s real
name was Darrel and she identified Mr. Hemphill in court (351).
Mr.
(352).
Hemphill stated "Miss,
I
never met you in my life"
The court admonished him and struck the comment (352A).
Gist first spoke to the police at her mother's apartment;
she made a longer statement at the 47 th Precinct
(353).
She
claimed that she told the police that three people were involved
in the altercation, Burgos, Nicholas and Darrel (375).
In fact,
Gist had not mentioned "Darrel" during her 2006 interviews with
the police
(Jimick:
743-744).
To the contrary,
her specific
identification of Morris, a person she claimed to have known for
years,
as Gilliam's partner during the altercation, had been
the reason Morris was arrested (Jimick: 7976-798).
But at Mr. Hemphill's trial, Gist denied telling the police
that only Nick and Burgos were involved (376). She picked out
"Burgos" from a photo array (354).
array of Morris
(354).
after the shooting,
(354).
She was not shown a photo
When she left her mother's apartment
she saw Morris walking down Morton Place
She did not remember what he was wearing
(354).
She
knew Morris had been arrested, but did not tell the police they
34
)
SA048
had arrested the wrong person (385).
Cooperator Ronnell Gilliam's Account
Ronnell
Gilliam,
testified
pursuant
to
a
cooperation
agreement rewarding him with a five-year prison sentence if his
testimony was deemed truthful (969).
25 years in prison (969).
Otherwise he would receive
At the time of his testimony, he was
free, although he had not served the full term, but he believed
he
would
Although
have
to
Gilliam
return
had
to
never
jail
after
intended
to
testifying
murder
(970).
anyone,
he
admitted, under oath, intending to kill David Pacheco, Jr., to
secure his agreement (974, 1055).
After entering the plea, he
then committed another crime, and pleaded guilty to possessing
stolen property relating to a $5,000 check (975).
Gilliam sold
crack
arrests
as
a
teenager
(976).
He
also
had prior
for
possessing marijuana and trespassing (975).
Gilliam's mother died when he was 12 and he had no father.
He had lived with his grandmother, Arnell Gilliam, and brother,
William Gilliam, at 1878 Harrison Avenue for most of his life
( 976) .
Mr. Hemphill was his older cousin,
who owned a music
studio;
they had a
(987,
"typical"
Hemphill had his zipcode
relationship
(10453)
1046).
Mr.
tattooed on his upper right
shoulder (989).
In 2006, Gilliam was 26 years old and Morris had been his
)
best friend since age eight (988).
Gilliam spent a lot of time
with Morris and knew he had guns and ammunition (1046).
35
)
Mr.
SA049
Hemphill
and
Morris
had
"no . relationship"
(988).
The
prosecution introduced pictures of Morris and Mr. Hemphill; the
pictures accurately depicted how both men looked on the date of
the incident (1061; People's 102 [Morris); 103 [Mr. Hemphill)).
On April 16, 2006, Mr. Hemphill rang Gilliam's doorbell and
asked him to come downstairs.
Gilliam saw Mr. Hemphill arguing
with three men and two women (977). Mr. Hemphill swung a fist at
one of the men and Gilliam pushed him into the side of a car
which kept going (977).
himself
(977).
Gilliam was then fighting three men by
A man tried to break up the fight
(977).
The
men pulled Gilliam's shirt over his head and he continued to
fight bare-chested
(978).
After the fight broke up,
Gilliam
went to look for Mr. Hemphill, who had run up University Place
(978, 993).
Gilliam walked up Morton Place, towards University
and Tremont Avenues (978).
While Gilliam stood on University and Tremont, the two men
he had just fought approached him and wanted to continue the
fight
(978).
One of
the men tried to spit on Gilliam and
Gilliam told the man to get his gun because he was going to kill
him;
Gilliam then called Morris for help
(978,
995).
Morris
said he was on his way and asked Gilliam where he was located
(979).
A blue car, belonging to Mr. Hemphill's wife, Aida, drove
past Gilliam and Mr. Hemphill got out (979).
The men involved
.J
in the earlier fight were across the street on Tremont Avenue
36
SA050
(979).
Although Gilliam told Mr. Hemphill they could beat the
men in a fight, Mr. Hemphill took out a gun and started shooting
at the men across Tremont, when a car sped by (979).
Mr. Hemphill and Gilliam started running towards Gilliam's
apartment (980, 998).
In the lobby of his building, Gilliam saw
Mr. Hemphill's wife, Aida, Morris, and William (980).
up to Gilliam's apartment
sirens
( 980) .
Mr.
into his bedroom where they heard
Hemphill
Morris had brought a
told Gilliam to
gun also,
Gilliam took it as well
They went
(980).
a
take
his
gun.
. 357 caliber revolver,
and
The others left the apartment
while Gilliam stayed behind (980).
Before leaving the apartment, both Morris and Mr. Hemphil,
Mr. Hemphill had been wearing a
changed their shirts
(1002).
blue sweater (1002).
But Gilliam did not identify the one in
evidence (1002).
A short while later, Gilliam received a call from a friend
who said people were describing him as being involved in the
shooting, describing the perpetrator as a fat guy, with a lazy
eye
and braids
(981).
(981).
Gilliam denied he had been involved
Gilliam called Mr.
Hemphill who told him to take the
guns and the sweater and get rid of them (981).
According to
Gilliam's trial account, he gave the guns to a crackhead he knew
in the neighborhood (981, 1042).
because he was
He then called Mr. Hemphill
"stuck"
at his apartment and the police were
Mr.
Hemphill promised to call someone to
)
approaching
(981).
37
j
SA051
Someone picked Gilliam up and dropped him at 170 th
help (982).
Street and the Grand Concourse
(982).
Then,
Mr. Hemphill's
friend "Nana" picked Gilliam up and took him to Morris's house
on University Avenue (983).
Morris told Gilliam he should leave
the area ( 984) .
Gilliam went to another friend's house where Mr. Hemphill
called him to tell him to get rid of the sweater (984).
Gilliam
called William to tell him to get rid of "the sweater" and the
police picked up the phone and told Gilliam to surrender (984).
The DD-5 memorializing this conversation reflected that Gilliam
had instructed William to get rid of the shirt, not the sweater
(stipulation:
1494).
Gilliam insisted that he had never told
William to get rid of the "shirt"
(1051).
Mr. Hemphill told Gilliam to go to Brooklyn to "Vernon's"
house (984).
Once Gilliam arrived, Mr. Hemphill announced they
would go to North Carolina (985).
Gilliam had previously lived
in Greensboro with an aunt (1002).
They decided to go to Durham
(1004).
Mr. Hemphill, his wife Aida, and their young son, drove
with Gilliam down
to
North
remained in New York (1003).
a hotel
(1004)
believed
the
prosecution
;
Carolina;
couple's
daughter
Once in Durham, Gilliam stayed at
Gilliam threw out his cell phone because he
police
did
not
were
tracing
introduce
any
it
of
(1005-1006).
Gilliam's
cell
The
phone
records.
The
family moved around hotels and eventually rented a
38
)
the
SA052
house where they stayed for one night (1006).
Mr. Hemphill told
Gilliam that Vernon had told the police what happened and they
needed to move again (1005).
After a "couple of days," Mr. Hemphill told Gilliam he and
Aida were returning to New York to see what was going on (1006).
Their daughter was
in New York
(1064).
For days,
Gilliam
stayed in a hotel without a phone or money, while Mr. Hemphill's
friends brought him food (1007).
At some point, one of these
friends told Gilliam that Mr. Hemphill wanted to speak with him
(1007).
Using
this
friend's
cell phone,
Mr.
Hemphill
told
Gilliam that Morris was informing the police about the incident,
naming Gilliam as the shooter and instructed Gilliam to return
to New York to identify Morris as
the shooter
(1008).
Mr.
Hemphill promised to get Gilliam a lawyer (1008).
The
following
day,
additional
unnamed
Hemphill drove Morris up to New York (1009).
lawyer Mr. Hemphill had arranged (1009).
friends
of
Mr.
Gilliam called the
He met the lawyer at
the courthouse and gave his first statement on April 26,
2006
(1009, 1028).
During this first statement, Gilliam identified Morris as
the shooter (1012).
Gilliam explained that he had gotten into
a fight with a guy in the grocery store and he called Morris,
who came and did the shooting (1039-1040).
)
his own role in disposing of the guns or that Mr. Hemphill was
the shooter
(1012).
He lied about how he had returned from
39
)
He did not mention
SA053
--',
North Carolina,
insisting he had taken the bus
(1049).
After
···1
making this initial statement, Gilliam felt guilty, especially
after he saw an interview with Morris in which he did not name
Gilliam ( 1013) .
On May 9,
with Mr.
2006, Gilliam returned to the police precinct,
Hemphill's
brother,
Stephen Hemphill
(1014,
1034).
While there, Morris coincidentally called Stephen's phone from
Rikers
(1015,
1031).
"make it right"
Gilliam spoke to Morris and promised to
(1015, 1031).
In his second statement, Gilliam named Mr. Hemphill as the
shooter (1015).
did
not
But Gilliam continued to lie about the guns and
mention
that
Morris
had
possessed
a
.357
caliber
revolver because he wanted to prevent any prosecution of Morris
(1016, 1017).
He did not remember telling the police that Mr.
Hemphill had thrown the .9mm gun into the East River; "it might
have been another lie"
(1035-1036, 1041).
The following day, Gilliam made a third statement, with his
lawyer
present,
at
the
courthouse
against
the
advice
of
his
attorney
( 101 7) .
Gilliam
(1018).
In
did
his
so
third
statement, Gilliam again named Mr. Hemphill as the shooter and
insisted that he had described disposing of both guns two doors
down
)
from
his
apartment
(1018).
In
fact,
in
all
three
statements Gilliam only mentioned a single gun (1034).
In the
May 10, 2006 statement, Gilliam had described throwing the gun
away in Robert Clemente Park -- another lie
40
(1037-1038).
He
SA054
only mentioned the existence of Morris's
.357 revolver,
years
later in 2010, pursuant to his cooperation agreement (1034). He
was arrested in 2007 for murder and hindering the prosecution
(1018, 1019).
He pleaded guilty in order to take responsibility
for his actions
(1020).
The Court Allows The Prosecution To Introduce Morris's
Guilty Plea Admitting To Possessing The .357 Weapon,
Over Counsel's Confrontation Clause Objection, Ruling
The Defense Had Opened The Door To The Evidence.
Having
successfully
opposed
any
mention
that
.357
ammunition was recovered from Morris's bedroom, the prosecution
mid-trial sought to introduce Morris's plea statements admitting
that he possessed the
.357 weapon during the incident
(831).
According to the prosecution, the plea qualified as a statement
against penal interest (832)
Counsel opposed, arguing that the
prosecutor wanted to "have it both ways"
case at the moment"
(646).
"whatever suits his
Counsel objected to the court's
allowing a mid-trial change in position (672).
was
not
really
against
Morris's
penal
The statement
interest
because
he
pleaded guilty to obtain immediate release and the statement
bore no indicia of reliability (832-834).
The prosecutor also argued that Morris's plea statements
did not
implicate
Mr.
Hemphill
Confrontation Clause (893).
so
as
to
run afoul
of
the
The court asked if the prosecution
had spoken with Morris; the prosecutor responded that Morris had
j
refused to testify and could not be brought back to the country
41
J
SA055
because he then might seek asylum to bar his return to Barbados
(895-896).
Counsel protested that the prosecution was offering the
plea to incriminate Mr. Hemphill (896). The court ruled that the
recovery
of the .357 caliber ammunition from Morris's bedroom,
and Gilliam's statements about the
reliability of Morris's plea
(910)
Gilliam
the
had
never mentioned
.357 weapon supported the
Counsel responded that
. 357
weapon until
his
own
cooperation agreement years after the incident (914).
The
court initially ruled that because the guilty plea
statements did not directly implicate Mr. Hemphill there was no
Crawford violation (917).
Counsel disagreed, arguing that the
statements were being offered to support Mr. Hemphill's identity
as the shooter,
without giving the defense an opportunity to
cross-examine Morris (916).
According to the
court,
Morris's plea statements were
"central" to the issues being litigated at trial and went "to
the heart of the case"
(676,
918)
issue later and cited People v.
The court returned to the
Hardy,
4 N.Y.3d 192
(2005),
recognizing that where plea statements are used to strengthen
the prosecution's case they are testimonial in nature and cannot
be introduced under Crawford.
Nonetheless, the court admitted Morris's plea statements,
finding the defense had "opened the door" to the evidence by
j
suggesting during opening that Morris was the shooter (1130).
42
)
SA056
While this defense argument was "appropriate and necessary," it
opened the door to Morris's statements pursuant to People v.
Reid, 19 N.Y.3d 382 (2012), the court ruled (1131).
The court
noted the defense's objection (1133, 1134).
The
prosecution then called Shameeka Harris,
the court
reporter who had transcribed Morris's plea statements
(1181).
Harris recounted that Morris pleaded guilty against the advice
of
his
attorney because
the prosecution had no
establish his possession of the
admissions (1183).
. 357 weapon,
evidence
to
apart from his
Morris nonetheless pleaded guilty to an SCI
which assured his immediate release, admitting that "on April
16, 2006 at approximately 2:00 p.m. in the vicinity of Harrison
Avenue and Milton Place within Bronx County" he possessed "a
loaded operable firearm"
( 1184) .
Morris possessed was a ". 357"
The loaded, operable firearm
(1185).
The Court Deems Hearsay Testimony Admissible Through
Gilliam's Attorney.
Prior
to
the
prosecution
calling
counsel asked for an offer of proof
Gilliam's
( 945) .
attorney,
The prosecutor
responded that Mr. Hemphill had hired the attorney for Gilliam
to script his statements to the police (945).
Counsel protested
that the attorney's statements would be hearsay and irrelevant,
because the attorney had never spoken directly with Mr. Hemphill
( 945)
)
The court nonetheless deemed the statements "admissions"
(946)
43
J
SA057
The prosecutor acknowledged that the attorney had never
spoken directly with Mr. Hemphill, but offered the evidence as
The court deemed
relevant to "consciousness of guilt"
(946).
the evidence relevant and admissible,
granting the defense an
exception (948).
George Vomvolakis had been working for Joseph Tacopina in
2006.
Tacopina represented
"A-Rod"
prosecutor elicited (950-951)
over objection,
and
"Bernie Kerik, •
the
The prosecutor also elicited,
that on April 26,
2006, Vomvolakis had spoken
with Adam Mehrfar, who had referred Gilliam's case to him (952).
Vomvolakis had an office on Madison Avenue and 40 th Street but he
met
Gilliam by the
courthouse
( 953) .
Vomvalakis
could not
remember how much he was paid; payment was through Adam Mahrfar
or Mahrfar's clients
Mr.
Hemphill or his wife
(954,962).
Over objection, Vomvolakis was allowed to testify that he had
spoken to Mahrfar, who told him that there was a shooting in the
Bronx where someone was killed and Vomvolakis was to represent
a witness, someone involved in the shooting (954).
Vomvolakis spoke to Gilliam for fifteen minutes and felt
"comfortable
overruled
that
he
counsel's
was
being
objection
honest"
to
this
( 955) .
The
testimony
court
(955).
Vomvolakis sought to represent Gilliam diligently and believed
it was in Gilliam's best interest to cooperate with the police
(955).
On May 9, 2006, Vomvalakis called the precinct because he
44
)
SA058
was upset his client was being questioned by the police outside
his presence (958).
Gilliam had not called to tell him that he
was at the precinct (958).
and
The day after this call, Vomvalakis
Gilliam had another meeting with
Gilliam
gave
another
statement
the
(959).
This
inconsistent with the original April 26,
964).
prosecutors
where
statement
was
2006 statement (959,
Vomvalakis did not tell Gilliam not to cooperate with the
prosecutors because he thought it was in Gilliam's best interest
to cooperate (961). But he doubted Gilliam's honesty after his
initial statement
(965). By the time of trial, Vomvolakis had
lost his file and did not have notes to review (960).
Gilliam's Grandmother, Who Has Trouble Recognizing Mr.
Hemphill In Court, Testifies She Remembers Him Wearing
A Blue Sweater on Easter Morning 2006.
Ardell Gilliam, 76 years old at the time of trial, had been
suffering from cancer in April 2006
saw Mr.
Hemphill
in court,
she
(604).
When asked if she
looked towards
the
before asking "which way am I supposed to look?"
jury box
(601).
She
then identified Mr. Hemphill as her grandson, although she was
not certain he was related to her by blood (601, 602, 605).
Ardell then claimed that she remembered that on Easter 2006
Mr.
Hemphill had been wearing a blue sweater (602,
603).
On
cross-examination she said she could not remember what he was
wearing (611).
a
On re-direct she said Mr. Hemphill was wearing
long-sleeved blue
Gilliam,
sweater,
but
she
could not recall what
the grandson she had helped raise,
45
had been wearing
SA059
(611,
612).
In any event, Ardell was never asked to identify
the sweater in evidence as the one Mr. Hemphill had been wearing
(612).
She claimed that she spoke to the police on the day of the
shooting when
they
came
to
her
apartment
(608).
She
also
claimed that she had gone to the 46 th Precinct to speak with the
police again in May 2006 (602).
According to Ardell those two
dates were the only time she spoke to police about the incident
(607).
But
according
to
Detective
conversation occurred on April 6,
Jimick,
2007,
the
precinct
approximately a year
after the incident (Jimick: 727).
Arnell knew Morris, who was Ronnell Gilliam's best friend
(609).
She did not see Morris that day in her apartment (610).
The Court Allows The Prosecution To Impeach Its Own
Witnesses Elisa Hemphill and Vernon Mathews.
Elisa Hemphill',
David (416).
was married to Mr.
Hemphill' s
brother,
She had known Mr. Hemphill since childhood (417).
When she testified that she "did not recall" if he had a tattoo
on his forearm on Easter Sunday 2006, the prosecution responded:
"Don't
recall?
What did you tell me
this morning?"
(417).
Counsel's objection to this questioning was overruled (417).
Elisa
responded that
the prosecutor had asked if Mr.
Hemphill had a tattoo on his forearm that said 10458 and she
4
Elisa's name is spelled "Alisa" at times throughout the
record.
Her name will be spelled the way it was during her
testimony for purposes of consistency.
46
;
SA060
answered the question
The prosecution then asked "So
(418).
what happened between this morning when I dropped you off in the
witness
Again,
waiting
room and
now,
half
an
hour
the court overruled counsel's objection
later?"
(418).
(418).
Elisa
responded a long time had passed and the prosecutor had shown
her certain evidence (418).
The prosecutor continued by observing "we actually met up
in the 5 th floor lunchroom this morning" (418).
Counsel objected
to the prosecutor cross-examining his own witness
(418).
The
court announced it would allow the questioning based on the
"change in testimony"
The prosecutor advised the court
(419).
that he had spoken with the witness two months. earlier about the
tattoos and days earlier and each time she had said Mr. Hemphill
had tattoos
on his
"arm"
(420).
The court then agreed the
prosecutor could further question Elisa.
The prosecutor asked: "the first time you told me about the
tattoo was not this morning?"
overruled (421).
(421).
The defense objection was
Elisa responded she had said she "might" have
seen a
tattoo on Mr.
Hemphill' s
arm which contained numbers
( 421)
The prosecutor then continued: "this morning I met you
coming out of a cab in front of the criminal courthouse, took
you to a side entrance to the lunch room with no one else there.
We discussed tattoos again"
(422).
was a tattoo" which had been there before 2006 (424).
She could
not remember the exact location of the tattoo (426).
It could
47
)
Elisa then testified "there
SA061
·,
have been on Mr. Hemphill's shoulder (426).
Mr. Hemphill displayed his arms to the jury, requiring that
he remove his entire shirt (431).
forearm
(435).
There was no tattoo on either
"DA 10453" was tattooed on his right shoulder
(436).
Before calling Vernon Matthews, the prosecutor advised the
court that Matthews had been avoiding detectives for years and
would be testifying pursuant to a material witness order (1244).
He had been arrested and asked for a lawyer (1245).
had said he would not testify (1245).
Matthews
After an off-the-record
discussion with Matthews assigned counsel,
Paul Horowitz,
the
court explained that Matthews still did not want to testify and
had been abusive (1246).
Counsel
protested
that
he
anticipated
the
prosecution
calling Matthews to declare him a hostile witness to try to
introduce Matthews' prior statement
(1248).
The court stated
that Mathews had no Fifth Amendment right not to testify (1250).
Vernon Matthews,
35
years
old,
was
a
janitor with no
criminal record (1251-1252,
1280).
He knew Mr. Hemphill, his
friend and mentor,
( 1252) .
Mr.
guy"
who
as "DA"
took Matthews
in
for
Hemphill was a "good
no reason and helped him by
allowing Matthews to work at his music studio (1311).
16,
2006,
Matthews lived in Brooklyn (1253).
On April
His mother had
recently committed suicide and a lot of people were dropping by
)
to pay their respects
(1260,
1312). His fiancee was home the
48
)
SA062
whole evening
"DA"
He did not recall getting a call from
(1260)
or the details of what had transpired
(1253).
At some
point Mr. Hemphill and Ronnell Gilliam came to his house that
evening (1256).
He did not remember speaking to the police on April 20,
2006 at the 46 th Precinct (1254).
precinct was located
(1254).
He did not even know where the
He remembered writing something
for the police at some point so they would let him go home
(1254).
He identified People's Exhibit 120 for Identification
as his statement (1254).
He made "stuff up" so the police would
let him go (1256, 1257).
Nine years later, he could no longer
remember what he had overheard that evening (1257, 1259).
The prosecutor proceeded to ask, "You never wrote down that
they started talking about how it was -how it went down in the
Bronx?"
the
( 12 64) .
The court sustained counsel's objection that
prosecutor was
reading
from a
document
not
in evidence
(1264).
Matthews admitted that he had made a written statement
(1264).
The prosecutor then asked if Matthews "told police [DA]
did something criminal?" (1265).
struck the question
(1265).
Counsel objected and the court
The court then removed the jury
(1266).
Counsel objected that the prosecutor was seeking to impeach
Matthews with his prior statement and Matthews had merely stated
he did not remember what he had heard (1266).
The prosecutor
)
asked to impeach Matthews pursuant to C.P.L. §60.35 (1266).
49
)
The
SA063
court responded that the
law would not be
"held hostage to
perjury" (1267) and announced its intention to admonish Matthews
(1268).
Counsel protested that Matthews could not recall what had
happened nine years
earlier and was
represented by counsel
(1268).
It would be inappropriate for the court to directly
address
Matthews,
counsel
argued
(1268).
The
court
then
threatened Matthews with a
perjury prosecution and contempt
proceedings
testify
if
he
did
not
truthfully
(1270-1271).
According to the court, Matthews claimed lack of memory about
the contents of his
Matthews
told
the
did not
statement
court
that
his
destroyed by the police (1273).
first
"ring true"
(1272).
statement
had been
The court warned Matthews that
it was hard to "maintain a lie" and he would remember if his
mentor had said he shot at people (1274).
Horowitz told the court he had advised Matthews to assert
his 5 th Amendment rights based on the court's warnings (1277).
The court refused to allow Matthews to invoke his right to
remain silent because the Fifth Amendment could not be used to
avoid perjury charges and the court assumed the prosecution
would agree not to prosecute Matthews (1278-1279).
Following
the
court's
warnings,
Matthews
continued
to
insist that he did not recall what he had overheard inside his
home on Easter Sunday 2006 (1281).
His statement to the police
)
was
false
(1281).
The police had thrown away his initial
50
)
SA064
statement (1313).
At
sidebar,
Matthews (1282).
the
prosecutor
again
sought
to
impeach
Counsel objected that impeachment was improper
because Matthews had merely professed an inability to remember
The court ruled that the prosecution could impeach
(1283).
Matthews pursuant to C.P.L. §60.35; counsel asked to research
the issue (1284).
The court announced it would once again warn Matthews about
the
consequences
of
committing
perjury
(1285).
Counsel
protested that the court had already warned Matthews and was now
improperly
pressuring
him
(1285).
The
court
thought
appropriate to "take action" to avoid perjury (1285-1286).
court
cautioned
Matthews
in
the
"strongest
then moved
to
preclude
possible
it
The
terms"
(1288)
Counsel
further
examination of
Matthews, arguing the prosecution had called him in bad faith,
knowing
he
would not
remember what
disavow his statement (1289).
Matthews
in order
statement,
counsel
to
overheard and would
The prosecution had only called
impeach his
protested
he
testimony with his
(1290).
Impeachment
prior
would be
improper because Matthews' failure to remember did not disprove
any aspect of the prosecution's case (1290-1291).
According
)
to
the
prosecutor,
years
earlier,
in
Matthews told an investigator his statement was true
2012,
(1292).
Counsel responded that Matthews had told a defense investigator
51
)
SA065
his statement was not true a month before testifying and in June
2014
The
(1299).
court was not
"impressed"
with Matthews'
disavowal of the statement because he had not filed a complaint
against the police (1300).
The
prosecutor
insisted
that
witness
because
he
had
said
he
shooting
a
on
April
16,
2006
change
his
gun
believed Matthews
statement was true
might
(1295).
Matthews
heard
Mr.
(1293).
was
a
critical
Hemphiill
The
admit
prosecutor
testimony and admit
his
The court responded that because
Matthews had merely stated he could not remember what he had
heard, the prosecution would not be allowed to impeach him with
But the court agreed to restore
his prior statement (1296).
Matthews to the stand (1297).
The prosecutor resumed his questioning by asking Matthews
to separate what he currently remembered from what he said in
his statement (1303).
Counsel objected to any questioning about
the statement
but the court ruled it would allow it
(1303).
(1303),
The prosecutor then advised Matthews that if he needed
to refresh his recollection about his statement it was "right in
front of" him (1303).
The court overruled counsel's objection
(1303).
The prosecutor then asked:
)
On April 16, 2006, in your home in Brooklyn did you
hear the defendant, DA, say that some guys tried to
rob him and he fought them, and then he went and got
a gun, and he shot at them, that he was aiming his gun
at them?
52
)
SA066
The court overruled counsel's objection to this question
(1303-1304).
Matthews asked if the prosecutor was reading from
his statement and said he did not recall hearing "that" (1305).
The
prosecutor
statement
he
had
continued
written
to
"things"
clearly on April 20, 2006 (1307).
objection (1307).
ask
Matthews
that
he
if
in
remembered more
The court overruled counsel's
Matthews explained that the police had told
him certain things that he put into his statement (1309).
prosecutor then asked:
against
your
mentor
objected
to
the
on April
"content"
The prosecutor proceeded:
of
you?"
and
The
"So the police made you say something
of
20,
2006?"
(1309).
the
statement,
but
Counsel
the
allowed the questioning and Matthews responded "Yes"
front
his
court
(1309) .
"You have the written statement in
Matthews
responded
"yes"
(1310).
The
prosecutor also asked if Matthews was as sure that the police
"crumbled up your first statement as you are that you never told
the police that DA was airing the gun?"
(1314).
The court
overruled counsel's objection (1314).
Matthews again insisted that the police had crumpled up his
first statement
(1317).
Matthews did not recall what he had
said in his first statement (1317).
The court then allowed the prosecution to recall Detective
Jimick to testify that he had taken an oral statement from
Matthews
which Jimick asked him
reluctantly agreed to do so (1321).
53
to
transcribe and Matthews
Jimick did not crumple up
SA067
this statement
(1321).
Nor did Jimick tell Matthews he could
not leave the precinct (1321).
The Forensic Evidence
Detective Michael Cunningham responded to Bronx Lebanon
Hospital on April 16, 2006, to document the deceased's injuries
(89).
The prosecution introduced nine pictures of the deceased
depicting
his
body
from
interventions he underwent
The pictures
various
angles
and
(90-100;
People's
the
surgical
Exhibits 2-11).
were admitted over counsel's previously stated
objections (95,99). Cunningham also recovered and photographed
a . 9mm bullet (101; People's Exhibit 11.-16 [pictures]; People's
94B [bullet] ) .
He then went to the crime scene where he photographed the
area
of Tremont and Harrison Avenues
Cunningham
(116-117).
also took pictures of the minivan which was parked a block away
and had a bullet hole in its side door (126-128; People's 41).
The bullet's trajectory went through a child's car seat (133,
136; People's 46-48, 52).
The prosecution also introduced five discharged .9 mm shell
casings and pictures depicting from where they were recovered on
the Harrison Avenue sidewalk
[shells];
People's
63-68).
(156-156,
182,
220;
People's 54
Cunningham acknowledged
that
the
position of the casings could have changed due to pedestrian
traffic in the area (249).
The shells were recovered and tested
j
for fingerprints, but none were found (206-207). No additional
54
SA068
evidence recovered from the crime scene was sent for fingerprint
testing (248).
Cunningham took several pictures of a utility box located
on the northwest corner of Harrison and Tremont Avenues which
evidenced bullet impact marks (158; People's 69-74).
A deformed
bullet was recovered beneath the utility box (158).
There was
also a bullet hole towards the base of a building located on the
southwest corner of Harrison and Tremont and in a window at 1730
Harrison Avenue (159, 160; People's 75, 77).
Bullet fragments
were recovered from a bed beneath the window and within the wall
of the building
Cunningham returned to the scene
(218,226)
later to take additional pictures to create the crime scene
diagram (166; People's 93)
5
After leaving the crime scene, Cunningham took a picture of
a blue sweater he had received from Detective Jimick contained
in a black plastic bag (163; People's 84).
The sweater itself
was introduced into evidence as Exhibit 98C (237).
to being covered with metal shavings,
right arm.
In addition
it had a hole under its
See People's 84. Cunningham did not know how Jimick
obtained the sweater (238-239).
Detective James Valenti, concluded that the shell casings
all came from a single gun, a
1205).
.9mm Luger semi-automatic (1204-
Valenti was not made aware that a
.9mm live cartridge
/
5The
court granted the prosecution's request for the jury to
independently view the crime scene (1240-1242).
55
J
SA069
had been discovered in Morris's bedroom
asked to compare this
evidence (1216).
( 1216) .
He was not
live round with the other ballistics
A live round could be examined to see if it
had any kind of extractor or chambering marks to trace it to a
particular weapon
(1216-1217).
Ammunition for a
.357 weapon
could not be fired from a .9mm gun (1216).
Dr.
James Gill,
conducted the deceased's autopsy
(921).
The cause of death was a single gunshot wound which perforated
the lung,
spinal columns and spleen (929).
Not only did the
prosecution introduce an additional three pictures of the body,
over
counsel's
previously
stated objections,
allowed the prosecutor to elicit,
but
the
court
over relevance objections,
that the child would have suffered pain as a result of each
injury
bleeding
(932).
Injury
to
the
spleen would
cause
pain
and
(933). The severing of the spinal chord would cause,
pain, bleeding and paralysis
(933).
cause "problems moving air"
and there was
associated with that"
The collapsed lung would
"going to be pain
(933). The perforation of the diaphragm
would cause difficulty breathing (933).
Death would not occur
instantaneously, Gill explained (934).
Jason Berger,
a criminalist with the police laboratory,
reviewed the results of gunshot residue testing performed on the
blue sweater in 2006
(1110).
There was no gunshot residue on
the sweater (1120).
Aluminum
metal
fragments
56
were
detected
on
both
the
SA070
These metal fragments were not
sweater's sleeves (1111, 1112)
consistent with any ballistics evidence;
and
copper
shavings
which
( 112) .
were
not
found
in
bullets contained lead
the
sweater's
aluminum
There was no test in forensic science which
could prove whether someone had fired a gun (1113).
The police
laboratory did not conduct "primer residue analysis" to detect
gunshot
residue,
even
though
the
department
possessed
the
machinery to perform such testing because the laboratory had not
been validated to do so (1115-1116).
On July 27, 2006, Natalya Yanoff, a criminalist with OCME,
examined
the
blue
sweater
People's Exhibit 98C).
introduced
into
evidence
(555,
She scraped a single area on the collar
and submitted the sample for DNA testing (556, 580).
While DNA
was found on the scrapings, Yanoff could not determine when it
was deposited
(575).
(555) . The DNA could have been many years old
DNA could be deposited if a person directly touched an
object or if someone transferred the DNA by touching the person
and then the object (574)
Yanoff compared the DNA to a sample received from Morris
but
it
did
exemplars"
not
match
from a
(559)
Later,
she
Pepsi and water bottles
received
(560).
"pseudo
A pseudo
sample is not taken directly from an individual and is not the
scientifically
)
preferred
way
for
obtaining
DNA.
obtained did not match the DNA on the sweater (565)
The
DNA
Yanoff
then received a sample of Mr. Hemphill's DNA which matched that
57
)
SA071
on the sweater (567, 572, 573).
The
prosecution was
allowed to
elicit,
over a
defense
hearsay objection, that Morris had consented to DNA swabbing on
March 3,
2008
(Detective Joseph Russell:
535)
On June 16,
2008, Modesto Acevedo traveled to North Carolina to observe Mr.
Hemphill
(937).
Carolina
and
Acevedo
sorted
went
garbage
to
from
separate
an
towns
address
in
where
North
police
believed Mr. Hemphill was living; the water and Pepsi bottles
were seized in the hope of extracting his DNA (938).
Nobody
observed Mr. Hemphill drinking from the bottles (939).
This process of obtaining pseudo samples was undertaken
because the prosecution had not yet sought a search warrant for
Mr. Hemphill's DNA.
See Court File: search warrant dated April
26, 2011.
On April 26, 2011, Detective James McSloy pulled Mr.
Hemphill' s
car over in North Carolina pursuant
to a
search
warrant and obtained two DNA swabs from him (524-527).
The Court
Permits The Introduction Of Hearsay
Concerning The Recovery Of The Blue Sweater But Bars
The Defense
On Hearsay Grounds From Rebutting The
Evidence Of Flight.
Detective Ronald Jimick recounted his
role as
detective throughout the investigation (651-798).
the case
He described
going to Gilliam's apartment shortly after the shooting where he
saw
William
Gilliam,
testified that
Ronell's
brother
(663)
When
Jimick
"based on conversation we had with William we
were directed to," counsel objected, but the court overruled the
58
)
SA072
objection
(664).
Jimick then testified "I was directed to a
back bedroom closet by William.
Inside the closet he directed
me to a black plastic bag that was on a shelf inside the closet"
(664).
Inside the plastic bag was the sky blue Izod sweater
introduced into evidence
(664-665).
Although William Gilliam
lived minutes from the courthouse, he was never called by the
prosecution to testify (1371-1372).
Jimick claimed there was an
overwhelming
from
bag,
a
significant fact he failed to note in any report (667, 742).
He
also
for
did
smell
not
fingerprints
ask
of
for
gunpowder
the
bag
inside
itself
to
be
the
tested
(740).
Jimick also testified that he knew where Mr. Hemphill and
his wife Aida were located in North Carolina based on a "trap
and trace"
device placed on Aida's cell phone pursuant to a
warrant (774, 784).
Counsel was precluded from eliciting that
Mr. Hemphill's attorney had contacted Jimick within days of the
incident offering to make him available to the police; at that
time Jimick had responded he did not wish to speak with Mr.
Hemphill (635-636).
The court deemed this evidence inadmissible
hearsay and rejected counsel's argument that it was a statement
of future intent by the attorney and "important for the jury to
understand the nature of the investigation"
(636, 638).
The Defense Motion To Dismiss
)
At the close of the prosecution's case,
counsel moved to
dismiss based on the prosecution's failure to prove beyond a
59
)
SA073
reasonable doubt Mr. Hemphill's identification as the shooter
(1326).
Counsel recounted the prior identifications of Morris
and Gilliam's unreliability (1326)
The prosecution opposed,
arguing its case raised questions for the jury and the court
denied the motion
(1326).
Counsel later renewed the motion
arguing that the evidence of Mr.
shooter
was
legally
Hemphill' s
insufficient
(1723).
identity as the
The
prosecutor
responded that the evidence created a question of fact and the
court again denied the motion (1723).
The
Court
Precludes
Significant Aspects Of The Defense
Case.
Counsel announced that he would be calling a witness to
testify that,
shortly after the incident, Morris had admitted
being involved in the altercation with Gilliam, retrieving his
. 9mm gun and firing it
(1430).
The prosecution opposed the
statement's introduction on hearsay grounds
(1429).
Counsel
argued the statement was against Morris's penal interest, but
the court ruled that Morris was not aware the statement was
against his interest when it was made (1430-1431).
the
court,
investigators,
Morris
had
been
exculpated
According to
by
competent
had asserted his innocence during the News 12
interview, and then pleaded guilty to only possessing the .357
weapon.
As
such,
his
acknowledgment
60
)
of
guilt
was
highly
SA074
unlikely (1434-1435) . 6
Counsel excepted to the court's ruling,
arguing that in light of the strong evidence suggesting Morris
was the shooter,
the statement bore the necessary indicia of
reliability to be admissible (1435).
The court also precluded the defense from eliciting through
Detective Jimick that contraband had been seized from Morris's
apartment and his family members taken into custody as a result
(1378).
Counsel sought to demonstrate that Morris had turned
himself in because he was concerned for the well-being of his
family
(1380).
statements
during
This
the
argument
News
12
was
tape,
supported
counsel
by
Morris's
argued
(1381).
Counsel also renewed his objection to the court's precluding the
defense from introducing evidence of the contraband recovered
The evidence was necessary to
from Morris's apartment (1384).
counter the prosecutor's opening remarks that "innocent Morris"
turned himself into the authorities while Mr.
Hemphill fled,
counsel argued (1385).
The court dismissed the proffer as "too speculative" and
"misleading"
were
(1386).
"not the point"
court's ruling (1387)
According to the court, Morris's actions
(1387).
Counsel took exception to the
The court cautioned the prosecutor not
to argue on summation that Morris was innocent merely because he
did not flee and not to contrast his actions with those of Mr.
)
At Morris's trial, the prosecution intended to introduce a
statement against penal interest by Morris admitting he was the
shooter.
(JS. 13-14).
6
61
SA075
Hemphill (1388-1389).
The Court Allows Extensive Cross Examination Of A
Critical Defense Witness Based On A Remote Prior Bad
Act.
Nana
Owusuafriyie
("Nana")
had
been
friends
with
Mr.
Hemphill for twenty years and had never been convicted of a
crime (1444).
He testified in uniform because he was on active
duty with the United States Navy, where he had risen to Chief
during his 19 years of service (1445).
He had earned multiple
medals for his campaigns in Iraq and Kosovo (1445).
He served
the medical needs of 300 soldiers when out at sea (1446).
On April
16,
2006,
studio at about 1:00 p.m.
Nana met Mr.
(1447).
Hemphill at his music
Mr. Hemphill was wearing a
white t-shirt, blue jeans and white sneakers (1448).
Nana lent
him $300 because Mr. Hemphill wanted to take his family out to
dinner for Easter (1448).
Nana, who was on leave, returned home to watch a baseball
game on television and saw a news report about an incident on
Harrison Avenue
(1449).
His phone began to ring constantly.
Ronnell Gilliam, who he knew from the neighborhood, was calling
and asked him to go to Nick Morris's house to meet (1450).
also knew Morris from the neighborhood (1450).
p. m. , Nana went to Morris' s house,
Nana
At around 6:00
spoke to the two men and
drove Gilliam to 170 th Street and Grand Concourse (1451).
When
speaking to Morris, Nana noticed that his knuckles were bruised
(1451).
62
j
SA076
·,
On
cross-examination
the
prosecution
asked
extensively
about a court martial proceeding which Nana had been subjected
to over
fifteen years earlier (1452, 1455, 1456).
Specifically
the prosecutor asked if on March 31, 2000, and April 25, 2000,
Nana had knowingly made false statements, and remarked that if
Nana did not remember,
documents here"
court
martial
the prosecutor had the "court martial
(1456)
and
Nana remembered participating in a
receiving
a
week
in
the
proceedings occurred "a very long time ago"
brig,
but
the
(1457, 1458)
The
charges arose from Nana's participation in a scheme to get a
computer,
along with two other men
prosecutor asked Nana to recollect
(1458).
the
nature of
statements, but Nana could not recall them
1466).
Repeatedly,
his
false
(1461, 1462, 1463,
Nana acknowledged that he had ordered a computer online
and had it shipped to another person's home (1464).
years
the
old at
the
time and "bounced back"
from the
He was 22
incident
(1465-1466).
Nana explained that he did not believe he had ever been
convicted of a crime because the military and civilian justice
systems were different, resulting in the following exchange:
[Prosecutor]: They are not as a matter of law.
[Counsel]: Objection.
The Court: Overruled.
[Counsel]: He's [the prosecutor] is testifying.
The Court: He's stating a fact.
63
SA077
[Counsel]: Objection.
The Court: Overruled again.
The prosecutor then continued to ask why Nana had told the
jury under oath that he had never been convicted of a crime
(1468).
Again, Nana explained that he had been convicted at a
special court martial.
The prosecutor continued with this line of questioning:
[Prosecutor] : Why didn't you tell the jury this
morning that you were convicted of four crimes when
[counsel] asked you were you convicted of four crimes?
[Counsel]: I'm going to object.
It's been asked and
answered four times.
He' s given the answer four
times.
The Court:
I'm not sure,
and I overrule
objection. Answer the question (1469)
your
The prosecutor then continued to ask precisely the nature of
Nana's
false
statements from fifteen years earlier
(1469).
Again Nana admitted that he had been found guilty of making a
false statement, but he could not remember from 15 years earlier
exactly what happened (1470).
On re-direct, Nana admitted he had done something wrong 15
years earlier which he regretted,
after that incident
(1474).
but he sought to be better
The prosecutor then returned to
questioning about the 15-year-old offense on re-cross:
[Prosecutor]: But the reality is
convicted of four crimes, correct?
you
[Counsel]: Objection. This is improper.
over this a dozen times.
64
)
have
been
We have been
SA078
The Court: Notwithstanding, overruled.
Again, the prosecutor was allowed to elicit that Nana had been
convicted of four separate crimes in military court (1478).
prosecutor also elicited again,
over objection,
"lied in an official statement"
(1478-1479).
separate lies?," the prosecutor continued (1479)
the two separate misstatements (1479).
The
that Nana had
\'So,
it 1 s
two
Nana admitted
The prosecutor continued
to ask about the nature of the statements (1480-1481).
He then
cited the portions of the Uniform Code of Military Justice which
had been violated (1481).
The court permitted the questioning
to continue over the defense objection of "improper re-cross"
(1481).
The prosecutor then offered "an official record certified
of
the
convictions
11
Counsel
( 14 81)
objected
to
the
prosecutor's testifying as to the content of a document being
offered (1481).
After dismissing the
jury,
the court remarked that its
precluding Morris's statement admitting the shooting to Nana
could have been based on the witness's inability to tell the
truth (1484).
The court announced it intended to write a letter
to Nana's commanding officer concerning his "disgusting display"
(1484).
The court then let the prosecution introduce the official
record of the court martial showing Nana had been found guilty
_)
on four
charges,
over counsel's objection that
65
)
"the witness
SA079
admitted it" (1487).
The court ruled that the witness had been
"evasive"
of
and
"those
us
recognize those are crimes"
familiar
with
the
Uniform
Code
(1487).
Summations
Counsel
reject Nana's
began his
summation by asking the
jury not
to
testimony over something he had done 15 years
earlier (1500-1501).
Particularly because Nana's account about
seeing bruises on Morris's knuckles was confirmed by Jimick,
Nana's account deserved to be credited (1502).
Counsel characterized the prosecution's case as "a mess"
based on evidence that had changed and been manipulated over
time (1503).
Gist's account had changed over time so that she
now claimed it was not Morris and Gilliam involved but Mr.
Hemphill (1506).
But Gist said Mr. Hemphill had long hair and
braids at the time of the incident, a description of the shooter
not given by a single other witness
(1502).
Jimick testified
that Gist had originally stated it was Morris who was involved
in the fight, counsel recalled (1509-1510).
She had not named
Mr. Hemphill (1510-1511).
Concerning the sweater introduced into evidence,
counsel
argued it was unlikely to be the one worn by the shooter on
Easter (1566).
It was an old, dirty sweater, covered in metal
shavings which had probably been lying around for years (1555)
1556).
smell
While Jimick claimed at trial there was an overwhelming
of
gunpowder
on
the
sweater,
66
J
he
failed
to note
that
SA080
significant
fact
in his
reports
and
there was
no
trace
of
gunpowder on the sweater (1512, 1515).
Gilliam had told his brother to get rid of the shirt, not
a
sweater and admitted Morris had changed his
apartment,
counsel
recalled
(1520).
Castro
shooter's top as being short-sleeved (1546).
shirt at the
described
the
Garcia described
it as a blue golf shirt with three buttons, counsel recounted
(1548).
Santiago also originally described the blue top as a
"shirt" to the police (1552).
Counsel urged the jury to resist appeals to their emotions,
where
the
prosecution
child's body.
introduced
multiple
pictures
of
the
There was no dispute that he had been shot (1516-
151 7) .
The prosecution's case relied heavily on Gilliam, who had
lied about every aspect of his account and faced 25 years in
prison if he did not
cooperate,
counsel argued
(1517-1518).
Gilliam's grandmother had merely testified to help him secure
the benefit of his bargain (1591).
Counsel reminded the jury
that Gilliam first mentioned the existence of the .357 weapon
when he entered his cooperation agreement in 2010, after Morris
had pleaded guilty
to possessing
that
prosecution had no evidence to prove
weapon,
(1581,
a
charge
1583).
the
Morris's
purported possession of the .357 gun used to suggest he did not
fire the .9mm, •smells bad," counsel suggested, explaining •this
)
type of evidence should bother you." ( 1581, 1584) .
67
)
When counsel
SA081
asked why the prosecution had failed to call Morris and William
Gilliam, the court sustained a prosecutorial objection and told
the jury to disregard the argument (1585).
The defense did not have to prove that Morris was
the
shooter, although there was plenty of evidence he was, counsel
The
(1519).
urged
eyewitness
lineups,
testimony,
. 9mm
ammunition recovered from Morris's bedroom and Morris's bruised
knuckles all supported his
identity as
the shooter,
counsel
recounted (1521).
Three people had independently identified Morris from a
fair,
carefully constructed line-up (1523-1525).
Particularly
where the identification witnesses interacted with the shooter
for
ten
minutes
independent
(1527).
during
identifications
the
original
were
those
counsel
argued
reliable,
Brenda Gonzalez put herself between the shooter and
Vargas during the altercation (1530).
eyewitnesses were good people,
view the shooter,
(1534).
altercation,
Counsel urged that the
with plenty of opportunity to
who were not all making the same mistake
Baez also looked at an array and said Morris looked
like the shooter, counsel reminded the jury (1536).
The police
then recovered the .9mm ammunition next to Morris's bed, counsel
recalled (1537)
That
the
shooter
had
tattoos
on
his
forearm
further
undermined any identification of Mr. Hemphill, counsel argued
)
(1559).
Three witnesses had described seeing a lettered tattoo
68
)
SA082
on the shooter's forearm,
have (1563-1564).
a tattoo which Mr. Hemphill did not
Counsel concluded by again characterizing the
prosecution's case as a "mess" and warning it was not the jury's
job "to clean it up"
The
prosecutor
execution,
cold
(1598).
argued
blooded,
that
this
case
involved
"an
premeditated
well
thought
out
execution, nothing less" (1606).
Mr. Hemphill did not care that
there were "innocents all over the block" when he caused "an
excruciating
(1607).
death"
to
the
child,
the
prosecutor
observed
The prosecutor claimed to be "stunned" when defense
counsel suggested he was playing to the jury's sympathy, stating
"I don't need your sympathy.
Mind you,
I'm not too proud to
take your sympathy if it would bring back that little boy form
the cemetery and into his parents' arms"
(1607)
The prosecutor also accused defense counsel of using
sympathy
to get you to ignore the evidence . . . as if the child
is being used, the murder of this child, as if the
defendant is hiding behind that baby, as if calling
this a tragedy makes everything okay so we can all go
home, except it doesn' t make it okay, not by any
stretch of the imagination.
This murder,
this
execution, this intentional murder of an innocent,
it's not just a single act that can be excused. This
murder tore the fabric of this community. (1608-1609).
The prosecutor acknowledged that its case was not "pretty"
or "tied up in a bow,"
but the
"only"
Morris
was
shooter
or
prosecutor
Mr.
Hemphill
then,
despite
the
the
insisted that Morris's lack of
69
j
court's
question was whether
(1610-1611)
earlier
flight proved his
The
admonition,
innocence,
SA083
comparing "Nick Morris,
the man who didn't flee,
the man who
didn't run down to North Carolina like the guilty people do"
(1611).
According to the prosecution,
the three eyewitnesses
who viewed the lineup merely picked out the person they had seen
on television (1612).
The prosecutor characterized the case as both the trial of
Nick Morris and Mr.
Hemphill,
insisting he did not "have to"
bring in the witnesses who had identified Morris but "I did that
because it was important for you to see those witnesses" (1618).
The court overruled counsel's objection (1618).
The prosecutor
then argued that "because this was two trials in one," the jury
needed to take a broad view of the evidence (1621).
According to the prosecutor, certain witnesses "got a quick
case of amnesia" like Elisa Hemphill
(1622);
"Vernon Matthews
caught the same amnesia when he couldn't remember hearing the
defendant say on April 16, 2006, in the Bronx some guys tried to
rob the defendant and defendant fought them off, got his gun and
was airing it out"
(1623).
Counsel's objection to this comment
was again overruled (1623)
According
to
the
prosecutor,
in
earlier
decades
the
eyewitness identifications "would have been enough. No DNA, no
But
we' re
smarter
now.
We' re
better now"
second
thought.
(1628).
Counsel's objection to this comment was again overruled
(1628).
The prosecutor insisted that defense counsel had accused
70
)
SA084
him of manipulating the evidence and not trusting the evidence
credited back in 2006, and suggested:
This is how I propose you address the allegations the
defense made against me, because they are serious and
they go to the essential fairness of this trial.
I
ask that you, the jury, judge me. You decide . . if I
manipulated the evidence like defense counsel said I
did.
.If you have seen me do something, do anything
by way of comment, how I treated anyone in this
courtroom, how I acted at any single moment in this
trial, forget unfair, forget manipulative, but even
disrespectful or rude, I ask you to hold it against me
and my case.
I want you to hold me to a higher
standard than the law because that's only fair and
that's only just (1637-1638).
Counsel's consistent objections to these comments were overruled
(1637, 1638).
The prosecutor continued:
some people might call the act of questioning evidence
against Nick Morris an act of integrity, some people
might call it doing what's right, not doing what's
easy.
That's not for me to do, to give this a name.
It's just another day at the office. So I submit
myself to you.
If you think I fixed the evidence .
. (1639)
In response to counsel's objection,
the court remarked that
counsel had not argued the prosecution fixed the evidence, but
the court allowed the argument to stand (1639).
The prosecutor continued:
If you think I fixed the evidence, manipulated it. If
I convinced the grandmother to walk in in May 2006 and
say he was the man in the blue sweater, if I framed
him, if I'm that person then walk the defendant, find
him not guilty (1640)
The
prosecutor
then went
on
to
accuse
the
defense
of
)
manipulating
the
evidence
(1640).
71
)
Counsel's
objection was
SA085
overruled (1641).
According to the prosecutor, Gist never said that she had
seen Morris in the fight (1643). Gist, "knew the guns would come
out" after she saw the fight,
argued.
"and they did," the prosecutor
"Looks like she knew the defendant better than he
thought," the prosecutor urged (1649).
Similarly "when
[defense counsel]
tried to get Brenda
Gonzalez to admit she said things before the grand jury in 2006
that she never said.
reporter
to
prevent
That's why I had to call the grand jury
facts
from
prosecutor claimed (1644-1645)
being
manipulated,"
the
"I am not the lawyer in this
courtroom trying to manipulate the evidence,"
the prosecutor
insisted (1645).
The prosecutor also argued that Ardell Gilliam's confusion
over whether Mr. Hemphill was wearing a blue sweater resulted
from
defense
questioning.
counsel's
"lowering
his
voice"
during
his
The court overruled counsel's objection (1646).
Concerning Nana's testimony, the prosecutor argued that he
lied about his past to help out Mr. Hemphill.
"If I didn't find
out about his criminal record, he would have gotten away with
it," the prosecutor insisted (1652).
The prosecutor advised the jury that he did not "like"
Ronnell Gilliam,
sustained
"never have,
counsel's
never will"
objection
(1654).
demanding Gilliam go back to
jail if
72
)
(1654)
"I
for
am
five
The court
going
to
be
years or 25
SA086
years," the prosecutor insisted (1655).
who
told you Gilliam was
(1655).
a
liar,•
"I'm also the person
the prosecutor recounted
But Gilliam did not deny making prior statements "even
though they were right in front of him in his own handwriting,
like
Vernon
Matthews,•
the
prosecutor
objection was overruled (1656).
claimed.
Counsel's
According to the prosecutor,
Gilliam "gained nothing by telling the truth"
(1658).
The prosecutor also argued that Vomvolokis met with Gilliam
near the courthouse to prevent "watching eyes so no one [could]
see
what
Vomvolakis
was
going
to
do
with Gilliam"
( 1661) .
Instead of being concerned for Gilliam upon finding out he was
in the precinct on May 9,
2006, Vomvolokis merely "called the
precinct" and "found out what was up on behalf of defendant,•
the
prosecutor
claimed
(1661).
Counsel's
objection
was
overruled, and the court remarked that the jury would determine
whether the argument was based on the evidence (1662).
The prosecutor continued:
Once Vomvolakis found the jig was up, he covered up
the cover up.
That's why Vomvolakis was having such
trouble remembering, no notes, no papers on a murder
case, and no record of who paid him.
Because when
you're committing a crime, when you're covering up a
crime, when you're setting up your client, a young kid
to take the fall because someone is paying you to do
that, you make sure, especially if you are a lawyer,
that you leave no trace of evidence of what you did.
That's what a good criminal defense lawyer will do for
the man who paid him (1662).
The court again overruled counsel's objection, commenting "same
ruling"
(1662).
73
j
'
SA087
The prosecutor continued:
Vomvolakis walked out of the case when it went south
and let some poor court appointed lawyer clean up his
mess.
And now they call him a liar after they made
him a liar (1664).
But
amnesia,"
Matthews
"corroborated"
the prosecutor insisted.
Gilliam
"before
he
got
"Even the defense mentee
corroborates" Gilliam, the prosecutor claimed (1667)
Concerning the evidence of the .357 weapon, the prosecutor
argued "I put that piece of evidence before you."
in the end,
day.
Nick Morris.
admits possessing the
"And
.357 that
Because that's the crime he actually
Do you know why?
committed" (1669).
(1669).
The prosecutor insisted that Morris did not
get "time served" but "two years," and that Morris did not have
to plead guilty but chose to "take responsibility for the crime
he
committed"
(1670).
Then the prosecutor insisted that the
delay in obtaining Mr. Hemphill's DNA was due to his fleeing and
living under a fake name, requiring the police to take the wrong
DNA
"out
of
the
trash"
(1671).
Counsel's
objection
overruled (1671).
The prosecution concluded by observing:
I've been carrying this case, this child, David
Pacheco, Jr. for years, for too many years. You will
take little David with you into the jury room.
.You
all have an opportunity, a rare opportunity.
You
can't undo the agony that was inflicted on that child,
on that family, on this community.
You can't undo
what has already been done.
)
It's not enough to simply convict the defendant. With
one word, with one simple word, as calmly and cooly as
74
)
was
SA088
the defendant pointed his gun across the street and
emptied his clip, without caring who was walking or
driving by, with the ease with which the defendant
essentially walked over the dead body of David
Pacheco, Jr., without a care in the world.
. I ask
you to call him what the evidence at this trial has
proven him to be, and what the law requires, a
murderer, a cold-blooded cowardly murderer of a child
(1674-1675).
Charge and Deliberations
The
court
submitted
consideration
intent
theory
a
single
count
for
intentional
murder
based
on a
(1702,
The
1708).
court
also
the
jury's
transferred
instructed on
consciousness of guilt (1684), accomplice testimony (1696), and
identification
(1704).
The court specifically instructed that
the jury heard evidence of Morris's prior identification as the
shooter only to determine the guilt or non-guilt of Mr. Hemphill
Counsel subsequently objected that this aspect of
(1704, 1705)
the court's charge suggested that the defense had a burden to
prove Morris was the shooter and Morris was just "one factor" in
the defense (1710).
The court overruled the objection, stating
that it had previously read the charge to the parties
(1711).
The court granted counsel an exception (1711)
The
jury's
cooperation
first
agreement,
Morris's mug shot,
read
)
by
court
note
the
requested
street
to
review
Gilliam's
DNA
comparison,
diagram,
"grand jury testimony from Brenda Gonzalez
reporter"
and
Mr.
Hemphill' s
tattoo
( 1 720) .
Counsel immediately objected that the jury had been left with an
inaccurate and unfair impression that the statements counsel
75
SA089
read to Gonzalez were fabricated because she denied making them,
and the portions of the 2006 grand jury presentation which the
jury was now requesting reflected she did not say them, without
revealing that there was a 2007 presentation where Gonzalez had
made the statements counsel had read (1726).
Counsel recounted his contemporaneous objection that the
jury was being misled, being left with an inaccurate and unfair
impression that Gonzalez never made those statements, which had
been said in 2007; the defense had been precluded from calling
the
2007
reporter
(1726-1727).
The
jury's
note
reinforced
counsel's perception of the ruling's unfairness and the court
remarked
court
to
"you have an exception"
include
his
(1727)
questioning
of
Counsel asked the
the
court
reporter
reflecting that she did not know if Gonzalez had testified again
before the 2007 grand jury, but the court refused (1727-1728).
The jury's next note again requested "cross-examination of
Brenda Gonzalez specific to previous testimony at grand jury,"
and to hear Gilliam's and his grandmother's
)
(1734).
The
following
testimony
of
the
day,
grand
the
jury
court again read back
court
Gonzalez's grand jury testimony (1746).
requested to rehear Gist's
testimony again
reporter
relating
the
to
The jury's third note
and Vomvolakis' s
testimony,
and
photographs of the street and the sweater (1748)
During its third day of deliberations, the jury requested
to rehear Baez's testimony,
and for the court to repeat its
76
)
SA090
instructions on
"how to evaluate the evidence"
court repeated most of its original charge
(1759).
The
(1761-1779).
The
jury's next note requested to see the photo array Baez viewed
and pictures of Morris and Mr. Hemphill (1781).
Following
deliberations,
(1782).
lunch on December 7,
the
jury announced
it
2015,
the
third day of
had reached a
verdict
Although the court had submitted a single count, the
jurors asked for instructions on how to complete the verdict
sheet (1782).
The Court Removes Mr. Hemphill From The Courtroom
Prior To Polling The Jury Without Adjourning The
Proceedings.
When the foreman announced the guilty verdict, Mr. Hemphill
declared "I didn't do it"
courtroom (1785).
and asked to be taken out of the
The court ordered the court officers to "take
[Mr. Hemphill] out"
(1785).
The prosecutor announced that Mr.
Hemphill had yelled at the jury and his family had disrupted the
proceedings (1785).
The court remarked that he saw that some of the jurors were
crying and asked that Mr. Hemphill's outburst have no effect on
them.
"What you just saw was,
could very well be,
simply a
statement by a person who is completely guilty of the offense
and notwithstanding has decided to attack the verdict this way"
(1786-1787).
)
The court then polled the jury in Mr. Hemphill's
absence and accepted the verdict (1787-1788).
It later remarked
that it had "no alternative" to removing Mr. Hemphill from the
77
)
SA091
courtroom (1792).
In thanking the alternates, the court remarked that if any
of the original jurors had been lost, a retrial would have been
"extremely unlikely" if not "impossible" (1790).
The court then
adjourned the matter for sentencing on January 6, 2016.
The Court Refuses To Grant The Defense A Single
Adjournment of Sentence To Permit Counsel To File A
Motion Alleging Serious Juror Misconduct.
On January 6, 2016, counsel appeared ex parte to request an
adjournment in order to finalize a C.P.L. §330.30 motion based
on juror misconduct
(S. 2).
Counsel explained that after the
verdict, he learned that the jury foreman had been in touch with
Elisa Hemphill, Mr. Hemphill's estranged sister-in-law who had
testified at
the
trial
(S.
2-3).
Elisa hated Mr.
Hemphill
because she blamed him for her husband's serving time for a
murder he did not commit (S. 3).
Counsel had obtained a sworn affidavit from Elisa and had
tried to contact the juror, but he had been out of town for the
holidays
(S.
3).
Not
only did the
juror know Elisa,
they
actually communicated during the trial, counsel explained (S. 23) .
Counsel requested additional
time
to follow up on the
investigation and finalize his 330.30 motion (S. 3).
The court acknowledged that counsel was acting in "good
faith"
but refused to grant
the adjournment request because
counsel could put in the "same claims"
in the form of a 440
)
motion (S. 4).
Counsel protested that a C.P.L. §330.30 motion
78
.,'
SA092
had
to
be
filed
prior
to
sentencing
procedurally from a 440 motion (S. 4).
and
was
different
The court responded that
counsel could make "exactly the same claims" in a C.P.L. §440.10
motion (S. 4).
for
Counsel protested that he was not prepared
sentencing and had informed the
requesting an adjournment (S.
5).
court that he would be
Counsel pleaded for a month
to finalize the motion prior to sentence arguing that nobody
would be
prejudiced by
the
adjournment
( S.
5) .
The
court
refused the request, remarking that it was "highly skeptical" of
the defense claims which could be raised in a 440 motion after
sentence (S. 5-6).
Again, the court insisted that there was no
distinction between the two types of motions and the defense was
"not being prejudiced"
(S. 6).
Counsel continued to protest that he was not prepared for
sentencing and had not completed a pre-sentencing submission (s.
6) .
The court granted the defense an exception (S.
6).
The
court then stated it was skeptical of all claims involving juror
misconduct
(S.
6).
According to the court,
deceased was entitled to "closure"
(S.
7).
the family of the
Again,
the court
insisted that all the remedies available via a C.P.L.
motion would be available by filing a
C.P.L.
§330.30
§440.10 motion
instead (S. 7).
Counsel was "taken aback" by the court's ruling,
as "the
juror has confirmed the existence of a relationship both pretrial and during trial"
(S.
7).
79
)
"Okay, overruled," the court
SA093
responded (S. 7).
have
been
Counsel protested that he would have liked to
advised
adjournment,
that
the
court
would
not
grant
so he could have prepared for sentence,
court's ruling caught him "off guard"
(S.
the
as the
He had never
8).
"encountered a situation like this" and asked for a few minutes
to prepare Mr. Hemphill for sentence (S. 8).
The court remarked that it had received counsel's letter
the previous day,
the first day the court was back in session
after the holidays (s. 8).
The letter did not make clear that
counsel was asking to adjourn sentencing, the court claimed (S.
9).
The court agreed to give counsel "a couple of minutes"
before going forward with the sentencing and sealed the minutes
requesting the adjournment (S. 9).
When the proceedings continued, counsel protested that he
had not seen the presentencing report and reviewed it in court
(S.
the
10).
The prosecution then requested 25 years to life for
cold-blooded
intentional
killing
which
pathological disregard for human life (S. 11).
evidenced
a
The deceeased's
sister had prepared a statement and his mother spoke prior to
sentence about her loss (S. 12-13).
Counsel renewed his application to submit a C.P.L. §330.30
motion, and the court again denied the request (S. 16).
Counsel
then argued that the evidence suggested Morris was responsible
for the crime (S. 17).
Mr. Hemphill, 37 years old at the time
)
of sentencing, had no prior contacts with the criminal justice
80
)
SA094
system (S. 17; PSR. 4,5).
He had supported his family through
his music business for years,
observed (S. 17-18).
including his children, counsel
Accordingly,
counsel asked the court to
impose the minimum sentence (S. 17).
Mr.
Hemphill extended his condolences to the deceased' s
family but maintained his innocence
(S.
He was "not a
18).
criminal" and had "nothing to do with this crime"
The
court
acknowledged
the
trial
was
(S. 18).
"unusual"
but
nonetheless characterized the evidence as substantial (S. 20).
Recognizing that Mr. Hemphill had owned a small business and had
no criminal record,
the court insisted that the crime itself
defied the possibility of mitigation (S. 20, 22).
over
Mr.
Hemphill's
protestations
of
Accordingly,
innocence,
the
court
imposed the maximum permissible sentence, 25 years to life in
prison (S. 23, 25).
ARGUMENT
POINT I
MR.
HEMPHILL'S GUILT WAS NOT PROVEN BEYOND A
EYEWITNESSES
MULTIPLE
WHERE
DOUBT
REASONABLE
INDEPENDENTLY IDENTIFIED ANOTHER MAN, NICHOLAS MORRIS,
AS THE SHOOTER, AND MORRIS POSSESSED .9MM AMMUNITION,
THE TYPE USED IN THE SHOOTING, AND HAD BRUISES ON HIS
KNUCKLES CONSISTENT WITH HIS INVOLVEMENT IN THE
FISTFIGHT WHICH PRECEDED THE SHOOTING.
U.S. CONST.,
AMEND. XIV; N.Y. CONST. ART. I, §6.
(S.
)
This case was not simply "a mess"
( 1503, 1598) , "unusual"
20)
(1610),
or
not
"tied up
in a
described it throughout trial.
bow"
as
the
parties
Rather, this case involves the
81
SA095
conviction of a 37-year-old man with no prior criminal history
where compelling evidence implicated another.
Mr. Hemphill's
conviction was secured through an astounding series of shifting
accounts
and
a
relentless
pattern
of
unfair
rulings.
The
prosecution failed to prove his identity as the shooter beyond
a reasonable doubt, but the lay jurors were unable to adequately
assess the weakness of the prosecution's proof.
Mr.
Hemphill's
conviction
violates
due
Accordingly,
process,
must
be
reversed and the indictment dismissed. U.S. Const. Amend. XIV;
N.Y. Const., Art. I, §6.
Mr.
Hemphill' s
identity as
the
shooter was
beyond a reasonable doubt as a matter of law.
whether
the
prosecution
has
presented
not proven
In determining
legally
sufficient
evidence to prove a defendant's guilt, a reviewing court must
consider whether any rational trier of fact could have found the
essential
Jackson
v.
elements
of
the
crime beyond a
reasonable
Virginia,
443
U.S.
(1979).
307,
319
doubt.
But
the
prosecution cannot satisfy this burden by merely producing some
proof supporting the guilt of the accused.
People v.
(Mary)
Reed, 40 N.Y.2d 204, 208 (1976)
Guilt cannot be established beyond a reasonable doubt by
the testimony of a witness "who, is evidently, either from moral
or mental defects, irresponsible."
)
Ledwon, 153 N.Y.10
Id at 209, quoting People v.
(1897); accord People v.
(Gregory) Reed, 64
N.Y.2d 1144, 1147-1148 (1985); People v. Russell, 99 A.D.3d 211
82
)
SA096
'
(1 st
Dept.
under
a
2012) (evidence
high
degree
of
insufficient
stress
and
where
her
complainant
was
description was
not
corroborated by videotape).
"even if
Additionally,
all
the
elements
and necessary
findings are supported by some credible evidence, the court must
examine the evidence further."
490,
495
credible
(1987) [citations
evidence
unreasonable,
fact below,
a
People v.
"If
omitted].
different
Bleakley,
finding
69 N. Y. 2d
based on all
would
then the appellate court must,
not
have
the
been
like the trier of
weigh the relative probative force of conflicting
testimony and the relative strength of conflicting inferences
that
may be
drawn
from
the
testimony."
Id.
In essence,
the
Appellate Division acts as a thirteenth juror and "if it appears
that
the
trier of
fact
has
weight it should be accorded,
failed
to give
the evidence the
then the appellate court may set
aside the verdict." Id.; People v. Danielson, 9 N.Y.3d 342, 348,
349
(2007).
This
Court
conducts
a
"de
novo
review of
the
evidence" pursuant to its weight of the evidence review power.
See People v. Diaz, 115 A.D.3d 498, 500 (1 st Dept. 2014).
A. The Eyewitnesses Who Identified Morris Interacted
With The Shooter At Close Range, In Good Lighting, For
Ten Minutes, Providing Compelling Evidence Of His
Guilt.
Here,
the
eyewitnesses
interacted
thinner man for an extended period of
close range,
with
time,
the
blue-clad
ten minutes,
at
in broad daylight during the initial altercation.
83
SA097
See People v. Berry, 27 N.Y.3d 10, 13
'\
(2016) (characterizing 5-
to-10 minute confrontation as lasting for "a considerable period
of time").
Jon-Erik Vargas spoke to the shooter face-to-face,
prior to any physical confrontation, as they asked each other
"what's up"
(JV: 875) and the man chided that Vargas was lucky
his mother was around to prevent a fight.
Brenda Gonzalez was not his mother.
placed herself
interaction,
next
to
the
Vargas responded that
Gonzalez then actually
thinner man during this
seeking to calm the two men down.
initial
Anthony Baez
also interacted with the men at close range, as he too tried to
break up the initial fight.
Meanwhile, Marisol Santiago stood
nearby watching the events unfold. And Vargas eventually pursued
the blue-clad man after he fled down University Avenue
(where
Morris lived), providing an additional opportunity to view him
beyond the 10-minute initial encounter.
One day later, Baez picked Morris's photo out of an array,
saying
he
insisted
looked
he
was
like
the
not
shooter.
sure
of
While
his
at
trial,
Baez
identification,
the
contemporaneous report of the photo array memorialized Baez's
initial statement selecting Morris.
There is no reason, at that
early stage of a high-stakes investigation,
the police would
have been anything but careful in recording such a procedure.
See
)
Diaz,
115
A.D.3d
at
statements to detective,
perceive
of,
any
499
(while
complainant
denied
"the People do not offer, nor can we
reason why
the
84
)
the
detective
would have
been
SA098
untruthful
not
only
on
the
witness
stand,
but
also
in
a
contemporaneous internal report documenting the investigation") .
Within
Santiago
two
had
days
of
the
independently
shooting,
selected
Vargas,
Morris
comprised and carefully conducted lineup.
Gonzalez
from
a
and
fairly
Gonzalez and Santiago
subsequently testified in sworn grand jury testimony that they
were sure of their identifications.
years
nine
the
prosecution
argued
been
tainted
pre-trial
later,
identifications
had
While by the time of trial,
by
the
line-up
publicity,
Gonzalez testified she did not view the News 12 interview with
Morris; nor did Vargas.
Gonzalez insisted at trial that she was
not wearing her glasses during the encounter or at the lineup,
but she also testified that back in 2006 her eyesight had been
There was no evidence she expressed any difficulty
better.
viewing the lineup at that time.
As such, the four independent
eyewitnesses who identified Morris in 2006 provide compelling
proof that Mr. Hemphill was not the shooter.
Moreover, in 2006, Michelle Gist also identified Morris as
the person involved in the initial altercation with Gilliam.
While
the
identified
prosecution argued
Morris,
once
at
trial
again,
that
Gist
Detective
had
never
Jimick's
contemporaneous reports reflected that Gist had mentioned only
"Nick"
and "Burgos"
Indeed,
in 2006.
her identification of
Morris was the reason he originally came under suspicion.
2006 she did not mention Mr. Hemphill.
85
)
In
Unbeknownst to the
SA099
Gist
jury,
then
prosecution at
tried
Mr.
to
use
Hemphill' s
her
trial
cooperation
to
secure
with
the
thousands
of
dollars in housing funds based on alleged threats.
When called
upon
back
to
recount
those
threats
she
investigator working for Morris.
Gist had "muddled" her claims
traced
them
to
an
Even the prosecutor admitted
(372). Gist had previously been
convicted of petit larceny for the unauthorized use of a credit
card,
suggesting she was willing to place her own financial
interests above those of society.
Her attempts to implicate Mr. Hemphill at trial were highly
questionable.
having
She described "D," the man in the altercation, as
long braided hair,
offered
by
Hemphill.
any
other
a
description of
witness
and
never
the
shooter not
attributed
to
Mr.
None of the other eyewitnesses recounted seeing or
speaking to Gist, or the fight taking place on top of her white
Jaguar X6,
as
she
Indeed,
claimed.
Gist
admitted she was
mistaken about her car's location when she marked the crime
scene diagram,
indicating it was on Harrison Avenue.
Gist's
testimony only added to the quantum of reasonable doubt created
by the prosecution's case.
Additionally, Mr. Hemphill and Nicholas Morris, other than
both being African-American men,
See People's Exhibits 102,
103
do not resemble each other.
(pictures of both men).
This
lack of any physical resemblance further reduces the chances
that numerous
eyewitnesses would have
86
)
independently mistaken
SA100
Morris for Mr. Hemphill shortly after the incident.
B. The Weapons Seized From Morris's Apartment And His
Bruised Knuckles Further Supported His Identification
As The Shooter.
Within hours of the shooting,
by midnight on April 16,
2006, the police had gained access to Morris's Bronx apartment.
Unbeknownst to the jury, there they found a trove of weapons and
ammunition and pictures of Morris brandishing guns and using
drugs.
next
The police recovered .9mm ammunition on the night stand
to
Morris's
Morris's
bed.
easy
access
to
weapons,
immediately after the incident, further supported his identity
as the shooter.
See, e.g., People v. Negron, 26 N.Y.3d 262, 268
(2015) (third-party's arrest and possession of weapons in close
proximity to time of offense,
supported inference of guilt);
People v.
DiPippo,
27 N.Y.3d 127,
139
evidence,
showing similar bad acts,
(2016) (reverse-Molineux
supported third pa_rty' s
guilt).
Moreover, Morris had injuries similar to those of someone
who
had
recently
been
in
a
fight,
further
identification as the blue-clad shooter.
supporting
his
See Matter of Abe A.,
56 N.Y.2d 288, 298 (1982) (that defendant had injuries consistent
with his having been involved in a fight, gave rise to probable
cause to believe he was the perpetrator).
Jimick
and Nana
testified
that
Morris had bruised knuckles.
Here, both Detective
shortly after
the
incident,
The prosecution's theory,
that
Morris had merely been in the area of the shooting, but had not
87
SA101
been involved in the original encounter,
did not explain why
Morris's knuckles would have been bruised.
This injury, given
the compelling identifications,
and Morris's ready access to
guns, could not have been "a strange coincidence." Id.
That Morris did not have tattoos on his forearms when he
spoke to News 12, did not undercut his identity as the shooter.
First,
it is unclear whether the tattoo observed was merely
temporary, in which case Morris would have had time to remove it
before going to News 12.
Of course, Morris never testified, so
he was never subjected to cross-examination on this point.
Mr.
any event,
Hemphill
also did not
have
tattoos
In
on his
forearms, so that aspect of the eyewitness descriptions did not
support his guilt.
C. Ronnell Gilliam's Testimony Was Inherently Unreliable.
Gilliam was
the
only witness at
Hemphill as the shooter.
trial
to
identify Mr.
The law views the testimony of an
accomplice with a "suspicious eye."
People v. Moses, 63 N.Y.2d
299, 305 (1984) (citing, inter alia, People v. Berger, 52 N.Y.2d
214,
218
(1980).
Especially where the motivation behind an
accomplice's
testimony
treatment,
accomplice
trustworthiness
witness.
Id.
of
is
his
hope
testimony
testimony
of
receiving
lenient
lacks
the
inherent
provided
(citing People v.
Daniels,
by
a
disinterested
37 N.Y.2d 624,
629
(1975); People v. Kress, 284 N.Y.452, 459 (1940)). Accordingly,
)
accomplice testimony is regarded with the "utmost caution." Id.
88
SA102
Not only was Gilliam a cooperator attempting to get out
from under a murder sentence himself, he repeatedly changed his
account.
First, he told the police that Morris was the shooter.
Then later, apparently at Morris's insistence, Gilliam changed
his
story.
To help Morris,
Gilliam identified Mr.
his
Hemphill
best
as
friend
the
from childhood,
shooter.
But Gilliam
admitted that he continued to lie to the police about the guns,
insisting that Mr. Hemphill had thrown the .9mm weapon in the
In his third police statement, Gilliam continued
East River.
to lie, claiming he had personally thrown the gun away in Robert
Clemente Park.
Gilliam did not mention Morris's alleged possession of the
.357 caliber gun until he entered into his cooperation agreement
years later in 2010.
By that time, Morris had already pleaded
guilty to possessing that weapon,
so Gilliam could implicate
Morris without harming him. The court then improperly allowed
the prosecution to use Morris's plea, which it had procured, to
corroborate Gilliam's account.
See Point II.
While the prosecution argued that Gilliam was "a young kid"
who was "taking the fall"
(1662) and easily manipulated by Mr.
Hemphill, Gilliam was 26 at the time of the shooting and a savvy
enough criminal
to
deal
without getting caught.
crack
throughout
his
teenage years
He was able to maintain his cooperation
agreement even after committing an additional crime involving
the
theft
of
$5000.
He
was
89
)
best
friends
with Morris,
a
SA103
demonstrated
gun
enthusiast
ammunition in his apartment.
guns without detection.
with
a
trove
of
weapons
and
Gilliam was able to dispose of the
He was far from the criminal novice the
prosecution depicted him
to be.
That Mr.
Hemphill
drove
Gilliam to North Carolina after the incident and retained a
lawyer for him,
hardly made Mr. Hemphill, who had no criminal
history, the mastermind the prosecution claimed.
Nor did Ardell Gilliam's testimony corroborate Gilliam's
claims that Mr. Hemphill was the shooter.
On direct Ardell
said Mr. Hemphill was wearing a blue sweater on Easter morning,
but then said she could not remember when cross-examined, before
returning to her original claim.
She went to the police, by her
accou_nt, only after Gilliam, the grandson she had helped raise,
had implicated Mr. Hemphill as the shooter.
While
cooperate
Ardell
claimed
in
2006,
May
she
Jimick
had
gone
claimed
to
that
interview occurred a year later in April 2007.
account shifted over the years.
the
precinct
this
to
precinct
Thus, Ardell's
It was unlikely she could
remember Mr. Hemphill's attire on Easter morning when she was
battling cancer and confined to her bed.
Rather, her shifting
testimony can only be viewed as an attempt to help the grandson
she raised over the one whose provenance she doubted.
Indeed,
in court she could not even recognize Mr. Hemphill initially.
Her conflicting testimony could not corroborate Gilliam's everchanging story.
90
)
SA104
D. The Forensic Evidence Did Not Prove Mr. Hemphill's
Identity As the Shooter.
The blue sweater introduced as People's Exhibit 98C, loomed
large in the prosecution's case.
According to the prosecution,
the recovery of the DNA from the sweater's collar proved Mr.
Hemphill's identity as the shooter.
There were several glaring
problems with this reasoning.
First,
not a
single witness,
not Gilliam,
Ardell,
or a
single eyewitness, identified the sweater as the one worn by the
shooter.
Moreover, numerous witnesses in contemporary reports
described the shooter's top, not as a sweater, but as a shirt.
Thus, Marisol Santiago told the police the shooter was wearing
a
Gilliam,
blue shirt.
when he
called his
brother William
immediately after the incident, instructed him to get rid of the
blue
shirt,
not
a
sweater.
At
trial,
Juan
Carlos
Garcia
described the shooter's top as a "golf shirt" with three buttons
on top-- not a description that matched the blue sweater.
Moreover,
numerous witnesses described being able to see
the shooter's forearms, which suggested the blue top was shortsleeved.
Castro
ultimately described
the
shooter's
top
as
short-sleeved. Similarly, Garcia and Santiago described seeing
a tattoo on the shooter's forearms.
With not a single witness identifying the stretched out,
dirty sweater, covered in metal shavings, as the one worn by the
j
shooter, the prosecution relied on William Gilliam's providing
91
)
SA105
the sweater to the police during their search of the apartment
and Jimick's testimony that he smelled gunpowder upon opening
the bag containing the sweater.
Both aspects of this evidence
were readily challenged.
First, William, although minutes away from the courthouse
during trial, and according to Gilliam present in the apartment
immediately after the incident, was never called as a witness to
establish the importance of the sweater or why he gave it to the
police.
to
Instead, the court improperly allowed the prosecution
introduce
the
through hearsay.
facts
surrounding
the
sweater's
recovery
See Point VI.
As for Jimick's claim of smelling gunpowder, there was no
gunpowder detected on the sweater although it was examined for
this
trace
evidence
shortly after
the
incident.
Moreover,
Jimick did not record this observation in any contemporaneous
report,
although he
recognized its
sweater was covered in aluminum metal shavings,
and had holes
in it,
That
significance.
the
stretched out
suggested it had not been worn by Mr.
Hemphill on Easter morning.
But even assuming the shooter wore the sweater, the DNA did
not prove that Mr. Hemphill was wearing it at the time of the
shooting.
There was no dispute that Morris changed his clothes
in Gilliam's apartment immediately after the incident.
)
Yanoff,
who examined the DNA, made clear that there was no way to tell
when the DNA had been deposited on the sweater.
92
The sweater
SA106
could have been handed down years earlier to Mr.
Hemphill' s
cousins and then briefly worn by Morris during the shooting such
that he did not deposit his DNA before changing out of
the
sweater in Gilliam's apartment. The blue sweater, which not a
single witness identified,
could not establish Mr. Hemphill's
identity as the shooter.
The remainder of the forensic evidence did nothing to help
the prosecution's case.
While the shell casings recovered at
the scene were tested for fingerprints,
none were recovered.
And the prosecution failed to test the .9mm ammunition recovered
from Morris's apartment to see if it had ever been chambered and
had markings matching the ballistics evidence connected to the
shooting.
E.
The Evidence Of Flight Was Ambiguous.
The prosecution relied heavily on Mr. Hemphill's moving his
family to North Carolina after the incident to establish his
consciousness of guilt.
ambiguous at best.
But the evidence on this point was
According to Gilliam,
within a couple of
days of the initial trip down to North Carolina,
Mr. Hemphill
and his family announced that they were returning to New York.
They had left their son there and it is not clear when they
permanently moved down to North Carolina.
prosecution portrayed Mr.
police,
Mr.
Moreover, while the
Hemphill as constantly evading the
the family had retained a New York attorney to convey
Hemphill' s
willingness to cooperate with the authorities
93
SA107
during the initial stages of the investigation.
The evidence of
flight was weaker than the prosecution was permitted to convey.
See Point V.
In sum, the prosecution failed to prove beyond a reasonable
doubt Mr. Hemphill's identity as the shooter.
unusual case,
In this highly
where there was compelling evidence of Nicholas
Morris's
identity
as
the
shooter,
capable
of
assessing
the
import
the
of
lay
the
jurors
shifting
particularly in light of the court's erroneous rulings.
were
not
accounts,
Counsel
preserved this issue for appellate review as a matter of law by
his specific motions to dismiss which were denied by the trial
court.
the
At the very least, the verdict was against the weight of
The
evidence.
conviction
must
be
reversed
and
the
indictment dismissed.
POINT II
THE COURT DENIED MR. HEMPHILL HIS RIGHT TO CONFRONT
THE WITNESSES AGAINST HIM WHERE IT ADMITTED NICHOLAS
MORRIS'S GUILTY PLEA STATEMENTS TO PROVE THAT MORRIS
POSSESSED A DIFFERENT CALIBER GUN ON THE DATE OF THE
SHOOTING, NOT THE .9MM THAT KILLED THE VICTIM, BECAUSE
THE DEFENSE HAD OPENED THE DOOR TO THIS EVIDENCE EVEN
THOUGH COUNSEL HAD SCRUPULOUSLY FOLLOWED THE COURT'S
IN LIMINE RULINGS. U.S. CONST., AMEND. VI; N.Y. CONST.
ART.
I,
§6.
To
prove
that
Morris
did
not
poss
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