The People, Respondent,v.Joel Nelson, Appellant.BriefN.Y.February 18, 2016COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOEL NELSON, Defendant-Appellant. To be argued by: MORGAN J. DENNEHY (15 Minutes) Kings County Indictment Number 3033/2008 APL-2015-00090 RESPONDENT'S BRIEF AND APPENDIX LEONARD JOBLOVE VICTOR BARALL MORGAN J. DENNEHY Assistant District Attorneys of Counsel August 24, 2015 Telephone: 718-250-2515 Facsimile: 718-250-2549 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................ i QUESTIONS PRESENTED ............................................. v PRELIMINARY STATEMENT ........................................... 1 SUMMARY OF FACTS AND ARGUMENT ................................... 3 STATEMENT OF FACTS .............................................. 7 Introduction ............................................... 7 The Trial .................................................. 8 The People's Case ..................................... 8 Defense Case ......................................... 15 The Colloquy Regarding the Spectators' Wearing of T-Shirts that Commemorated the Deceased Victim ...................................... 16 The Verdict, the C.P.L. § 330.30 Motion to Set Aside the Verdict, and the Sentence .............. 17 The Appeal ................................................ 19 ARGUMENT - DEFENDANT'S CLAIM, THAT THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE DECEASED VICTIM'S FAMILY MEMBERS TO WEAR IN THE COURTROOM T-SHIRTS THAT COMMEMORATED THE VICTIM, IS PARTIALLY UN PRESERVED FOR APPELLATE REVIEW. MOREOVER, THE WEARING OF THE T-SHIRTS DID NOT DEPRIVE DEFENDANT OF DUE PROCESS. IN ANY EVENT, ANY ERROR WAS HARMLESS ..... 22 A. Defendant' s Claim Concerning the Wearing of the Cornmemorati ve T-shirts During the Period Before Defense Counsel Raised an Objection Is Unpreserved For Appellate Review .................... 27 B. Defendant Was Not Deprived of His Due Process Right to a Fair Trial By the Continued Wearing of the Cornmemorati ve T-Shirt By the Victim's Family Members For the Short Period After the Court Denied Defense Counsel's Request to Have the T-Shirts Removed ................. 33 TABLE OF CONTENTS (cont'd) C. Any Error By the Court in Permitting Trial Spectators to Wear Commemorative T-Shirts Was PAGE Harmless ............................................ 43 CONCLUSION - THE ORDER OF THE APPELLATE DIVISION, AFFIRMING DEFENDANT'S JUDGMENT OF CONVICTION, SHOULD BE AFFIRMED .... 51 APPENDIX Transcript of Trial, page 474 .......................... RA. 1 Certification Pursuant to C.P.L.R. § 2105 TABLE OF AUTHORITIES PAGES CASES: Batson v. Kentucky, 476 U.S. 79 (1986) ......................... 30 Billings v. Polk, 441 F. 3d 238 (4th Cir. 2006) .............. 6, 25 Cagle v. State, 68 Ark. App. 248 (Ark. Ct. App. 1999) .......... 40 Carey v. Musladin, 549 U.S. 70 (2006) .............. 24, 25, 27, 29 Chapman v. California, 386 U.S. 18 (1967) ...................... 44 Colorado v. Connelly, 479 U.S. 157 (1986) ...................... 26 Daniels v. Williams, 474 U.S. 327 (1986) ....................... 26 Davis v. State, 223 S.W.3d 466 (Tex. Ct. App. 2006) ..... 6, 25, 32 Deck v. Missouri, 544 U.S. 622 (2005) ............... 22, 24, 43-44 DeShaney v. Winnebago County Dep't of Soc. Servs., 489 u.s. 189, 195-96 (1989) ............................... 26 Estelle v. Williams, 425 U.S. 501 (1976) ............ 23, 24, 28-29 Estes v. Texas, 381 U.S. 532 (1965) ............................ 23 Flagg Bros., Inc. v. Brooks, 436 u.s. 149 (1978) ............... 26 Hernandez v. New York, 500 U.S. 352 (1991) ..................... 30 Holbrook v. Flynn, 475 U.S. 560 (1986) .............. 5, 23, 36, 42 Illinois v. Allen, 397 u.s. 337 (1970) ......................... 23 i TABLE OF AUTHORITIES (cont'd) PAGES In re Woods, 154 Wash. 2d 400 (Wash. Sup. Ct. 2005) ...................... 6, 25, 39, 40, 42 Kenyon v. State, 58 Ark. App. 24 (Ark. Ct. App. 1997) ....... 5, 36 Moore v. Dempsey, 261 U.S. 86 (1923) ........................... 23 Nebraska v. Iromuanya, 282 Neb. 798 (Neb. Sup. Ct. 2011) ....... 42 Nguyen v. State, 977 S.W.2d 450 (Tex. Ct. App. 1998) ............................ 5, 35-36, 40 Norris v. Risley, 918 F.2d 828 (9th Cir. 1990) .......... 25, 40-41 People v. Allen, 86 N.Y.2d 101 (1995) .......................... 30 People v. Alvarez, 14 N.Y.3d 266 (2012) ................. 5, 22, 29 People v. Baker, 19 N.Y. 3d 739 (2010) .......................... 38 People v. Berg, 59 N.Y. 2d 294 (1983) • ••••••••• 0 • 0 ........... 0 ••• 38 People v. Best, 19 N.Y.3d 739 (2012) • ••••••• 0 ••• 6, 22, 44, 4 5' 50 People v. Clyde, 18 N.Y.3d 145 (2011) • ••• 0 ••• 0 ....... 6, 24' 44, 45 People v. Cruz, 17 N.Y. 3d 941 (2011) • ••••••• 0 ••••••••••••••• 0 •• 44 Peorle v. Guzman, 76 N.Y.2d 1 (1990) • • 0 •••••• 0 .............. 0 • 0 0 38 Peorle v. Houston, 130 Cal. App. 4th 279 (Cal. Ct. App. 2005) ...................................... 45 Peorle v. Kern, 75 N.Y.2d 638 (1990) ........................... 27 Peorle v. Marte, 12 N.Y.3d 583 (2009) .......................... 26 ii TABLE OF AUTHORITIES (cont'd) PAGES People v. McClean, 15 N.Y.3d 117 (2010) ........................ 32 People v. Nelson, 25 N.Y. 3d 955 (2015) ...................... 1, 21 People v. Nelson, 125 A.D.3d 58 (2d Dep' t 2014) ...................... 1, 19-21, 32, 34-35, 43 People v. Nieves, 2 N.Y.3d 310 (2004) .......................... 31 People v. Patterson, 399 N.Y.2d 288 (1976), aff'd, 432 U.S. 197 (1977) ................................ 29 People v. Smart, 96 N.Y.2d 793 (2001) .......................... 38 People v. Smocum, 99 N.Y.2d 418 (2003) ......................... 30 People v. Stevens, 76 N.Y.2d 833 (1990) .................... 22, 45 People v. Velasquez, 1 N.Y.3d 44 (2003) ........................ 32 People v. Zielesch, 179 Cal. App. 4th 731 (Cal. Ct. App. 2009) ............................... 39-40, 42 Perry v. New Hampshire, 132 S. Ct. 716 (2012) 26-27 Pressley v. Georgia, 558 U.S. 209, 214 (2010) 29-30 Sheppard v. Maxwell, 384 U.S. 333 (1966) ....................... 23 State v. Franklin, 174 W.Va. 469 (W.V. Sup. Ct. 1985)) ..... 40-41 State v. Gens, 107 S.C. 448 (S.C. Sup. Ct.) ................. 40-41 State v. Lord, 128 Wash. App. 2d 216 (Wash. Ct. App. 2005) ......................... 22, 27, 37, 38 iii TABLE OF AUTHORITIES (cont'd) PAGES State v. Lord, 161 Wash. 2d 276 (Wash. Sup. Ct. 2007) ........................... 27-28, 38-39 United States v. Farmer, 583 F. 3d 131 (2d Cir. 2009) ....... 22, 37 Whitman v. Bartow, 434 F.3d 968 (7th Cir. 2006) ................ 44 Wolf v. McDonnell, 418 U.S. 539 (1974) ......................... 26 STATUTES AND CONSTITUTIONAL PROVISIONS: N.Y. Const. art. VI, § 3 .................................... 5, 30 C.P.L. § 330.30 ........................................... 17, 18 C.P.L. § 470.05 ............................................ 5, 30 C.P.L. § 470.35 ............................................... 31 P.L. § 110.00 .................................................. 8 P.L. § 120.10 1' 8 P.L. § 125.25 1' 8 P.L. § 265.03 .................................................. 8 iv QUESTIONS PRESENTED 1. Whether defendant's claim that when the Supreme Court observed certain trial spectators wearing T-shirts with a photograph of the deceased victim, the court should have acted on its own, before defense counsel raised an objection, and directed those spectators to remove their T-shirts -- is unpreserved for appellate review, and thus, outside the scope of this Court's jurisdiction; and whether, in any event, the record is insufficient to permit appellate review of this claim. 2. Whether defendant made a sufficient record to permit appellate review of his claim that the Supreme Court's denial of defense counsel's request, made after counsel completed his summation, to have three trial spectators remove their T-shirts which depicted the deceased victim, deprived defendant of his due process rights; and whether, assuming that the record is sufficient to permit appellate review, the continued wearing of the T-shirts deprived defendant of due process. 3. Whether, assuming that the Supreme Court erred in permitting the spectators to continue to wear the T-shirts, the error was harmless, where the evidence of defendant's guilt was overwhelming and there is no reasonable possibility that the jury would have acquitted defendant were it not for the T-shirts. v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOEL NELSON, Defendant-Appellant. Kings County Indictment Number 3033/2008 APL-2015-00090 RESPONDENT'S BRIEF PRELIMINARY STATEMENT Defendant, Joel Nelson, appeals from an order of the Appellate Division, Second Department, dated December 24, 2014, that affirmed a May 17, 2010 judgment of the Supreme Court, Kings County, convicting defendant, after a jury trial, of Murder in the Second Degree ( P. L. § 125.25 [1] ) and Assault in the First Degree (P.L. § 120.10 [1]). See People v. Nelson, 125 A.D.3d 58 (2d Dep' t 2014). Defendant was sentenced as a second felony offender to consecutive prison terms of twenty-five years to life on the murder count and twenty-five years on the assault count (Del Giudice, J., at trial and sentence). By an order dated March 27, 2015, the Honorable Thomas A. Dickerson, Associate Justice of the Appellate Division, Second Department, granted defendant's application for leave to appeal to this Court. See People v. Nelson, 25 N.Y. 3d 955 (2015). Defendant is incarcerated pursuant to this judgment of conviction. There were no co-defendants. 2 SUMMARY OF FACTS AND ARGUMENT In September 2007, defendant and Mark Maldonado were arrested in New Jersey for attempting to steal video games and were imprisoned in New Jersey while the charges were pending. Maldonado's mother bailed Maldonado out after less than two weeks, but defendant was left behind, spending more than five months in the New Jersey jail. In mid-March 2008, an angry defendant confronted Maldonado on a Brooklyn street and asked him why he had left defendant to languish in the New Jersey jail. Maldonado could not convince defendant that he had tried to bail out defendant. Subsequently, on March 20, 2008, defendant approached Maldonado and asked if he could spend the night in Maldonado's Brooklyn apartment. Maldonado agreed, and once they had entered the apartment, Maldonado went into his bedroom, leaving defendant alone in the living room with Maldonado's roommate, Leo Walton. Defendant shot Walton three times in the back of the head, killing him. Defendant then kicked in Maldonado's bedroom door and shot him four times. Maldonado survived. At trial, the People presented overwhelming evidence of defendant's guilt. That evidence included Maldonado's testimony about the shooting, as well as the testimony of ballistics and medical experts, which testimony corroborated Maldonado's account of the shooting. Additionally, the People introduced defendant's post-arrest statements, in which defendant admitted that he had 3 brought a gun to Maldonado's apartment, but claimed that he had shot at Maldonado only after Maldonado fired at him -- a claim that was refuted by the expert testimony. On the final day of trial, defense counsel, after delivering his summation, informed the court that he had noticed, while delivering his summation, that three spectators, who were members of Walton's family, were wearing shirts with a photograph of Walton and with text saying "Remembering Leo Walton." Defense counsel requested that the spectators be directed to change their shirts. The court denied the request, stating that the family members had been sitting quietly in the audience, without drawing any attention to themselves or their shirts. The court noted that on "several occasions" previously, "they" had worn the shirts and counsel had not requested relief, and the court suggested that the timing of defense counsel's request was "tactical," coming, as it did, immediately before the prosecutor was to sum up. When defense counsel stated that he did not believe that anyone had worn the shirt before that day, the court responded that counsel was incorrect, and that, in fact, "one of the females" had worn the shirt on "at least three court dates"; moreover, the court stated, the shirts had been in plain sight before the jury had entered the courtroom "on this morning" and "while counsel was free to walk around the courtroom." 4 On appeal to this Court, defendant claims that his due process right to a fair trial was violated when the trial court, having noticed that spectators were wearing the ~Remembering Leo Walton" shirts, failed sua sponte to direct that these spectators remove or obscure their shirts as the trial continued. Defendant claims that, in any event, once his attorney noticed the shirts and requested relief, the court should have granted his request, and accordingly, he was deprived of his due process right to a fair trial. Defendant's claim with respect to the court's failure to order the removal of the shirts sua sponte is unpreserved for appellate review. See C.P.L. § 470.05(2); People v. Alvarez, 20 N.Y. 3d 75 (2012). Thus, that claim is not reviewable by this Court. See N.Y. Const. art. VI, § 3(a). In any event, the record is insufficient to permit appellate review of that claim. See Nguyen v. State, 977 S.W.2d 450, 457 (Tex. Ct. App. 1998); Kenyon v. State, 58 Ark. App. 24, 33-35 (Ark. Ct. App. 1997). Moreover, although defense counsel on the final day of the trial did request that the spectators remove the shirts, counsel did not make a record adequate to permit intelligent review of the question of whether the continued wearing of the shirts posed an ~unacceptable risk" of "impermissible factors coming into play" (see Holbrook v. Flynn, 475 U.S. 560, 570 [1986]), so as to deprive defendant of a fair trial. Indeed, it is unclear from the record whether, from the jurors' vantage point, they were 5 even able to see the ~Leo Walton" shirts, and if they could see them, what they could see. However, to the extent that defendant's claim is capable of review, the record does not demonstrate that the shirts compromised defendant's due process rights. See Billings v. Polk, 441 F. 3d 238, 246-47 (4th Cir. 2006); Davis v. State, 223 s.w. 3d 4 66, 474-75 (Tex. Ct. App. 2006); In re Woods, 154 Wash. 2d 400, 416-18 (Wash. Sup. Ct. 2005). Finally, if the trial court erred in denying defense counsel's request that the spectators be directed to change their shirts, their continued wearing of the shirts for the remainder of the trial which consisted only of the prosecutor's summation and the court's charge to the jury -- was harmless. See People v. Best, 19 N.Y.3d 739, 744-45 (2012); People v. Clyde, 18 N.Y. 3d 145, 153-54 (2011). Consequently, defendant's claims should be rejected, and the order of the Appellate Division, affirming defendant's judgment of conviction, should be affirmed. 6 STATEMENT OF FACTS Introduction In September 2007, defendant and Mark Maldonado went to New Jersey to steal video games. They intended thereafter to sell the games in their Brooklyn neighborhood. However, they were caught stealing and were imprisoned in New Jersey while the charges were pending. Maldonado's mother bailed Maldonado out after thirteen days, but defendant was left behind, spending 157 days in the New Jersey jail. Sometime in March 2008, once defendant had finally been released, he encountered Maldonado on a Brooklyn street and asked Maldonado why he had left defendant in the New Jersey jail. Maldonado claimed that he had tried to bail out defendant, but defendant did not believe him. Subsequently, on March 20, 2008, defendant and Maldonado again encountered each other on the street, and defendant asked Maldonado if he could spend the night in Maldonado's apartment, which was located at 2100 Westbury Court in Brooklyn. Maldonado said that he could. The two men went back to the apartment, and Maldonado, after giving defendant a drink, went into his bedroom, leaving defendant alone in the living room with Maldonado's roommate, Leo Walton. Defendant killed Walton, shooting him three times in the back of the head. Defendant then kicked in Maldonado's bedroom door and shot him four times, striking him in the head, chest, and legs. Maldonado survived the attack. 7 After his arrest, defendant gave oral, written, and videotaped statements in which he claimed that Maldonado had shot at defendant first, inadvertently killing Walton, and that defendant had acted in self-defense by shooting back at Maldonado with a .380 caliber handgun. However, this account was refuted by the execution-style nature of the three gunshot wounds to the back of Walton's head, and the fact that there was damage to Maldonado's bedroom door, consistent with someone kicking it in. In addition, the police department's ballistics unit tested all of the bullet shell casings that had been recovered at the crime scene and the bullets that had been removed from Maldonado's and Walton's bodies, and determined that only one weapon had been fired at the scene, .22 caliber handgun. Defendant was charged, under Kings County Indictment Number 3033/2008, with Murder in the Second Degree (P.L. § 125.25[1]), Attempted Murder in the Second Degree (P.L. §§ 110.00/125.25[1]), Assault in the First Degree (P.L. § 120.10[1]), and two counts of Criminal Possession of a Weapon in the Second Degree (P.L. §§ 265.03[1][b], [3]). The Trial The People's Case On September 30, 2007, MARK MALDONADO and defendant, new acquaintances from the same Brooklyn neighborhood, traveled together to Toms River, New Jersey. They had planned to steal video games in Toms River and sell them in Brooklyn, but that 8 plan went awry when they were caught shoplifting. Maldonado spent about two weeks in jail before his mother, ROZEILLA SEIXAS, bailed him out. Maldonado and Seixas had intended to bail out defendant, but they did not do so, because they mistakenly believed that defendant had already been released (Seixas: A. 92- 93; Maldonado: A. 181-84, A. 236-37, A. 254-55) . 1 In fact, according to CHRISTOPHER LARNEY, a record keeper for the Ocean County Department of Corrections, while Maldonado spent only thirteen days in the Ocean County jail before being bailed out, defendant was in that jail for 157 days (Larney: A. 173-76). In March 2008, Maldonado ran into defendant on the street. Defendant was angry, believing that Maldonado had deliberately left defendant in the New Jersey jail. Maldonado tried to explain to defendant that defendant was mistaken, and that he and his mother had actually tried to bail defendant out, but defendant did not believe him. Maldonado even called his mother, in order to have her explain to defendant that they had tried to free him, but even after hearing Maldonado's mother confirm Maldonado's account, defendant still was not convinced (Seixas: A. 93-94, A. 107; Maldonado: A. 184-85). 1 Numbers in parentheses preceded by "A." refer to pages of defendant's appendix; names preceding page numbers identify the witnesses whose testimony is cited. "RA.1" in parentheses refers to the respondent's appendix, which consists of only one page. 9 About a week later, on March 20, 2008, Maldonado was in a store in his Brooklyn neighborhood with a group of friends when defendant approached and asked if he could spend the night in Maldonado's apartment. Maldonado agreed to let defendant spend the night there. Maldonado shared his apartment, which was located at 2100 Westbury Court, with his girlfriend, Anastasia Lightfoot, and a friend, Leo Walton (Maldonado: A. 179-81, A. 185-87, A. 242, A. 246-47). When Maldonado and defendant arrived at the apartment, Walton was sitting in the living room and Lightfoot was in the bedroom. Defendant asked for a drink, and Maldonado went into the bedroom to pour defendant some liquor (Maldonado: A. 187-89). When Maldonado returned to the living room, he gave defendant his drink and asked Walton to clean the inside of the microwave, which was in the living room. Maldonado then went back into his bedroom, where Lightfoot was waiting, and locked the door (Maldonado: A. 189-91, A. 221, A. 226, A. 240). About twenty minutes later, Maldonado heard three gunshots coming from the living room. Maldonado jumped out of bed and told Lightfoot to get down. Defendant then kicked in the bedroom door and began firing a gun at Maldonado (Maldonado: A. 192-94, A. 224) . Maldonado tried to hide behind a closet door, but defendant kept shooting. Defendant shot Maldonado four times, striking him in the head, the chest, and each leg (Maldonado: A. 195-97). Defendant then left the apartment (Maldonado: A. 197). 10 After defendant left, Maldonado and Lightfoot climbed down the fire escape to safety (Maldonado: A. 198-200, A. 233). On March 21, 2008, at around midnight, KENRICK SMITH, a resident of 2100 Westbury Court, was awakened by a woman climbing down the fire escape outside his bedroom window. Smith called the police, and when he looked out of his window into the courtyard below, he saw a woman standing over a man who was lying on the ground (Smith: A. 85-88). The police arrived and an ambulance took Maldonado to Kings County Hospital. He underwent several surgeries to remove the bullets and treat the damage that had been inflicted (Maldonado: A. 200-02). Detective MATTHEW STEINER, of the New York City Police Department's evidence collection team, arrived at Maldonado's apartment that same night at 1:45 a.m. (Steiner: A. 271-74, A. 2 8 3) • Detective Steiner took photographs of the crime scene. Two of the photographs were close-ups of Maldonado's bedroom door and door frame. The wood around the lock on both the door and the door frame was splintered (A. 279; People's Exhibits 18 and 19) . Detective Steiner also recovered seven . 22 caliber bullet shell casings and two deformed bullets. One of the bullets was recovered from the floor inside the bedroom closet. There was a bullet hole in the closet door and another bullet hole in the wall opposite the closet door (Steiner: A. 274-78). The shell 11 casings and bullets were sealed in a bag and forwarded to the Police Department's ballistics unit for testing (Steiner: A. 2 81) . Detectives THOMAS FITZGERALD and STEVEN ORSKI were assigned to investigate the shooting (Fitzgerald: A. 111; Orski: A. 128). When Detective Orski arrived at the crime scene, emergency medical technicians were "working on" Walton, who was in the living room. In addition, the detective learned that a second man, Mark Maldonado, had been shot and taken to the hospital (Orski: A. 128-29). On March 22, 2008, Detective Fitzgerald and other detectives went to defendant's mother's house in an attempt to find defendant. Defendant's mother said that defendant was not there, but when the detectives looked around the house, they found him hiding in the closet. Defendant was handcuffed and driven to the 7lst Precinct stationhouse (Fitzgerald: A. 111-17). Back at the stationhouse, Detective Orski interviewed defendant. He read defendant his Miranda warnings, and defendant agreed to speak with the detective (Fitzgerald: A. 115-17, A. 119-20; Orski: A. 134-39). Over the course of forty-five minutes, defendant gave an oral statement. Defendant then gave a statement in writing. In both the oral and written statements, defendant said that he and Mark (Maldonado) had been arrested together, and that Mark had been released on bail while defendant stayed in jail. Defendant claimed that after he was released 12 from jail, he heard rumors that Mark was calling defendant a snitch and threatening to kill him. Defendant stated that he had confronted Mark about the rumors, and that Mark had told him that they were lies. According to defendant, Mark had invited defendant back to his apartment to smoke marijuana, and defendant had accepted. When they got to the apartment, another man was there. Mark asked the other man to clean the microwave oven, which was dirty, and the other man got Ajax and a rag from the bathroom and started to clean it. According to defendant, Mark then went into the kitchen to get drinks, and when he returned he had a gun in his hand. Defendant maintained that Mark fired multiple shots at him, but he dove to the floor and the shots hit the other man instead. Defendant stated that he got up from the floor, pulled his .380 caliber handgun from his waistband, and chased Mark into the bedroom. Defendant stated that he fired at Mark four times, then fled (Orski: A. 140-44, A. 146-48). Later that day, Assistant District Attorney JENNIFER SIPRESS went to the 71st Precinct stationhouse and took a videotaped statement from defendant (Sipress: A. 24-25, A. 28-30; Orski: A. 149-51; People's Exhibit 1 [videotaped statement]). A.D.A Sipress re-read defendant his Miranda warnings, and defendant once again waived his rights and agreed to make a statement ( Sipress: A. 27-28) . In the videotaped statement, which was played for the jury (A. 30), defendant told A.D.A Sipress that on the previous day, he had been walking up Flatbush Avenue when he 13 ran into Mark (Maldonado). Defendant claimed that he had asked Mark about rumors that Mark had wanted to kill defendant because defendant was a snitch (related to Mark's and defendant's arrest six months ago in New Jersey) . Mark had said that the rumors were not true. Defendant stated that Mark had suggested that they go to Mark's house to ~chill," and when they got there, they smoked marijuana and listened to music with another man whom defendant did not know (People's Exhibit 1). Defendant claimed that Mark went into the kitchen to get something to drink, and that when he returned to the living room, he had a . 22 caliber handgun, which he pointed at defendant. Defendant stated that Mark fired the gun three or four times and hit the other man, who was standing next to defendant and cleaning a microwave. Defendant then pulled out his .380 caliber handgun and fired four times at Mark, who had run into the bedroom. Defendant heard Mark throwing his gun ~by the tracks" screaming, and defendant fled, (People's Exhibit 1). When A.D.A Sipress asked defendant why Mark would have called him a snitch in connection with the prior New Jersey arrest, defendant replied, ~Probably to make hi[m]self look better." Defendant explained that the New Jersey arrest was for something that Mark had done, not defendant (People's Exhibit 1). On March 22, 2008, Doctor BEVERLY LEFFERS, a New York City Medical Examiner, performed an autopsy on Walton's body (Leffers: 14 A. 37, 40-41) . 2 Walton had suffered three gunshot wounds to the back of his head. One of the bullets went through Walton's brain and caused his death (Leffers: A. 42-45, A. 47). Doctor Leffers recovered the bullets and sent them to the ballistics unit for testing (Leffers: A. 49). Detective JONATHAN FOX tested the seven shell casings and the two deformed bullets that had been recovered at the crime scene, and he concluded that they all had been fired from a .22 caliber handgun (Fox: A. 62-63, 68-72). Detective Fox also tested the bullets that had been recovered from Walton's and Maldonado's bodies, and he determined that they also had been fired from a .22 caliber handgun (Fox: A. 73-78). The detective established that all seven shell casings were fired from the same gun. The bullets, however, were too deformed -- and hence, had insufficient individual markings -- for the detective to be able to determine whether all of the bullets were fired from the same gun (Fox: A. 80-82). Defense Case Detective Orski was called as a defense witness. Detective Orski had spoken with Maldonado on several occasions and Maldonado had not answered the detective's question about how 2 Walton died from his injuries. On March 21, 2008, Walton's sister, SHARA COKE, and other family members had gone to Winthrop Hospital and identified Walton's body (Coke: A. 18-19). 15 defendant had gotten into the apartment on the night of the murder. Maldonado had told Detective Orski that he had known defendant for about one and one-half years (Orski: A. 291-92). The Colloquy Regarding the Spectators' Wearing of T-Shirts that Commemorated the Deceased Victim After defense counsel completed his summation, and as the prosecutor was about to begin his summation, defense counsel requested a sidebar (A. 295). At the sidebar, defense counsel stated: (A. 296). I only realized once I started [my summation] that three members of the Walton family are sitting with shirts saying ftLeo Walton," the deceased's photo, and it says ftRemembering Leo Walton" in clear view of the jury, and I would ask that either they change their shirts or -- it's really trying to inflame the jury and influence the jury. The court observed that the family members were sitting quietly and ftinnocuously" in the audience, not drawing any attention to themselves or their shirts. The court described the shirts at issue as white T-shirts ftwith an embossed or screened some kind of rectangle" with the words ftRemembering Leo Walton" (A. 296-97). The court noted that the three family members had been wearing the shirts before defense counsel had started his summation, and that ftthey" had worn the shirt fton several occasions in the courtroom." And yet, ft[c]ounsel never brought it to [the court's] attention or requested any relief prior to 16 that." For that reason, the court denied counsel's request to have the family members change their shirts, concluding that defense counsel's argument was "disingenuous," and that the request was "a tactical move" that was brought "strategically," "immediately before his adversary [was] going to sum up" (A. 2 97) . Defense counsel disagreed with the court • s statement that the family members had worn the shirt on prior occasions. Counsel stated, "I don't believe that anybody has worn those shirts before today" (A. 297). The court replied, "You're incorrect counsel." The court found that "one of the females ha[d] worn this shirt for at least three court dates that I • ve seen her with." Additionally, the court stated, "[T]hese individuals had these shirts on this morning before the jury came in while counsel was free to walk around the courtroom. They [the shirts] were in plain sight where no one attempted to cover them up. So, counsel, your statement of facts are incorrect" (A. 297-98). The court then directed the parties to "[s]tep out," and the prosecutor began his summation (A. 298). The Verdict, the C.P.L. § 330.30 Motion to Set Aside the Verdict, and the Sentence On May 3, 2010, the jury convicted defendant of Murder in the Second Degree and Assault in the First Degree (A. 299-300). 17 On May 17, 2010, at the sentencing proceeding, defense counsel submitted a written motion to set aside the verdict pursuant to C.P.L. § 330.30 (A. 301-04). As one of three grounds in support of the motion, defendant argued that: (A. 307). the verdict was possibly influenced by improper conduct; namely, that four members 3 of the deceased's family sat quite close to the jury with tee-shirts with photos of the deceased and wording that said "Remember Leo Walton." And I believe that was an improper effort to elicit sympathy from the jury in deciding the case. Counsel acknowledged the right of the family members to attend the trial, but he argued that "when it gets to the point of a full body-length photo of the deceased, and 'Remember Leo Walton,' at the stage when the jury is hearing summations, charge, and deliberating, that that then leads to the jury making a decision based on sympathy and not on the evidence" (A. 307- 08) • The court denied defendant's motion to set aside the verdict, finding that "the jury was not inflamed by the simple wearing of the tee-shirts by members of the decedent's family," who had been sitting in the second row of the audience. The court noted for the record that one family member had worn the shirt "several times," and that the shirt, itself, was a "white 3 Defense counsel's reference to four family members is inconsistent with counsel's assertion, made after he completed his summation, that there were three family members wearing the T-shirt (A. 296) . 18 tee shirt with a silk screen with a picture of the deceased with some written language on it." The court stated that the court had noticed the shirt, but could not read what was written on it. Further, the court noted that the shirt ~was not flauntily [sic] displayed in front of the jury," and the family members who had worn the shirt did not ~in any way bring any undue attention to it." ~In fact, most of the members of the family had an outer garment on top of the tee-shirt. So it [the jury] wasn't even capable of seeing the entire thing" (A. 310-11). The court then sentenced defendant as a second felony offender to consecutive prison terms of twenty-five years to life on the murder count and twenty-five years on the assault count (A. 324). The Appeal On appeal to the Appellate Division, Second Department, defendant claimed that his due process right to a fair trial was violated by the court's refusal to compel Walton's family members to change their shirts, because the wearing of the shirts was "inherently prejudicial." By opinion and order dated December 24, 2014, the Appellate Division, by a three-to-one vote, affirmed defendant's judgment of conviction (A. 2-14). People v. Nelson, 125 A.D. 3d 58 (2d Dep't 2014). The majority opinion, authored by Justice Robert J. Miller, stated that "[a] trial court, which is in the best position to detect and evaluate the danger that spectator conduct 19 may present to the integrity of the trial process, has a constitutional duty to monitor the atmosphere of the courtroom to ensure that the jury is not exposed to spectator conduct that poses a coercive threat to the jury's ability to remain impartial" (A. 5). Id. at 62. The majority further stated that •the better course" in this case would have been for the trial court to have given Walton's family members an opportunity to •voluntarily acquiesce to defense counsel's request" to remove the shirts. However, the majority rejected defendant's suggestion that the court •impose a per se rule that would require reversal whenever a spectator brings a depiction of a deceased victim into the courtroom" (A. 6). Id. at 63. Instead, the majority concluded that • [g] iven the innumerable variations of conduct that may arise in and among court spectators, and the varying degree of impact such conduct may have on a jury, each particular instance of challenged conduct calls for a sui generis determination of its potential effect on the jury, made in light of the particular circumstances of the case" (A. 6) . Id. The majority held that, based upon the record of this case, which included the trial court's determinations that the T-shirts were not inflammatory; that Walton's family members did not conduct themselves in a manner that would draw attention to the shirts; and that the jury was not capable of seeing the shirts in their entirety, since the family members were sitting in the second row and the family members were wearing other garments 20 over the T-shirts, the court could not conclude that the trial court's determination, "that the spectator conduct did not threaten the ability of the jury to remain impartial, was error" (A. 7). Id. at 64. The majority additionally noted that "[t)o the extent that the defendant takes issue with the court's descriptions of the exact nature of the T-shirts, their visibility to the jury, and the length of time the jury was exposed to them, he failed to create a record that would provide a basis for this Court to overturn those factual findings" (A. 7). Id. In a dissenting opinion, Justice Thomas A. Dickerson agreed with the majority that "a per se rule compelling reversal in every case involving such a display is not tenable" (A. 10). Id. at 67. However, Justice Dickerson concluded that, in light of the facts and circumstances of this case, reversal was required, because "the unacceptable risk that improper considerations contributed to the jury's verdict was too great, and therefore it cannot be said with any certainty that the defendant was afforded his constitutionally guaranteed right to a fair trial" (A. 14). Id. at 71. By an order dated March 27, 2015, Justice Dickerson granted defendant's application for leave to appeal to this Court (A. 1). See People v. Nelson, 25 N.Y. 3d 955 (2015) (Dickerson, J.). 21 ARGUMENT DEFENDANT'S CLAIM, THAT THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE DECEASED VICTIM'S FAMILY MEMBERS TO WEAR IN THE COURTROOM T-SHIRTS THAT COMMEMORATED THE VICTIM, IS PARTIALLY UNPRESERVED FOR APPELLATE REVIEW. MOREOVER, THE WEARING OF THE T-SHIRTS DID NOT DEPRIVE DEFENDANT OF DUE PROCESS. IN ANY EVENT, ANY ERROR WAS HARMLESS. There is no merit to defendant's claim that the court improperly failed to direct the deceased victim's family members, who were spectators during the trial, to either remove or obscure their T-shirts that commemorated the victim, and that this failure deprived him his due process right to a fair trial. That aspect of defendant's claim which alleges error in connection with the court's failure to take action ~ sponte, before defense counsel raised an objection to the wearing of the T-shirts, is unpreserved for appellate review. See People v. Alvarez, 20 N.Y. 3d 75 (2012). Moreover, neither the court's failure to take sua sponte action, nor the court's ruling denying defense counsel's request to have the spectators change out of the T-shirts, deprived defendant of his due process right to a fair trial. See United States v. Farmer, 583 F.3d 131 (2d Cir. 2009); State v. Lord, 128 Wash. App. 2d 216 (Wash. Ct. App. 2005). In any event, any error was harmless. See Deck v. Missouri, 544 U.S. 622 (2005); People v. Best, 19 N.Y.3d 739 (2012); People v. Stevens, 76 N.Y.2d 833 (1990). 22 * * * Due process requires that "the jury's verdict be based on the evidence received in open court, not from outside sources," Sheppard v. Maxwell, 384 U.S. 333, 351 (1966), and hence, due process requires that trial courts endeavor to protect against the possibility that jurors will be exposed to extraneous influences that may be prejudicial to the defendant on trial. See Estes v. Texas, 381 U.S. 532, 550 (1965); Moore v. Dempsey, 261 u.s. 86, 91 (1923). The United States Supreme Court has addressed situations in which defendants have been potentially prejudiced by state- sponsored courtroom conduct or practices during a trial. See Holbrook v. Flynn, 475 U.S. 560 (1986) (four uniformed state troopers seated in the front row of the audience) ; Estelle v. Williams, 425 u.s. 501 (1976) (defendant compelled to wear identifiable prison clothing); Illinois v. Allen, 397 U.S. 337 (1970) (defendant bound and gagged). In addressing challenges to conduct or practices for which the state is responsible, the Supreme Court has rejected any per se rule of reversible error. See Flynn, 475 U.S. at 569; Williams, 425 U.S. at 506; Allen, 397 U.S. at 344. Rather, the test for determining whether the practice has violated the defendant's right to due process is "whether 'an unacceptable risk is presented of impermissible factors coming into play.'" Flynn, 475 u.s. at 570, quoting Williams, 425 U.S. at 505 23 (presence of uniformed state troopers at trial did not present an unacceptable risk, because defendant failed to establish inherent or actual prejudice); Williams, 425 U.S. at 505 (compelling defendant to stand trial in identifiable prison clothes created an unacceptable risk of impermissible factors coming into play); see also Deck, 54 4 U.S. at 632 (while there is a "need to restrain dangerous defendants to prevent courtroom attacks . due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case"); People v. Clyde, 18 N.Y.3d 145, 153 (2011) (consistent with due process, "(a) defendant has the right to be free of visible shackles, unless there has been a case specific, on-the-record finding of necessity"). Neither the United States Supreme Court nor this Court has heretofore had occasion to address a situation in which the potentially prejudicial courtroom conduct was not attributable to the state, but to non-governmental actors, such as relatives of the victim of a crime or organizations with particular points of view on an issue that might be implicated by the circumstances of a case. Courts have disagreed on whether the Williams/Flynn "unacceptable risk" test should apply to the conduct of non-state actors. See Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (" [r] eflecting the lack of guidance from [the Supreme Court) , lower courts have diverged widely in their treatment of 24 defendants' spectator-conduct claims"); compare Norris v. Risley, 918 F.2d 828, 830-31 (9th Cir. 1990) (applying the Williams/Flynn test, and holding that the wearing by trial spectators of "Women against Rape" buttons deprived the defendant of a fair trial); In re Woods, 154 Wash. 2d 400, 416-18 (Wash. Sup. Ct. 2005) (defendant failed to establish that the wearing of commemorative ribbons by trial spectators created an unacceptable risk of impermissible factors coming into play); with Billings v. Polk, 441 F.3d 238, 246-47 (4th Cir. 2006) (Supreme Court precedent "do[es] not clearly establish that a defendant's right to a fair jury trial is violated whenever an article of clothing worn at trial arguably conveys a message about the matter before the jury"); Davis v. State, 223 S.W.3d 466, 474-75 (Tex. Ct. App. 2006) ("Appellant does not cite any authority holding the display of this type of item by spectators [a medallion containing a photo of the deceased victim] creates inherent prejudice") . 4 Inasmuch as the Constitution generally does not regulate the conduct of non-state actors, this Court should consider applying 4 In Musladin, the Supreme Court expressly declined to decide this issue, which arose in the context of a writ of habeas corpus. The Court in Musladin concluded that the state court's denial of defendant's due process claim, which was based upon the wearing of commemorative buttons during the trial by members of the victim's family, was not contrary to Supreme Court precedent, because the Williams/Flynn test had been applied by the Supreme Court only to state conduct, and the effect of spectator conduct on a defendant's right to a fair trial was "an open question." Id. at 75-76. 25 to defendant's claim regarding spectator conduct a less stringent standard than the Williams/Flynn "unacceptable risk" test. The Due Process Clause of the Fourteenth Amendment "is phrased as a limitation on the State's power to act" and "was intended to prevent government 'from abusing [its] power, or employing it as Winnebago County ( 198 9) (citations an instrument of oppression.'" Dep't of Soc. Servs., 489 U.S. omitted) (concluding that state's DeShaney v. 189, 195-96 failure to protect individual against private violence did not constitute violation of Due Process Clause); accord Daniels v. Williams, 474 u.s. 327' 331 (1986). Indeed, the United States Supreme Court "has never held that a State's mere acquiescence in a private action converts that action into that of the State." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, Colorado v. Connelly, 479 U.S. 157, 165 requires "some sort of 'state action' 164 (1978); see also to violation of the Due Process Clause Amendment") . (1986) ("settled law" support of the a claim of Fourteenth Thus, the conduct of private actors in the context of an alleged due process violation should be viewed more leniently than the conduct of the state, as the due process clause does not protect defendants against the actions of non-state actors. See People v. Marte, 12 N.Y.3d 583, 587 (2009) (exclusionary rules designed to deter improper conduct of law enforcement officials do not apply to private individuals); Perry v. New Hampshire, 132 26 s. Ct. 716 (2012) (same); but see People v. Kern, 75 N.Y.2d 638, 655-58 ( 1990) (discriminatory peremptory challenges made by defense attorney -- a non-governmental actor -- are state action, because, inter alia, trial court permits those challenges). In any event, for the reasons stated below, whether this Court applies the Williams/Flynn test or some lesser standard, the wearing of the commemorative T-shirts by some of the trial spectators did not deprive defendant of his due process right to a fair trial. See State v. Lord, 161 wash. 2d 276, 280, 289-90 (Wash. Sup. Ct. 2007) (questioning whether standard applicable to state-sponsored courtroom conduct applied to the conduct of trial spectators, but holding that defendant in any event was not entitled to the relief under that standard). A. Defendant's Claim Concerning the Wearing of the Commemorative T-shirts During the Period Before Defense Counsel Raised an Objection Is Unpreserved For Appellate Review. In addition to challenging the court's denial of defense counsel's request to have the court direct the spectators to change their commemorative T-shirts, defendant claims that the court had an "affirmative obligation to control the courtroom and keep it free from improper influence." Thus, defendant contends, the court was required to take "prompt action on its own accord," directing that the commemorative T-shirts be excluded from the courtroom, when the court first observed the shirts being worn during the trial. See Defendant's Brief at 19-20, 28-30, 37. 27 However, defendant has failed to preserve for appellate review his claim that the court improperly failed to take action on the court's own initiative, before defense counsel raised an objection to the T-shirts. When counsel objected to the wearing of the T-shirts after counsel completed his summation, the relief he sought was to have the spectators in question "change their shirts" (A. 296).. The court then questioned the timing of counsel's objection, pointed out that "they [the spectators] wore this [the T-shirt] on several occasions in the courtroom," and denied defendant's request to have the T-shirts removed (A. 297). Counsel disagreed with the court's recollection that the T-shirts had been worn on prior occasions, stating "I don't believe anybody has worn them before today" (A. 297). The court replied, "You're incorrect, counsel. I am making the record. I'm finding as a matter of fact that one of the females has worn this shirt for at least three court dates that I've seen her with" (A. 297-98). Upon learning that the T-shirts had been worn on three prior court dates, defense counsel did not move for a mistrial; claim that the court had improperly failed to order, sua sponte, the removal of the T-shirts; or seek any other relief in regard to the prior court dates (A. 298). Therefore, any claim of error relating to the wearing of the T-shirts before defense counsel registered his objection is unpreserved for appellate review. See Williams, 425 U.S. at 508-13, 508 n.3 (1976) (while 28 compelling a defendant to wear identifiable prison clothing during trial is unconstitutional because it may suggest to the jury defendant's guilt, the error must be objected to; "there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situationn); see genera 11 y, "-P-=e-=o'-"p:..:l::.:e=--'v-'._.::_P.=a-=t-=t:..:e:..:r:..:s::.o::::n:.:, 3 9 N . Y . 2 d 2 8 8 , 2 9 5 (1976), aff'd, 432 u.s. 197 (1977) ("[s]trict adherence to the requirement that complaint be made in time to permit a correction serves a legitimate State purpose. A defendant cannot be permitted to sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal"). Defendant appears to be suggesting that defense counsel was not required to object to the wearing of the T-shirts, because the court was required to take action on its own when the court first observed the commemorative T-shirts. See Defendant's Brief at 19-20, 28-30; Carey v. Musladin, 549 U.S. at 82 (Souter, J., concurring) ("trial judge has an affirmative obligation to control the courtroom and keep it free of improper influence"). But regardless of whether the court had an obligation to act sua sponte, defendant was required to object to the court's inaction to preserve his claim of error for appellate review. People v. Alvarez, 20 N.Y.3d 75 (2012), is instructive. In Alvarez, the defendants contended that because Pressley v. Georgia, 558 U.S. 209, 214 (2010), held that trial courts were 29 required to consider alternatives to courtroom closure even when the parties themselves did not offer any proposed alternatives, there was no need for the defendants to object to the courts' apparent failure to consider alternatives to closure. This Court, however, unanimously rejected the defendants' position, holding that Presley did not decide whether preservation was still required, and further holding that preservation was required. Alvarez, 20 N.Y.2d at 81. Similarly, in Hernandez v. New York, 500 U.S. 352 ( 1991), the Supreme Court held that once a party proffers a race-neutral reason for exercising a peremptory challenge, the trial court has "the duty to determine" whether the reason is genuine or pretextual. Id. at 363; see also Batson v. Kentucky, 476 U.S. 79, 98 (1986). Just as this Court concluded in Alvarez that the existence of an affirmative duty on the part of the court did not dispense with the preservation requirement, this Court has held that a claim challenging a trial court's resolution of the question of whether a race neutral reason was genuine or pretextual must be preserved. See People v. Smocum, 99 N.Y.2d 418, 423-24 (2003); People v. Allen, 86 N.Y.2d 101, 111 (1995). Thus, because defendant has failed to preserve his claim of error, relating to the court's pre-objection failure to act on its own accord to direct the changing of the T-shirts, this Court lacks the jurisdiction to review that aspect of defendant's claim. See N.Y. Const. art. VI, § 3; C.P.L. §§ 470.05(2), 30 470.35(1); People v. Nieves, 2 N.Y.3d 310, 315-17 (2004) (except in those narrow circumstances when the preservation rule does not apply, Court of Appeals has no power to review merits of unpreserved claims) . should be limited to Accordingly, defendant's claim on appeal the propriety of the court's denial of defense counsel's request to have the T-shirts changed on the last day of the trial, and whether the continued wearing of the T-shirts after that denial (i.e., during the prosecutor's summation and the court's charge) resulted in prejudice which deprived defendant of his right to a fair trial. In any event, defendant's claim, to the extent that it relates to the period before he made an objection, is meritless, because the record is inadequate to establish that the wearing of the T-shirt or the T-shirts during that period was prejudicial to the defendant in any way. The court stated that one woman spectator had worn the shirt on "at least" three prior court dates. However, the court did not state, inter alia: where in the courtroom the woman had been seated; how long she had been present in the courtroom on any of the prior dates; and whether, in the court's estimation, the shirt she had been wearing was visible to the jury. Therefore, defendant has failed to establish that the wearing of the T-shirt or T-shirts before the objection was made violated his due process right to a fair trial, because it cannot be discerned how prejudicial, if prejudicial at all, the shirt- 31 wearing was. See People v. McLean, 15 N.Y.3d 117, 121 (2010) ("the lack of an adequate record bars review on direct appeal not only where vi tal evidence is plainly absent . but wherever the record falls short of establishing conclusively the merit of the defendant's claim"); People v. Velasquez, 1 N.Y.3d 44, 47-48 (2003) (although the right to be present at sidebar questioning need not be preserved, a defendant claiming that he was deprived of that right must nevertheless present an adequate record for appellate review) ; see also Davis v. State, 223 S.W.3d at 475 (record was insufficient to establish actual or inherent prejudice to defendant from the wearing by some trial spectators of a medallion bearing the picture of the deceased victim; the record did not detail the number of spectators wearing the medallion, where they sat, the size of the victim's image, or whether the jurors even saw the image). Indeed, defendant's claim of prejudice during the pre- objection period, which claim is premised upon the jury's actually having seen the T-shirts and having apprehended what the shirts depicted, is undermined by the fact that defense counsel did not see the shirts at all during this period, and believed that they had been worn for the first time on the day of summations (A. 297) . See People v. Nelson, 125 A. D. 3d at 64 ("[t]he court's conclusion that the T-shirts were not prominently displayed is also reflected by the fact that defense counsel did not raise an objection to the T-shirts until he noticed them"). 32 The fact that counsel did not see the shirts on the days prior to the day of summations makes it very unlikely that there was any prejudice to the defendant, let alone "an unacceptable risk . of impermissible factors coming into play." B. Defendant Was Not Deprived of His Due Process Right to a Fair Trial By the Continued Wearing of the Commemorative T- Shirt By the Victim's Family Members For the Short Period After the Court Denied Defense Counsel's Request to Have the T-Shirts Removed. Defendant's claim, that he was deprived of his due process right to a fair trial by the court's denial of defense counsel's request to have the spectators remove their commemorative T- shirts, is meritless. As an initial matter, just as the record is inadequate to permit intelligent review of defendant's claim concerning the period before he lodged an objection (see supra), so, too, the record is inadequate to decide his post-objection claim, because the record does not contain sufficient detail to establish that, on the final day of trial, the jurors saw the T- shirts. While the court stated that the spectators in question were sitting in the second row of the audience (A. 311), the record does not establish whether the spectators were sitting on the side of the courtroom closer to the jury, or on the other side of the courtroom. Likewise, the record does not establish whether or not there were court officers or other spectators seated between the T-shirt-wearing spectators and the jury box, obstructing the jury's view of the T-shirts. Similarly, the record provides no information on whether the back of the first- 33 row bench would have obstructed the jury's view of the shirts worn by the second-row spectators. The fact that the trial judge could see the shirts from his elevated position on the bench, or that defense counsel could see the shirts from the well of the courtroom, does not establish that the jurors could also see the shirts from their positions in the jury box on the side of the courtroom. Moreover, as the court observed, "most" of the family members who were wearing the T-shirt "had an outer garment on top of the T-shirt," and thus, the jurors were not "capable of seeing the entire thing" (A. 311) . 5 As the Appellate Division correctly concluded, "To the extent that the defendant takes issue with the court's descriptions of the exact nature of the T-shirts, their visibility to the jury, and the length of time that the jury was exposed to them, he failed to create a record that would provide 5 Defense counsel at trial maintained that the T-shirts were "in clear view of the jury" (A. 296), but he did not say anything to substantiate his bald assertion that the shirts actually could be seen from the jury box. Outside the presence of the jury, counsel could have sought to have the court or someone else occupy the jury box to describe what, if anything, could be seen on the spectators' shirts from that vantage point, but counsel made no such application. Moreover, defendant contends in his brief that the T-shirts must have been in "plain sight" of the jury, because the court said they were. See Defendant's Brief at 36, 37. However, the better reading of the court's characterization of the shirts as being in "plain sight" (see supra at 17) is that the shirts were in plain sight to defense counsel, "on this morning before the jury came in while counsel was free to walk around the courtroom" (A. 298). 34 a basis for this Court to overturn [the trial court's] factual findings" (A. 7). Nelson, 125 A.D.3d at 64. The factual findings made by the trial court to support the court's ultimate determination that the wearing of the T-shirts did not impede the jury's ability to decide the case on the evidence alone were that: the T-shirts were not inflammatory; the family members who were wearing the T-shirts sat quietly and did not draw attention to themselves; and the jury was not capable of seeing the entire T-shirt, because the family members were sitting in the second row of the audience and the shirts were obscured by the wearing of outer garments (A. 296-98, A. 310-11). Id. This Court should conclude, like the Appellate Division (A. 7), that there is no basis on which to upset the trial court's determination that the wearing of the commemorative T-shirts did not threaten the jury's ability to remain impartial. Indeed, the record is inadequate to determine whether there existed the possibility of any prejudice resulting from the court's decision to deny defense counsel's application. See Nguyen v. State, 977 S.W.2d 450, 457 (Tex. Ct. App. 1998) (defendant failed to establish a due process violation resulting from the court's denial of defense counsel's request to have seven trial spectators remove "large buttons portraying a color photograph of the deceased," because "the record contains no indication where the individuals were sitting, whether they were seated together, or if the jurors did in fact see the buttons 35 from where they were seated"); Kenyon v. State, 58 Ark. App. 24, 33-35 (Ark. App. 1997) (denial of defendant's motion for a mistrial was proper, where, inter alia, defendant did not establish whether jurors saw spectators wearing badges with picture of victim, and, if the jurors saw badges, whether they could tell what was on them) . 6 In any event, assuming that the record is sufficient to permit review of defendant's claim, and assuming that the standard applicable to state actors also applies here, the court properly rejected defense counsel's request to have the three family members remove the T-shirts, because the continued wearing of the T-shirts did not create an •unacceptable risk" of • impermissible factors coming into play" (Flynn, 4 7 5 U.S. at 570), such that defendant was deprived of due process. Indeed, the continued wearing of the T-shirts for the period encompassing the prosecutor's summation and the court's jury charge did not create an unacceptable risk to defendant's right to a fair trial for several reasons. First, the period of time from when defense counsel requested to have the shirts changed, after counsel concluded his summation late in the morning session, to when the jury was sent 6 Defendant asserts that •on this record, that the jury saw the T-shirts and the large image of Walton embossed on them cannot seriously be disputed." See Defendant's Brief at 37. Defendant is incorrect. The record is silent as to what the jury may have seen. 36 to deliberate following the court's charge was, at most, one to two hours. Thus, the jury's exposure to the shirts was minimal. See State v. Lord, 128 Wash. App. 2d at 22-23 (denial of defense request to have 13 trial spectators remove buttons with a photograph of victim did not deprive defendant of fair trial, where, inter alia, buttons were worn for a brief period during trial), aff'd, 161 Wash. 2d 276 (2007). Second, the family members who wore the T-shirt during that period did not draw attention to themselves or the shirt, and, in fact, "most of the members of the family had an outer garment on top of the tee-shirt," which prevented the jurors from "seeing the entire thing" (A. 296-97, A. 311). Thus, the T-shirts were not prominently displayed. This conclusion is supported by the fact that defense counsel did not notice the T-shirts at all until he was delivering his summation on the fifth and final day of the trial, by which point the shirts had been worn for some period of time on that day and on at least three prior court dates. See Farmer, 583 F.3d at 149-50 (the wearing of commemorative T-shirts by the victim's family members during trial did not pose an unacceptable threat to the defendant's right to a fair trial, in part because defense counsel did not even see the shirts for three days). Third, even assuming that the jurors saw the shirts and realized what was depicted on them, the court delivered an extensive cautionary instruction in its jury charge, informing 37 the jurors that their verdict "must be free from passion, from prejudice, from sympathy, or any other improper consideration," and must instead be based upon "the evidence presented and [the court's] instructions regarding the applicable law" (RA. 1 [Trial Transcript at 474]). The court additionally stated, You know, before you were chosen as jurors in this case you were all carefully questioned as to your underlying thoughts and possible prejudices. You all expressed your willingness and readiness to do your duty and live up to your oath. You must withstand the urge or tendency to base your decision on anything other than the evidence presented and my instructions regarding the applicable law. Please remember that evidence consists solely of witness's testimony, exhibits, and stipulations entered into by the parties. Matters such as sympathy, bias, emotion, prejudice, must have absolutely no bearing on your deliberations and verdict. (RA. 1) (emphasis added). This instruction ameliorated any alleged prejudice, because "[j]urors are presumed to follow the legal instructions they are given."' People v. Baker, 14 N.Y.3d 266, 274 (2010) (citations omitted); see also People v. Smart, 96 N.Y.2d 793, 795 (2001); People v. Guzman, 76 N.Y.2d 1, 7 (1990); People v. Berg, 59 N.Y.2d 294, 299-300 (1983). As the Washington Supreme Court has observed: the jurors we guilt both forti tude to Courts must presume that entrust with determining understand, and have the withstand, the potential spectators who show sympathy influence from or affiliation. 38 A simple picture button, a sign of support or sympathy that does not expressly advocate guilt or innocence, does not alone impermissibly bias a jury. Lord, 161 Wash. 2d at 278. Fourth, the question of defendant's guilt was not a close one. Defendant's claim of justification in his post-arrest statements was fatally undermined by the People's witnesses and by the physical evidence, which overwhelmingly established that defendant, without provocation, murdered Leo Walton and shot Maldonado four times. See Section c, infra, at 46-49. Indeed, the jury returned a very quick verdict, beginning its deliberations in the early afternoon, and announcing its verdict that same day at 2:40 p.m. (A. 299). There is no reason whatsoever to believe that the apparent ease with which the jury agreed upon defendant's guilt was caused by the jurors' alleged observations of spectators wearing T-shirts commemorating the victim. Rather, the verdict undoubtedly resulted from the strength of the People's evidence and the implausibility of defendant's justification defense. Thus, as the Appellate Division correctly determined, the continued wearing of the commemorative T-shirts did not deprive defendant of his constitutional right to a fair trial. See People v. Zielesch, 179 Cal. App. 4th 731, 745 (Cal. Ct. App. 2009) (court's decision to permit trial spectators to wear buttons depicting the deceased victim was not unconstitutional; 39 the image of the victim was "not unduly suggestive of guilt," and the jurors were instructed to decide case on the evidence, not sympathy); Woods, 154 Wash. 2d at 416-18 (defendant did meet burden of establishing that the wearing of commemorative ribbons by trial spectators violated his right to a fair trial; the ribbons did "[did] not express any conclusion about [the defendant's] guilt or innocence"); Cagle v. State, 68 Ark. App. 248, 251 (Ark. Ct. App. 1999) (court did not err by declining to have trial spectators remove buttons with a photograph of the victim, because there was no evidence in the record that the jurors saw the buttons or that they influenced the verdict); Nguyen, 977 S.W.2d at 457 (Tex. Ct. App. 1998) (see supra at 35- 3 6) • In support of his claim that the wearing of the T-shirts was "inherently prejudicial," defendant cites to State v. Gens, 107 S.C. 448 (S.C. Sup. Ct. 1917), State v. Franklin, 174 W. Va. 469 (W.V. Sup. Ct. 1985), and Norris v. Risley, 918 F.2d 828 (9th Cir. 1990), see Defendant's Brief at 20-21, but his reliance on those cases is misplaced. In each of those cases, the atmosphere that was created by the spectator conduct was far more likely to have been prejudicial to the defendant than the spectator conduct in the instant case. In Gens, during a trial in which the defendant was charged with liquor trafficking, several spectators who were seated in the first row of the courtroom held up large signs in front of the jury condemning liquor trafficking. Gens, 40 107 S.C. at 449-50. In Franklin, during a trial in which the defendant was charged with driving while intoxicated resulting in death, "from ten to thirty MADD (Mothers Against Drunk Driving) demonstrators remained in court throughout the trial and sat directly in front of the jury. Some cradled sleeping infants in their laps and all prominently displayed their MADD buttons." Franklin, 174 W.Va. at 474. In addition, a sheriff, who was the president of the local MADD chapter, handed out MADD buttons to prospective jurors. I d. In Norris, during the defendant's rape trial, there was "a large number of women wearing 'Women Against Rape' buttons in the public elevators, in the courtroom, [and] on their way to and from the courtroom." Moreover, "the women served refreshments outside the courtroom on behalf of the state." Norris, 918 F.2d at 829. In contrast to the conspicuous and persistent conduct in Gens, Franklin, and Norris, the spectator conduct at issue in this case was quite discreet, as it merely involved the wearing of commemorative T-shirts by three family members for a brief period of time. Moreover, the shirts were not prominently displayed. Furthermore, in contrast to the conduct of the spectators in this case, the conduct in Gens, Franklin, and Norris involved the unambiguous, organized expression of political beliefs, which the jury in each case may have construed as a demand for a guilty verdict and may have found difficult to disregard. Here, the 41 wearing of the T-shirts was at bottom an expression of grief by the members of the victim's family, and it did not present an unacceptable risk that the jury would find defendant guilty. See Nebraska v. Iromuanya, 282 Neb. 798, 828 (Neb. Sup. Ct. 2011) (" [T] he jurors were likely to have viewed the buttons [which depicted the victim] as signs of grief instead of a collective call for [the defendant's] conviction"); Zielesch, 179 Cal. App. 4th at 745 (buttons worn by trial spectators which depicted the deceased victim did not suggest defendant's guilt; "[d]efendant's claim to the contrary is an insult to the intelligence, integrity, and resolve of the jurors"); Woods, 154 Wash. 2d at 418 (wearing of commemorative ribbons by members of victim's family was not prejudicial; "In most cases involving violent crime, there is at least one grieving family present at the trial and the presence of such persons should not come as any surprise to the jury members"); see also Flynn, 475 U.S. at 569 (presence of uniformed state troopers sitting in first row of spectator's section did not unambiguously convey message that defendant was dangerous or culpable, but supported a "wider range of inferences," and thus was not inherently prejudicial). The other cases that defendant cites (see Defendant's Brief at 22-27) are not helpful in resolving the issue presented here, because they involve instances of spectator displays that were met with timely objections, and were thereafter cured by the court. Apparently, defendant cites those cases to show that 42 courts have held that the better practice is to quash such displays, and thereby to eliminate the risk of impermissible factors coming into play. See Nelson, 125 A. D. 3d at 63 ("In a close case, the most prudent course is to err on the side of caution rather than test the outermost bounds of constitutionality"). However, the conclusion that commemorative displays should be avoided does not resolve the issue presented here -- namely, whether, based upon the record of the proceedings below, the court's denial of defense counsel's objection at the end of the trial to the continued wearing of the T-shirts created an unacceptable risk of impermissible factors coming into play. For the reasons stated above, the continued wearing of the T- shirts did not constitute an unacceptable risk. C. Any Error By the Court in Permitting Trial Spectators to Wear Commemorative T-Shirts Was Harmless. The United States Supreme Court has recognized that state- sponsored courtroom practices which violate a defendant's due process right to a fair trial can be harmless. In Deck v. Missouri, 544 u.s. 622 (2005), the Supreme Court held: [W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove 'beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.' 43 Id. at 635, quoting Chapman v. California, 386 U.S. 18, 24 (1967); see also Whitman v. Bartow, 434 F.3d 968, 971-72 (7th Cir. 2006) (due process violation of compelling defendant to attend his trial in prison clothing was harmless). This Court, too, has applied harmless error analysis when courts have placed visible restraints on defendants during the course of a trial, thereby depriving them of their federal due process right to a fair trial. See Best, 19 N.Y.3d at 744-45 (while it was error for the court to restrain defendant during the trial without articulating any justification, the error was harmless because the ~evidence of guilt [was] overwhelming and there [was] no reasonable possibility that [the use of restraints] affected the outcome of the trial"); Clyde, 18 N.Y.3d at 153-54 (harmless error analysis is applicable to shackling cases; the question is ~whether proof of [the defendant's] guilt was overwhelming and whether there is no reasonable possibility that the jury would have acquitted [the defendant] were it not for the shacking error") ; People v. Cruz, 17 N.Y. 3d 941, 945 (2011) (~Harmless error analysis is applicable to a violation of Deck"). Because harmless error analysis applies to state-sponsored conduct that may have the effect of undermining the presumption of innocence (see Deck, 54 4 U.S. at 630) , then, a fortiori, harmless error analysis should apply in the context of spectator conduct which may deprive the defendant of a fair trial in the 44 same way. See People v. Houston, 130 Cal. App. 4th 279, 309, 319-20 (2005) (any error in permitting courtroom spectators to display buttons and placards bearing the victim's picture was harmless in light of court's jury instructions and the overwhelming evidence of defendant's guilt) . Indeed, a potentially prejudicial message that implicitly bears the imprimatur of the state undoubtedly has a greater impact on the jury than spectator conduct would. Furthermore, harmless error analysis should be applicable in this case, because the alleged prejudice resulting from the court's permitting the spectators to continue to wear the T- shirts is akin to the potential for a photograph of a deceased victim, erroneously admitted into evidence, to unfairly influence the verdict. This Court has held that an error in admitting into evidence a photograph of the deceased victim may be harmless. See Stevens, 76 N.Y.2d at 836 (portrait of the victim which was taken when he was alive was erroneously admitted into evidence, because it was irrelevant and could "arouse the jury's emotions," but error was harmless). In this case, any error by the court in denying defense counsel's request to have the three spectators remove their commemorative T-shirts was harmless. There is no reasonable possibility that the spectator's continued wearing of the T- shirts affected the verdict. 18 N.Y.3d at 153-54. See Best, 19 N.Y.3d at 744; Clyde, 45 First, as discussed supra at 36-39, the potential prejudice to defendant was minimal, because the period that the shirts were worn, from the court's denial of defendant's request until the jury retired for deliberations, was short; the visibility of the image or writing on the shirts was not established; and the court delivered instructions to the jurors, admonishing them that they were required to decide the case based on the evidence presented and not on emotion or sympathy (RA. l). Second, the evidence of defendant's guilt was overwhelming. The surviving victim, Mark Maldonado, testified that he and defendant were friends who went to New Jersey to steal video games, but that they were arrested and imprisoned in New Jersey. Maldonado's mother posted Maldonado's bail after less than two weeks, but defendant remained in jail for more than five months. Sometime in mid-March 2008, after defendant was released, he confronted Maldonado, who testified that defendant was angry at him for leaving defendant in the New Jersey jail. Maldonado further testified that he attempted to convince defendant that he and his mother had tried to post defendant's bail, and that he even had his mother speak to defendant and try and convince defendant that Maldonado's account was true. Defendant was not convinced. Maldonado's testimony was corroborated by the testimony of Maldonado's mother, Rozeilla Seixas, who described the posting of bail for Maldonado, the attempt to post bail for 46 defendant, and the telephone call that was placed to her by Maldonado and defendant. Maldonado further testified that after that encounter, defendant approached him a second time, on March 20, 2008, and asked if he could spend the night in Maldonado's apartment. Maldonado said yes. When they arrived at the apartment, Maldonado's roommate, Leo Walton, was present in the living room. Maldonado made defendant a drink, and then went into his bedroom, where his girlfriend was waiting for him. Maldonado locked the door, leaving defendant and Walton alone in the living room. Maldonado testified that about twenty minutes later, he heard three gunshots coming from the living room. Maldonado jumped out of bed and told his girlfriend to get down. Defendant then kicked in the bedroom door and began firing at Maldonado, who tried to hide'behind a closet door. Defendant kept shooting, hitting Maldonado in the head, chest, and each leg. When the police arrived, they found Walton dead in the living room with three gunshot wounds to the back of his head. After his arrest, defendant gave several statements to the authorities in which he claimed self-defense, stating that Maldonado had fired at defendant first, with a .22 caliber handgun; that defendant had dove to the floor; and that the shots intended for him had struck and killed Walton. Defendant told the police that he had chased Maldonado into his bedroom and returned fired with his .380 caliber handgun. Tellingly, even by 47 defendant's own account, he brought a handgun with him to Maldonado's apartment. The ballistics and physical evidence at the crime scene corroborated Maldonado's testimony and flatly refuted defendant's claim of self-defense. The ballistics evidence established that the only ~ of handgun fired at the scene was a . 22 caliber handgun, because the seven shell casings and the two deformed bullets recovered from the crime scene, as well as the bullets recovered from Walton's and Maldonado's bodies, were all . 22 caliber ammunition. Additionally, the ballistics evidence demonstrated that that only one gun had been fired at the scene, because, although Detective Fox could not conclude that all of the deformed bullets had been fired from the same gun, the testing did establish that all seven shell casings that were recovered from the scene had been ejected from the same gun. Therefore, defendant's admission that he fired a gun in Maldonado's apartment-- and the absence of any evidence that any other gun was fired, or that there was a struggle over the gun -- together with Maldonado's testimony constituted overwhelming evidence of defendant's guilt. 7 7 It is of no moment that in his statements, defendant, in an effort to exculpate himself, claimed that his gun was a .380 handgun. What is significant is that defendant supposedly knew that Maldonado's weapon was a .22 --the very type of weapon used by the actual shooter, defendant. 48 Moreover, the physical evidence at the scene contradicted defendant's claim that he had chased Maldonado into his bedroom, and supported Maldonado's testimony that defendant had kicked in his bedroom door prior to shooting him, because the evidence established that the door jamb around the lock on Maldonado's bedroom door was splintered. Additionally, there were bullet holes in Maldonado's bedroom closet door, which corroborated Maldonado's account that, in a desperate attempt to save his life, he had tried to take shelter behind the closet door. Furthermore, defendant's claim that Maldonado had been firing at defendant, but had missed and hit Walton, was patently false, because the wild shooting described by defendant could not have resulted in three bullets entering the back of Walton's head in such a precise manner. Rather, those fatal wounds were consistent with the inference that defendant, in order to eliminate Walton as a witness, had dispatched him execution- style, by sneaking up from behind and firing into the back of his head, before setting his sights on Maldonado the intended target. Finally, the evidence showed that defendant was angry at Maldonado for leaving him in a New Jersey jail for five months, providing defendant with a compelling motive to kill. Thus, even if erroneous, the court's decision to permit the spectators to continue wearing the commemorative T-shirts for the prosecutor's summation and the jury charge was harmless, because 49 there is no reasonable possibility that the jury would have acquitted defendant were it not for the continued wearing of the T-shirts. See Best, 19 N.Y.3d at 744-45. Accordingly, for all of these reasons, this Court should reject defendant's claim that he is entitled to a new trial. 50 CONCLUSION THE ORDER OF THE APPELLATE DIVISION, AFFIRMING DEFENDANT'S JUDGMENT OF CONVICTION, SHOULD BE AFFIRMED. Dated: Brooklyn, New York August 24, 2015 LEONARD JOBLOVE VICTOR BARALL MORGAN J. DENNEHY Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 51 Appendix 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Charge 474 when you all agree upon and return a verdict that's based on the evidence in this case and the law applicable thereto. This case is important. This case is important to the defendant; this case is important to the People. Whatever verdict you return, it must be free from passion, from prejudice, from sympathy, or any other improper consideration. You know, before you were chosen as jurors in this case you were all carefully questioned as to your underlying thoughts and possible prejudices. You all expressed your willingness and readiness to do your duty and live up to your oath. You must withstand any urge or tendency to base your decision on anything other than the evidence presented and my instructions regarding the applicable law. Please remember that evidence consists solely of witness's testimony, exhibits, and stipulations entered into by the parties. Matters such as sympathy, bias, emotion, prejudice, must have absolutely no bearing on your deliberations and verdict. Ladies and gentlemen, I'm asking you to take this case, give it your careful consideration, consider every part of the evidence, and then determine whether the People have proven the defendant guilty beyond a Rl\. 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Kings County Indictment Number 3033/2008 -against- JOEL NELSON, APL-2015-00090 Defendant-Appellant. CERTIFICATION PURSUANT TO C.P.L.R. § 2105 I, Morgan J. Dennehy, an attorney admitted to practice in the courts of New York and an assistant district attorney in Kings County, certify that I have compared the contents of this Appendix with page 4 7 4 of the transcript provided by the official court reporter, and that the contents of the Appendix is a true and complete copy of page 474 of the transcript. Dated: Brooklyn, New York August 24, 2015 ~v:l;Z::~ Assistant District Attorney Kings County
