The People, Respondent,v.Douglas R. Every, Appellant.BriefN.Y.Aug 30, 2017Easton Thompson Kasperek Shiffrin Partners William T. Easton Donald M. Thompson Lawrence L. Kasperek Brian Shiffrin Associate Danielle C. Wild Of Counsel Rhian D. Jones Office Manager Victoria Pellett The Powers Building 16 West Main Street Suite 243 Rochester, New York 14614 OFFICE (585) 423.8290 FAX (585) 423.0890 www.etksdefense.com Jll May 15, 2017 John P. Asiello Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: People v Every (Douglas) APL-2017-00064 Dear Mr. Asiello: Pursuant to Section 500.11 of this Court's Rules, please accept this letter-memorandum in support of Mr. Every's argument his conviction should be reversed for multiple reasons, including those set forth in the dissenting opinion at the Appellate Division, Third Department. Alternatively, because of the depth and number of issues raised, as well as their state-wide importance, Mr. Every requests the Court permit full briefing and oral argument of this appeal pursuant to Section 500.12. Factual History1 On October 23, 2013, Douglas Every fatally inflicted a single stab wound to Milton Jump. Mr. Every immediately called 911 and explained in response to a question that he stabbed Jump because Jump physically assaulted him by throwing him "all over the place," breaking his glasses, and that he was scared. Jump was a former romantic partner of Mr. Every and resided at Mr. Every's home with his current companion James Atwell, an 85-year old See generally Appellant's Opening Brief at 2-14. 1 Easton Thompson Kasperek Shiffrin LLP man confined to a wheelchair. Mr. Every had repeatedly called 911 over the past years, including requesting assistance because of Jump's abuse. Mr. Every provided an oral statement to the police, describing that Jump, who was drunk, physically assaulted and threatened him in his home. When Mr. Every went outside to call for help -three times for emergency aid and once to his friend Kathy Petti crew- Jump turned the power off from inside the house, preventing Mr. Every's cell phone signal booster from operating. Unable to call for help, Mr. Every went back inside and Jump resumed accosting him, prompting Mr. Every to pick up a knife from the kitchen counter to protect himself. Even though Jump was unarmed when Mr. Every picked up the knife, both men had instant access to a plethora of implements in the kitchen that could be used as weapons. After Mr. Every picked up the knife, Jump challenged him, "egging him on" and telling him to "go for it," while cornering him in the utility room adjoining the kitchen. Jump then lunged at Mr. Every, which resulted in Mr. Every stabbing Jump once in the chest with the knife he was holding. When Jump collapsed in the kitchen a few moments later, Mr. Every immediately tended to him and called 911. Mr. Every was prosecuted and tried for Jump's death in Tioga County Court, and was convicted of Manslaughter in the First Degree following a jury trial. Jury Trial The central issue at trial was whether Mr. Every's actions were justified. The jury heard two competing narratives describing the altercation between Mr. Every and Jump- one from Mr. Every via his video-recorded interrogation and the other through Atwell's testimony, who was home during the fatal encounter. The video recording of Mr. Every's interrogation contained over twenty instances of Mr. Every being questioned about his ability to retreaf - even though the encounter . undisputedly took place in Mr. Every's home. The recording was introduced by the People without defense counsel seeking to redact the offending portions or requesting a curative instruction that Mr. Every did not have a legal duty to retreat (A 95). After 2 See n 3, infra. 2 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP I r introducing Mr. Every's recorded interrogation, the People elicited testimony from the two lead investigators (Investigators Moulton and Nalepa) summarizing in their own words what Mr. Every said in his statement, questioning each as to whether Mr. Every told them he could have retreated - again without objection from defense counsel or a curative instruction (A 49, 88). Additionally, the People in their case in chief introduced testimony from the coroner and medical examiner, both of whom testified that Jump's death was a "homicide" without objection (A 39-A; A 75). The defense sought to introduce evidence of Jump's specific acts of violence known to Mr. Every, including that of Ms. Petticrew (the friend Mr. Every unsuccessfully tried to call that day) and of Brian Dill. Petti crew was prepared to testify that two months prior to the stabbing, she received a phone call from Mr. Every who locked himself in his bedroom to protecthimselffromJump and, in response, picked up Mr. Every from his home and allowed him to spend the night at her's (A 155-56). Dill was prepared to testify that Jump threatened him with violence on two separate occasions, the second time being only two months prior to the stabbing, and that he told Mr. Every about those threats (A 212). The court precluded the defense from introducing either testimony and, instead, relegated the defense to only introducing testimony that Jump had a reputation for becoming verbally aggressive and quarrelsome when he drank (A 156, 160-61, 215). In summation, the prosecutor reiterated the investigators' testimony that Mr. Every could have retreated, without objection from defense counsel (A 305). He also questioned why Mr. Every would have telephoned Petti crew immediately before the incident if he were truly afraid of Jump, asking "if he was so scared, how was Kathy Petticrew going to help him?" (A 306). At the charge conference, the People initially indicated that they had cases suggesting a defendant has a duty to retreat from a shared area of a residence (A 225). They then opposed any instruction on the lack of a duty to retreat in one's own home (A 279). After argument, the trial court indicated it would read either the entire CJI charge on the duty to retreat, including the lack of such duty if the offense occurred in the defendant's dwelling, or it would omit any and all reference to the duty to retreat (A 281 ). Defense counsel chose the former option, that the court read the entire CJI instruction (A 281 ). In reading the instruction, the lower court included a 3 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP I ~ l I I parenthetical notation that defined "dwelling," explaining that the determination of whether a location is part of the defendant's dwelling turns on the extent to which the defendant exercised exclusive possession and control over the area (A 333). Defense counsel did not object to the inclusion of this definition. The Appellate Division Decision On appeal, Mr. Every advanced six claims: (1) the court improperly precluded Mr. Every from introducing evidence of Jump's prior threats of violence through the testimony of Petticrew and Dill; (2) the court's inclusion of the definition of "dwelling" in its jury instructions on the duty to retreat was error; (3) Mr. Every was denied a fair trial by pervasive and substantial prosecutorial misconduct; (4) Mr. Every was denied his constitutional right to the effective assistance of counsel; (5) the jury's verdict was against the weight of the credible evidence; and ( 6) Mr. Every's sentence was harsh and excessive. In its decision, the majority below rejected each of Mr. Every's claims and affirmed his conviction. The dissent agreed that defense counsel's cumulative errors deprived Mr. Every of meaningful representation and would have reversed on that ground. Mr. Every continues to advance before this Court the first four of his claims set forth in his brief to the Appellate Division, Third Department for the reasons set forth in this submission and in his briefs below (see O'Sullivan v Boerckel, 526 US 838  and Davis v Strack, 270 F3f 111 [2d Cir 2001]). ARGUMENT I. Defense counsel's cumulative errors essentially nullified Mr. Every's justification defense and thereby deprived him of the effective assistance of counsel It is difficult to imagine a case where the cumulative effect of defense counsel's errors deprived the defendant of a fair trial to a greater extent than in this case. As noted by the dissenting justice below, "defense counsel's cumulative errors essentially nullified defendant's justification defense and removed the focus of the case away from defendant's alleged justified acts and towards a nonexistent duty to 4 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP retreat" (People v Every, 146 AD3d 1157, 1167 [3d Dept 2017] [Aarons, 1., dissenting]). A. Defense counsel was ineffective for failing to object to the People's improper questioning of the lead investigators and its arguments in summation that imposed on Mr. Every a duty to retreat For no conceivable strategic or tactical reason, defense counsel allowed evidence suggesting that Mr. Every had a duty to retreat "to be admitted at trial and argued by the People during opening and closing statements without any restraints or limiting instructions" (Every, 146 AD3d at 1168 [Aarons, J., dissenting]). Indeed, Mr.Every's failure to avail himself of the opportunity to safely retreat from the fatal encounter with Jump was among the People's central themes of trial, even though Mr. Every had no legal duty to do so. It has long been the law in New York that a co-habitant does not have a duty to retreat from his home in the face of a potentially deadly attack from another co-habitant (see People v Tomlins, 213 NY 240 ; People v Jones, 3 NY3d 491, 496  [noting that the home exception to the duty to retreat "has particular importance in cases of domestic violence"]). Despite this longstanding doctrine, the People in their opening statement declared that Mr. Every in his video-recorded interrogation admitted he could have retreated. Although not specifically raised below as among defense counsel's errors, the dissenting justice concluded that by failing to object to this statement, defense counsel "let the justification defense slip away before the first witness even testified" (Every, 146 AD3d at 1168). In line with the prosecutor's opening statement, the video recording introduced by the People contained over twenty instances of Investigator Moulton questioning Mr. Every about his ability to retreat from the encounter. 3 Defense counsel neither sought 3 See Appellant's Opening Brief at 7-8, n 3 8: "[I]fyou were outside and away from him and harms way, why would you reenter?" (A 351 [22 :3 7 :29]); "So why didn't you go to a neighbor's house?" (A 351 [22:37:46]); "Why didn't you get in the car and go?" (A 351 [22:37:48]);" ... so you weren't trying to retreat, you were like fuck this, it's my house I'm going back in, right?" (A 351 [22:38:19]); "We had you out of the fire, I'm just wondering why you went back in" (A 351 [22:38:42]); "I would've walked somewhere. I'm wondering why you didn't" (A 351 [22:38:57]); "Your dad lives down the road" (A 351 [22:39:06]); "my thing is you were out of the house, you were out of the burning fire, ... you could have went to your dad's, you walked that road, I've seen 5 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP to redact the offending portions from the video recording nor requested a curative instruction that Mr. Every did not have a legal duty to retreat. This failure allowed the notion that Mr. Every could have retreated to seep deeper into the minds of the jurors. The People perpetuated this theme and exacerbated the prejudicial effect of the un- redacted recording by asking questions of Investigators Moulton and Nalepa that explicitly pre-supposed Mr. Every had duty to retreat (see e.g. A 49 [to Inv. Nalepa: "Did he say anything about whether he had the opportunity to retreat or not?"]; A 88 [to Inv. Moulton: "Did he say whether he had the opportunity to leave at any point in time?'']). This line of improper questioning was again un-objected-to by defense counsel, and no curative instructions were given. Indeed, the jury was never affirmatively told (contemporaneously or at any time) that Mr. Every did not have a legal duty to retreat because the fatal encounter undisputedly occurred in his home. Having thoroughly primed the jury with the notion that Mr. Every could have and should have retreated throughout trial, the People argued in summation that Mr. Every's ability to retreat and failure to do so was proof that Mr. Every did not act in self-defense (see A 304-05)- to which, once again, defense counsel did not object. Defense counsel should have objected and was ineffective for failing to do so (see People v DeJesus, 42 NY2d 519, 526  ["When an attorney in summation ... presses upon the jury subjects which its members have no right to consider, the required and proper practice for opposing counsel is to interrupt the summation for the purpose of objecting to the improper statements"]). you walk that road." (A 351 [22:40:08]); "Could you have retreated again?" (A 351 [22:53:16]); "How many steps away from the back door?" (A 351 [22:53:22]); "So you could have ran again?" (A 351 [22:53 :32]); "Here, here's my thing is like I don't, once I leave a bad situation and the heats on, I don't go back in and I don't believe you would either. I don't believe you were in fear of your life when you went back in your house" (A 351 [22:54:47]); "You were not going to retreat?" (A 351 [22:56: 11 ]); "You could have dropped the knife and you could've gone out ofthe back door" (A 351 [22:56: 14]); "You could've left?" (A 351 [22:56:21]); "I'm asking if, I'm asking if there was, if you could have" (A 351 [22:56:36]); "When he came at you, could you have retreated again?" (A 351 [22:56:57]); "Could you have dropped that knife?" (A 351 [22:57:02]); "So he wouldn't back away, but you could have?" (A 351 [22:57:16]); "It's just not making sense to us. I mean you definitely could have left" (A 351 [23:19:29]); "Okay, well you could have left. You could've done a lot of things here" (A 351 [23:21 :58]); "but it's clear that you could have retreated?" (A 351 [23:55:39]); "You already left once, why did you stab him?" (A 351 [23:59:51]); "You had already left once, why did you stab him?" (A 351 [23:59:54]). 6 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP The majority below held that the People's line of questioning and remarks during summation were not improper (and, thus, defense counsel was not ineffective for failing to object), adopting the People's argument on appeal that the evidence suggesting that Mr. Every could avoided the confrontation and walked away from the encounter before it became fatal was "highly probative" to the reasonableness of Mr. Every's perceptions (see Every, 146 AD3d at 1164). The majority was in error. First, it was disingenuous for the People to argue on appeal that the sole purpose of the People's questioning ofthe investigators was to prove the element of"intent," not to impose a duty to retreat.4 At the first charging conference, after the People rested, the People urged the court to consider including an instruction that imposed a duty to retreat in light of" cases" that discuss a defendant's duty to retreat in circumstances where the defendant and victim share a space within a home (A 225) ["So while in this case this is the Defendant's home or his dwelling, there was also a space, be it the living room, pantry room, where both Milton and the Defendant had equal access. And there are cases that talk about even in those circumstances where you are in a common area, the Defendant may still be required to retreat."]). The People cannot now wholly ignore that argument and pretend that their questioning of the investigators was in no way intended to propel their misguided notion that Mr. Every had an obligation to retreat from the common area of his home. Second, if the evidence that Mr. Every had alternatives was admitted only as to his intent and the reasonableness of his perceptions, a limiting instruction should have been given to that effect (see e.g. People v Harris, 19 NY3d 679  [holding out- of-court statement admissible to provide context for defendant's reaction to statement but limiting instruction should have been given to jury not to consider statement for its truth]). However, defense counsel failed to ask for such an instruction, and the trial court did not give one sua sponte. Without such instruction, the jury was left with the impression that Mr. Every had a duty to retreat. 4 See Respondent's Brief at 19 ("The prosecutor's purpose in questioning the investigators was not to impose a duty to retreat but to prove the element of 'intent' which was one of the necessary elements of the crime charged.") 7 www.etksdefense.com IB Easton Thompson Kasperek Shiffrin LLP B. Defense counsel's errors were greatly exacerbated by failing to object to the court's erroneous and prejudicial definition of "dwelling" in its instruction on the duty to retreat Rather than minimize the prejudicial impact of such evidence and argument, the trial court's jury charge regarding the duty to retreat greatly amplified the harm. In reading the standard criminal jury instruction on the duty to retreat, the court included a parenthetical notation that defined "dwelling": The term dwelling encompasses a house, apartment or part of a structure where the Defendant lives and where others are ordinarily excluded. The determination of whether a particular location is part of a Defendant's dwelling depends on the extent to which the Defendant and persons actually sharing living quarters with the Defendant exercises exclusive possession and control over the area in question. (A 333 [emphasis added].) By reading this italicized portion, which is apparently a guide for the trial court in deciding in the first instance whether to instruct the jury on the duty to retreat,5 the trial court effectively gave the instruction that the People originally requested. Although defense counsel objected to the inclusion of such an instruction during the first charge conference (A 226), 6 counsel failed to renew that objection when the trial court read this definition to the jury and aceded to the charge. 5 See Appellant's Opening Brief at 30, n 47. 6 After entertaining argument on whether it should give an instruction on the duty to retreat or lack thereof, the court indicated that it would read either the entire standard criminal jury instruction on the duty to retreat or it would omit any and all reference to the duty to retreat (A 281 ). Defense counsel chose the former option (A 282). As the dissenting justice below found, "[w]ith the issue ofthe duty to retreat having permeated the trial, defense counsel was essentially compelled to request" that the court instruct the jury on the duty to retreat (Every, 146 AD 3d at 1170). Indeed, this Court's decision in People v Jones (3 NY3d 491, 495 ) made clear that it is error for a trial court to simply to omit reference to a duty to retreat home exception from its jury charge where the killing occurred in a shared residence. 8 www.etksdefense.com. Easton Thompson Kasperek Shiffrin LLP The majority below conceded "that the parenthetical language was not applicable to defendant's shared residence," citing this Court's decisions in Jones, 3 NY3d at 495 (2004) and People v Hernandez, 98 NY2d 1 7 5, 182-83 (2002), but concluded that the error was harmless: [A]ll of the trial testimony unequivocally described the residence where the crime occurred as defendant's home, and there was no suggestion at any time in the testimony or arguments that the shared use of the kitchen by defendant and his tenants altered that fact or gave rise to any duty to retreat. As previously noted, the evidence and arguments pertaining to alternatives available to defendant other than stabbing the victim were addressed to ... whether his actions and perceptions were reasonable; the record demonstrates that no argument was made at any time that he had a duty to retreat in his own dwelling. (Every, 146 AD3d at 1165 [emphasis added].) As the dissenting justice below found, the fact that "all of the trial testimony demonstrated that the stabbing took place in defendant's home ... does not render the error harmless" (id. at 1171; see Point II, infra). And the majority's finding that "no argument was made at any time that [Mr. Every] had a duty to retreat in his own dwelling" is simply wrong. The notion that Mr. Every had a duty to retreat permeated the trial (and the People originally asked the court to instruct the jury that Mr. Every had a duty to retreat if the fatal encounter occurred in a shared space within the home -despite New York's longstanding decisional law to the contrary). The majority characterized the effect of the erroneous charge as harmless because all of the evidence "unequivocally" described the kitchen area as part of Mr. Every's dwelling (Every, 146 AD3d at 1165). It is respectfully urged that the majority's analysis is flawed. It is precisely because there was no conceivable basis to impose a duty to retreat that the lower court's instruction was so deeply damaging to Mr. Every's defense. The reading of the parenthetical language invited the jury to answer an irrelevant question as to the "extent" to which Mr. Every had exclusive possession or control over the kitchen/pantry area of his home. If the jurors followed the court's instructions, as this Court must presume they did (see People v Baker, 14 NY3d 266, 9 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP 27 4 [20 1 0] ["Jurors are presumed to follow the legal instructions they are given"]), they could have found that Mr. Every had no such exclusive possession given Jump's status as a co-occupant and, thus, that the stabbing did not occur in Mr. Every's "dwelling," as so defined - despite the undisputed facts of the case and dictates of New York law. The instruction, thus, invited the jury to impose a non-existent duty to retreat, harming Mr. Every greatly. Against the background of the trial evidence, the court's erroneous definition of dwelling in all likelihood tilted the verdict against Mr. Every, and at minimum would have confused the jury regarding the correct rules to be applied in considering the justification defense (see People v Walker, 26 NY3d 170, 174-75 ). The majority's characterization of the erroneous instruction as harmless also stands in contrast to this Court's analysis in Jones, 3 NY 3d 491. In Jones, this Court expressly held that it was error for the trial court to fail to affirmatively instruct the jury that the defendant did not have a duty to retreat from his own home but held in the context of that case that the error was harmless (id. at 493, 497). In Jones, however, the defendant "never claimed, and there is no reason to believe, that he was fearful of being killed or harmed by the actions of the deceased" before he killed her (id. at 497). The facts of this case stand in stark contrast- from the moment Mr. Every called 911, he maintained that he was scared of Jump. Indeed, there was evidence that Mr. Every had been scared of Jump for a long time, having more than once called 911 because of his threats and abuse. There was also evidence, excluded from the jurors' consideration, that Mr. Every had fled to Petticrew's home two months earlier after being confronted by Jump (see Appellant's Opening Brief at 21-23). Although Mr. Every stated that he was not initially fearful when he re-entered the house after unsuccessfully trying to call 911 and Petticrew, he became fearful when Jump resumed accosting him. It was this fear that prompted him to pick up the kitchen knife from the counter to protect himself. The cumulative effect of defense counsel's failures -to seek redactions of the video- recorded interrogation, to object to the People's improper questioning of the lead investigators, to object or take exception to the trial court's inclusion of the definition of dwelling in its jury charge- "essentially nullified defendant's justification defense 10 www.etksdefense.com. Easton Thompson Kasperek Shiffrin LLP and removed the focus of the case away from defendant's alleged justified acts and towards a nonexistent duty to retreat" (Every, 146 AD3d at 1167). C. Defense counsel was further ineffective for failing to object to the characterization of Mr. Jump's death as a "homicide" by the medical examiner and coroner Defense counsel let the justification defense further slip away by failing to object to the medical examiner and coroner's characterization of Mr. Jump's death as a "homicide. "7 The Appellate Division Departments are in accord that it is error to allow a pathologist or medical examiner to testify that a death is a "homicide" because the characterization improperly invades the province of the jury (see e.g. People v Heath, 49 AD3d 970 [3d Dept 2008]; People v Scruggs, Ill AD3d 966 [2d Dept 2013]; PeoplevCampanella, 100AD3d 1420 [4thDept2012]). Themajoritybelowagreed that such is well-established law, but concluded that the error in this case was harmless because the medical examiner qualified his testimony by stating that it was a "medical opinion" (Every, 146 AD3d at 1166). However, the harm to Mr. Every was not ameliorated simply because the medical examiner testified that it was a "medical opinion" (A 75). There was no testimony or curative instruction given emphatically advising the jury that this was not a legal determination and that the term "homicide" is used in the medical context "only to indicate that the victim died at the hands of another person" (see Campanella, 100 AD3d at 1421). Instead, the jury was led to believe through this un-objected-to testimony that two medical professionals had given their imprimatur on the 7 The majority below found that defense counsel "did promptly object to the coroner's testimony that the victim's death was ruled a homicide, and this objection was sustained" (Every, 146 AD3d at 1166). This finding, however, misconstrues the nature of defense counsel's objection. The People asked the coroner (Stewart Bennett) if he prepared a death certificate for Mr. Jump, to which the coroner responded that he and Dr. Terzian (the medical examiner) "concurred that the death, the manner of death was ruled as homicide" (A 39-A). Defense counsel did not object to that opinion. The People then asked the coroner if he was "able to determine what the cause of death was," to which the coroner began to testify that "[t]he cause of death was exsanguination" (A 39-A). It was that testimony defense counsel objected to, on the ground that only a medical doctor could testify to the cause of death, and that objection was sustained (A 39-A). 11 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP I ~ prosecution's theory that the killing of Jump as not justified. The dissenting justice below agreed with Appellant that this error was not harmless because the evidence disproving the justification defense was not overwhelming (Every, 146 AD3d at 1171 ). D. Defense counsel was further ineffective for failing to object to the prosecutor's improper remarks in summation that denigrated the defense and vouched for the credibility of the People's key witness The nullification of Mr. Every's justification defense was furthered by defense counsel's failure to object to the prosecutor's denigrating Mr. Every's self-defense claim in summation as "a story to sell the world," a minimization or manipulation tactic, and a self-serving attempt to justify his actions. Reducing these comments to ones "better left unsaid," as the majority below did, ignores the fact that these improper remarks were pervasive over five pages of transcript (see A 305-1 0). Further, they implicated the central issue at trial, the defense of justification, which had already been undermined by the injection of the notion that Mr. Every had a non- existent duty to retreat and the testimony from two medical professionals that Jump's death was a "homicide." In addition to the People's denigrating remarks, defense counsel failed to object to the prosecutor's comments in summation that explicitly vouched for the credibility of its key witness, James Atwell, who provided the narrative relied on by the People (see A 31 0). Defense counsel's failure to make the appropriate objections to the prosecutor's summation could not have been an objective and reasonable trial strategy, nor merely misguided strategic calculations because the prosecutor's improper remarks directly undermined the only defense presented at trial -justification- and tainted the jury's ability to weigh the relative credibility of Mr. Every and Mr. Atwell- the only two persons from whom the jury heard a first-hand account of the fatal encounter. "Even when viewed in the 'totality' ofthe representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation ... deprived [Mr. Every] of the right to effective assistance of counsel" (see People v Fisher, 18 NY3d 964, 967 ; see also People v Wright, 25 NY3d, 769, 780 ). 12 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP II. The trial court's erroneous inclusion of the definition of "dwelling" in its instruction on the duty to retreat is reviewable and a free-standing ground for reversal A. The court's inclusion of the definition of "dwelling" m its instruction on the duty to retreat was error It is well-settled that a trial court commits reversible error when its jury charge, "read ... as a whole against the background of the evidence produced at the trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision" - even when it reads the standard criminal jury instruction verbatim and even when "the portions of the charge that the court read to the jury . . . were accurate in themselves" (Walker, 26 NY3d at 174-75 [internal quotation marks omitted], quoting (People v Andujas, 79 NY2d 113, 118 ). As stated above, against the background of the evidence produced at trial, the court's inclusion of the definition of dwelling likely confused the jury regarding the correct rules to be applied in considering the justification defense. The jurors were instructed that Mr. Every did not have a duty to retreat if he was in his "dwelling," then told the jury that "the determination of whether a particular location is part of a defendant's dwelling depends on the extent to which the Defendant and persons actually sharing living quarters with the Defendant exercise(s) exclusive possession and control over the area in question" (A 333). Thus, in determining whether Mr. Every had a duty to retreat, the jurors were called to assess the "extent" to which the kitchen/pantry area of his home was a shared space with Jump, to which the duty to retreat would attach, or whether Mr. Every had exclusive possession or control over the area and therefore no duty to retreat. Presuming that the jurors followed the instructions as read by the trial court (see Baker, 14 NY3d 274), there is a substantial risk that the jury concluded that Mr. Every had a duty to retreat because he had no such exclusive possession given Mr. Jump's status as a co-occupant. The fact that "all of the trial testimony unequivocally described the residence where the crime occurred as defendant's home," as pointed out by the majority below (Every, 146 AD3d at 1165), is precisely what renders this error harmful (see Point II.C, infra). 13 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP The facts of this case stand in contrast to those in People v Valentin, 2017 NY Slip Op. 024 70 (Mar 30, 20 17), in which this Court recently held that the trial court did not commit reversible error by including an initial aggressor exception in its justification charge because "there was a reasonable view of the evidence that defendant was the initial aggressor in the use of deadly physical force." Here, there was no reasonable view of the evidence that Mr. Every was not in his dwelling when he stabbed Jump. Because the fatal encounter undisputedly occurred in Mr. Every's dwelling, the factual determination was not properly before the jury. B. This error is reviewable by this Court as a free-standing ground for reversal The court's erroneous reading of this parenthetical notation in the standard criminal jury instruction defining dwelling unconstitutionally relieved the People of their burden of disproving justification beyond a reasonable doubt - thus permitting this Court to review the issue as a question of law even in the absence of a specific objection by defense counsel to the language. As this Court has previously held, errors in a jury charge that explicitly or unambiguously undermine a defendant's fundamental constitutional right are excepted from the preservation rule (see People v Thomas, 50 NY2d 467, 472  [holding a jury charge which "explicitly relieve[ s] the People of their burden of proving every element ... comes within the narrow exception" to the preservation rule]; see e.g. People v Autry, 75 NY2d 836, 839  [holding that the "narrow exception to the rule enunciated in People v McLucas ( 15 NY2d 167, 170-1 71 )"may be invoked "[i]n the case of a charge error implicating defendant's right against self-incrimination ... where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified"]). So too must an error that expressly undermines a defendant's right to a verdict only upon proof beyond a reasonable doubt (see Sullivan v Louisiana, 508 US 275, 281  [jury instruction that could be reasonably interpreted as allowing a finding of guilt based on a degree of proof less than proof of every element beyond a reasonable doubt violates due process]; People v McManus, 67 NY2d 541, 546-47  [holding justification is treated as any other element of a crime, with burden on the People to disprove justification beyond a reasonable doubt]). 14 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP t f C. The error was not harmless Contrary to the majority's holding below, and as addressed in the context of the ineffective assistance of counsel points above, there is a reasonable possibility that the court's erroneous inclusion of the definition of dwelling in its jury charge contributed to Mr. Every's conviction and cannot be dismissed as harmless (see People v Crimmins, 36 NY2d 230, 237 ). Justification was the central issue at trial and, as found by the dissenting justice below, the evidence at trial disproving justification was not overwhelming. Moreover, as argued in Appellant's weight of the evidence point raised below, the physical evidence was entirely consistent with Mr. Every's description of what transpired. III. Mr. Every's rights to present a defense and to a fair trial were violated when the lower court improperly excluded evidence of Jump's prior violent conduct toward Mr. Every and his prior threats of violence against a witness who told Mr. Every about the threats A. The lower court improperly excluded evidence from Kathy Petti crew At his trial, Mr. Every sought to call Ms. Petti crew, who was prepared to testify that two months prior to the stabbing, she received a phone call from Mr. Every who had locked himself in his bedroom to protect himself from Jump. During this call, Petticrew could hear Jump screaming at Mr. Every (A 156). She then drove to Mr. Every's home, took him to her home, and allowed him to spend the night (A 155-56, 350). The lower court precluded Petticrew's testimony regarding this call on the basis that it was hearsay (A155). The majority below found that the lower court's preclusion of this evidence from Petticrew, including her hearing Jump scream at Mr. Every, was not error because it was not evidence of specific threats and it was "cumulative" (Every, 146 AD3d at 1163). Both the lower court and the majority were in error. First, the stated basis for the preclusion of this evidence on the basis that it was hearsay is wrong. The evidence was not offered for its truth, and furthermore fell under the hearsay exclusions of 15 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP excited utterances and present sense impressions (see Appellant's Opening Brief at 21-22). Second, evidence that Mr. Every had recently locked himself in his room and called Petticrew to rescue him because he was too scared of Jump to remain in his own home was critical at his trial, especially because the evidence at trial established that Mr. Every attempted to call Petticrew immediately before the offense, but the call could not go through because Jump had shut the power off from inside the house preventing Mr. Every's cell phone signal booster from operating (A 3 51). This proffered evidence, thus, bore both on whether Jump was the initial aggressor and also on Mr. Every's state of mind. By demonstrating Jump's specific conduct towards Mr. Every, and Mr. Every's reaction to the conduct, this evidence bore directly to the reasonableness of Mr. Every's use of deadly physical force when Jump lunged at him. The evidence also placed in context Mr. Every's attempt to call Petticrew immediately before the fatal encounter to rebut the argument that he had alternatives, and would have answered the question posed by the People in summation: "if he was so scared, how was Kathy Petticrew going to help him?" (A 306). Mr. Every suffered substantial prejudice because of the improper exclusion of this evidence. The jury, having been repeatedly exposed to Mr. Every's non-existent duty to retreat, was deprived of critical evidence of his efforts to contact Petti crew. As the telephone call revealed, Mr. Every regarded Petticrew as his life-line to save him from Jump's assaultive and threatening conduct. Further exacerbating the harm, in summation the prosecutor expressly drew the juror's attention to this excluded telephone call to denigrate the notion that Mr. Every was scared of Jump. In fact, as the prosecutor knew and the jurors did not, the telephone call directly supported the notion of Mr. Every's fear. In light of the facts of this case, and the centrality of Mr. Every's state of mind regarding the defense of justification, the improper exclusion of Ms. Petticrew's testimony standing alone would require a reversal. 16 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP B. The lower court also improperly precluded testimony from Brian Dill At his trial, Mr. Every also offered testimony from Brian Dill, who was prepared to testify that Jump had threatened him on two separate occasions with violence - one time with a nail gun and the other with a hammer (A 212). One of the threats had approximately two months before Jump's death; the other occurred at specific date that defense counsel could not immediately recall during his offer of proof but said he could provide for the lower court. Dill was also prepared to testify that he told Mr. Every of these threats of violence. Defense counsel further informed the lower court that Mr. Every recalled being told by Dill that Jump had threatened him with "instruments" (A 213-14). The lower court precluded this evidence on the basis that there was no evidence that Jump had a nail gun or any object in his hand at the time of the incident and that Mr. Every was not familiar with the specifics of the threat (A 214-15). The majority below upheld this exclusion on the basis that Mr. Every did not have specific knowledge of the threats other than they were threats to use "instruments" and, thus, did not relate to the present crime (Every, 146 AD3d at 1163). The lower court and majority were in error. The failure of Mr. Every to recount the specific nature of the "instruments" that Dill referred to did not alter the admissibility of Dill's testimony. It was not Jump's threat to use a hammer or nail gun which was at issue; it was his threat to use an available implement as a weapon. The fact that Mr. Every knew that Jump threatened to use some object as a weapon against Dill on two separate occasions was enough for those prior acts of violence to be admissible to establish both his requisite subjective belief and the reasonableness of that belief. The relevance and importance of such testimony is even greater because the altercation between Jump and Mr. Every occurred in a kitchen and pantry area, which contained a plethora of implements, inc_luding knives and other cooking instruments, that could be used as weapons. CONCLUSION Homicides involving members of the same household often raise challenging factual issues of intent, including the defense of justification (see Jones, 3 NY3d at 496). In 17 www.etksdefense.com. Easton Thompson Kasperek Shiffrin LLP such cases, it is especially important that the trial court instruct the jury the proper law. At Mr. Every's trial, as both the majority and the dissent acknowledge, the lower court did not do so, exacerbating the harm caused by defense counsel's errors. For the reasons set forth in the dissenting opinion below, which scrupulously supported its analysis, and for the additional reasons set forth herein and in Appellant's briefs below, this Court should vacate Mr. Every's conviction and remand his case for a new trial at which the jury at which the jury would be correctly instructed on the law, alleviating the likelihood that the jury would impose upon Mr. Every a non-existent duty to retreat. Alternatively, in light of the state-wide importance of the issues raised, and the fact that both the prosecutor and the trial court applied the wrong standard for duty to retreat in one's dwelling despite this Court's clear dictates in Jones, this issue needs a clear reaffirmation from this Court. Thus, this Court should permit full briefing and oral argument of this appeal. Request to Reply Pursuant to Section 500.11 (e) of the Rules, Mr. Every requests the opportunity to reply to the submission of the Respondent. Cc: Kirk 0. Martin, Esq. Tioga County District Attorney 20 Court Street, P.O. Box 300 Owego, New York 13827 18 www.etksdefense.com • Easton Thompson Kasperek Shiffrin LLP ---.