The People, Respondent,v.Douglas R. Every, Appellant.

Brief

N.Y.August 30, 2017

To Be Argued By: William T. Easton, Esq. Easton Thompson Kasperek Shiffrin LLP Requested Time: 15 minutes SUPREME COURT O:F THE STATE OF NEW YORK APPELLATE DIVISION: THIRD DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT -vs- DOUGLAS EVERY, APPELLANT Appeall'lo. 107581 (Tioga County Indictment No. 2014-06) REPLY BRIEF FOR APPELLANT Attorney for Respondent: Kirk 0. Martin, Esq. Tioga County District Attorney By: Cheryll\lancini, Esq. P.O. Box 300 20 Court Street Owego, New York 13827 (607) 687-8650 EASTON THOMPSON KASPEREK SHIFFRIN LLP William T. Easton; Esq. Danielle C. Wild, Esq. Attorneys for.Appellant 16 W. Main Street, Suite 243 Rochester, New York 14614 (585) 423-8290 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................ ii PRELIMINARY STATEMENT ............................................. 1 POINT I. AT A TRIAL IN WHICH DEFENDANT ASSERTED THE DEFENSE OF JUSTIFICATION, THE LOWER COURT IMPROPERLY EXCLUDED EVIDENCE OF DECEDENT'S PRIOR THREATS OF VIOLENCE AGAINST A WITNESS AND DECEDENT'S PRIOR CONDUCT TOWARD DEFENDANT AND IMPROPERLY LIMITED EVIDENCE OF DECEDENT'S REPUTATION FOR VIOLENCE ...................... 3 A. The lower court improperly precluded Mr. Every from introducing evidence of the decedent's specific acts of threats and aggression against a witness who had told Mr. Every of these acts .......... 3 B. The lower court improperly precluded another witness from providing evidence of a previous incident where the defendant had locked himself in his bedroom to protect himself from the decedent who the witness heard screaming at defendant.. .................. 7 POINT II. THE LOWER COURT'S ERRONEOUS JURY INSTRUCTION REGARDING WHETHER THE SHARED KITCHEN AREA OF THE DEFENDANT'S HOME WAS HIS DWELLING ALLOWED THE JURY TO IMPOSE A NON-EXISTENT DUTY TO RETREAT AND PERMITTED A CONVICTION ON LEGALLY AND UNCONSTITUTIONALLY INSUFFICIENT EVIDENCE .................................................... 9 POINT III. THE PROSECUTOR ENGAGED IN SUBSTANTIAL AND PERVASIVE MISCONDUCT AND THEREBY DEPRIVED MR. EVERY OF DUE PROCESS .................................. 12 CONCLUSION .......................................................... 14 1 TABLE OF AUTHORITIES Cases Page In re Victoria H, 37 AD3d 1047 [4th Dept 2007]. ............................................................................. 4 In re Y.K, 87 NY2d 430 [1996]. ......................................................................................................... 6 Lanzano v City of New York, 71 NY2d 208 [1987]. ........................................................................... 9 People v Ashwal, 39 NY2d 105 [1976]. ........................................................................................... 12 People v Bradley, 20 NY3d 128 [2012]. ............................................................................................. 4 People v Flowers, 178 AD2d 682 [3d Dept 1993]. ............................................................................ 4 People v Fore, 33 AD3d 932 [2d Dept 2006] ................................................................................. 4, 5 People v Greene, 72 AD3d 1279 [3d Dept 2010]. .............................................................................. 4 People v Hetherington, 229 AD2d 916 [4th Dept 1996]. ................................................................. 12 People v Miller, 39 NY2d 543 [1976]. ....................................................................................... 3, 6, 7 People v Molnar, 234 AD2d 988 [4th Dept 1996]. .................................................................. : ......... 4 People v Morgan, 99 AD3d 622 [1st Dept 2012]. .............................................................................. 6 People v Ross, 200 AD2d 853 [3d Dept 1994] ................................................................................... 4 People v Still, 26 AD3d 816 [4th Dept 2006]. .................................................................................... 4 People v Thomas, 111 AD3d 554 [1st Dept 2013] ............................................................................. 4 People v Thomas, 50 NY2d 467 [1980] .............................................................................................. 9 People v Torres,211 AD2d 509 [1st Dept 1995] ............................................................................... 4 Peoplev Woodard, 83 AD3d 1440 [4thDept2011] ........................................................................... 4 11 PRELIMINARY STATEMENT Following a jury trial, Douglas Every was convicted of Manslaughter in the First Degree for inflicting a single stab wound to Milton Jump's chest. The central issue at trial was whether Mr. Every's actions were justified, that is: whether Mr. Every reasonably believed that Mr. Jump- the man who, according to Mr. Every, shut off the power to prevent him from calling 911 after threatening and assaulting him off and on for several hours - was about to use deadly physical force against him. Critical to the resolution of that issue was the jury's knowledge of the law of justification, and the jury's ability to assess the circumstances facing Mr. Every from his point of view. Yet, the trial court prevented the defense from introducing evidence ofMr. Jump's specific prior acts of violence that Mr. Every knew about or were directed at him, the prosecutor inundated the jury with the notion that Mr. Every had a duty to retreat from his own home, and the trial court's jury instruction on justification implied that Mr. Every had a duty to retreat from his home if he did not have exclusive control over the area where the single stab wound was inflicted. These errors and others were raised on appeal in Appellant's opening brief. In response to Appellant's opening brief, the Respondent seeks to minimize the prejudice from the trial court's erroneous legal and evidentiary rulings, despite their direct bearing on Mr. Every's central defense- justification. Respondent's arguments in this regard, however, are inherently flawed and circular. Indeed, Respondent displays the flaws and the erroneous assumptions of its argument from the very beginning of its brief. At the outset, both in its Statement of Facts and in the first sentence of the first point of its brief, Respondent asserts, with no citation to the record or appendix, that Mr. Every raised at trial the "mutually exclusive" defense of extreme emotional disturbance, in addition to his justification defense 1 (Respondent's brief"RB" at 3, 10). This claim, however, is wholly unfaithful to the record. At trial, Mr. Every specifically disavowed the defense of extreme emotional disturbance and requested that the trial court not provide the jury instructions on this defense. And the trial court abided by his request (A 273). Justification was not merely a theory of defense, it was Mr. Every's central defense. Furthermore, not only did defense counsel request that the trial court not provide the jury instructions on extreme emotional disturbance, he requested that the lower court not provide the jury the lesser offense of Manslaughter in the First Degree on the theory of intentionally causing serious physical injury rather than death. The trial court did not abide by this request, however, and instructed the jury on first degree manslaughter on this theory over Mr. Every's objection (A 274). Indeed, as the record indisputably reveals, at trial Mr. Every was prepared to rely entirely on the defense of justification. 1 By miscasting the record and inventing an alternative, and purportedly contradictory, defense never raised by Mr. Every, Respondent attempts from the onset of its brief to dilute the magnitude and prejudice of the trial court's legal errors regarding justification. However, it cannot be said, based on these errors which went to the heart of Mr. Every's central defense, that the jury in this case rendered a fair and just verdict. The People's evidence tending to disprove the defense of justification was far from overwhelming, and there is a reasonable probability that the verdict would have been different absent these errors. Despite Respondent's flawed efforts to dismiss these errors as harmless, they are not, and Appellant respectfully urges this Court to grant the relief requested in its opening brief. 1 Mr. Every requested the lesser included offense of reckless manslaughter in the second degree, which requires no intentional conduct all, only in the event that the trial court charged manslaughter in the first degree over his objection (A 274). 2 POINT I. AT A TRIAL IN WHICH DEFENDANT ASSERTED THE DEFENSE OF JUSTIFICATION, THE LOWER COURT IMPROPERLY EXCLUDED EVIDENCE OF DECEDENT'S PRIOR THREATS OF VIOLENCE AGAINST A WITNESS AND DECEDENT'S PRIOR CONDUCT TOWARD DEFENDANT ANDIMPROPERLYLIMITEDEVIDENCEOFDECEDENT'SREPUTATION FOR VIOLENCE As Respondent acknowledges, "a defendant, asserting at trial justification as a defense, ought to be permitted to adduce evidence of violent acts of the victim and his knowledge thereof' if the "acts sought to be proved relate reasonably, in time and quality, to the defense raised by the defendant" (People v Miller, 39 NY2d 543 [1976]; see RB 10-11). Such evidence is critical to the jury's ability to assess the reasonableness of a defendant's belief, from the defendant's point of view. Yet, in this case the trial court prevented Mr. Every from introducing evidence of Mr. Jump's violent acts toward a defense witness, Brian Dill, of which Mr. Every had knowledge. Compounding this error, the lower court also precluded Mr. Every from introducing evidence from another witness, Kathy Petticrew, of Jump's recent violent acts toward Mr. Every himself. A. The lower court improperly precluded Mr. Every from introducing evidence of the decedent's specific acts of threats and aggression against a witness who had told Mr. Every of these acts Respondent argues that the lower court properly precluded Brian Dill from testifying that Mr. Jump had previously threatened him with a nail gun and a hammer, on separate occasions, and that he told Mr. Every about these threats because (1) when put on the spot in the chambers, Mr. Every could not identify the specific objects Mr. Jump used to threatened Mr. Dill, referring to them instead as "instruments," (2) there was nothing in the record that indicated these incidents went beyond general verbal aggression, and (3) the proffered testimony would have been cumulative since Mr. Dill was allowed to testify that Mr. Jump had a reputation for being verbally aggressive (see RB 1 0-12). These 3 arguments are unavailing. First, although Mr. Every could not identify the specific objects that Mr. Jump used to threaten Mr. Dill, he knew that Mr. Jump twice threatened Mr. Dill with "instruments." Whether Mr. Every knew the "instruments" were nail gun and a hammer but was simply unable to identify them when put on the spot, or whether he was entirely unable to recall the exact words of Mr. Dill's recounting of the threats with the instruments, is irrelevant. Courts have held a variety of objects to be dangerous "instruments" readily capable of inflicting death or serious physical injury (see e.g. People v Bradley 20 NY3d 128 [2012] [2 V2lb plastic snow shovel] ; People v Greene, 72 AD3d 1279 [3d Dept 2010] [red hot barbeque fork]; People v Ross, 200 AD2d 853 [3d Dept 1994] [tree limb]; People v Flowers, 178 AD2d 682 [3d Dept 1993] [broomstick handle]; People v Thomas, 111 AD3d 554 [1st Dept2013] [mens dress shoe]; People v Woodard, 83 AD3d 1440 [4th Dept 2011] [frayed electrical cord]; In re Victoria H, 37 AD3d 1047 [4th Dept 2007] [wooden shelf]; People v Still, 26 AD3d 816 [4th Dept 2006] [belt and hardcover book]; People v Molnar, 234 AD2d 988 [4th Dept 1996] [pen and pencil]; People v Torres, 211 AD2d 509 [1st Dept 1995] [toy baseball bat]). The fact that Mr. Every knew that Mr. Jump threatened to use some object as a weapon against Mr. Dill on two separate occasions was enough for those prior acts of violence to be admissible to establish both the defendant's requisite subjective belief and the reasonableness of that belief. This improperly precluded testimony is especially compelling because the confrontation between Mr. Every and Mr. Jump occurred in the kitchen area of the home which contained a multitude of"instruments," including knives. Unlike People v Fore, 33 AD3d 932 (2d Dept 2006), cited by Respondent, this is not a case where the defense sought to introduce testimony that the victim had a propensity for violence, even 4 though the defendant knew nothing of that propensity at the time ofthe incident. In Fore, the defendant presented a justification defense to the charge of murder in the second degree, and sought to introduce evidence that the victim had a "generally poor reputation" in the community, rather than a reputation for violence, and the "defendant presented no proof as to whether he was aware, at the time of the shooting, of the facts he sought to introduce" (id. at 932). In stark contrast, Mr. Every sought to introduce evidence that Mr. Jump threatened Mr. Dill on two recent occasions with dangerous "instruments" and that Mr. Dill told Mr. Every about those threats. Second, Respondent's assertion that "there was no indication in the record that the incident with the instruments went beyond verbal aggression" ignores the nature of a threat (see RB 11 ). Mr. Every did not seek to introduce testimony that Mr. Jump merely yelled obscenities and insults at Mr. Dill. Instead, Mr. Jump twice used "instruments" - a nail gun on one occasion, and a hammer on another- during a confrontation with Mr. Dill, clearly implying that he might use them to inflict, at minimum, harmful physical contact. The fact that Mr. Jump invoked the use of an "instrument" to threaten Mr. Dill unquestionably takes the incident outside the realm of mere generalized verbal aggression. Not only that, the trial court precluded this testimony because "Mr. Every wasn't familiar with the specifics of this- threat" (A 214-15), not because it concluded there was no threat. Finally, Respondent's argument that the testimony would have been cumulative since the defendant was allowed to introduce character evidence of Mr. Jump's reputation for being verbally aggressive and quarrelsome when he drank is equally unavailing. Because courts have consistently held that a person is not justified in using deadly physical force to avert mere verbal threats, it was critical to Mr. Every's ability to present a defense that he be permitted to show that he knew Mr. Jump to become physically aggressive, not merely verbally aggressive, when intoxicated. Indeed, the trial court 5 precluded any reference to Mr. Jump's reputation in the community for physical belligerence or violence while intoxicated (A 159), rendering the precluded testimony even more critical to Mr. Every's ability to present a defense. In an attempt to dismiss these errors as harmless, however, the Respondent asserts that Mr. Every was undisputedly the one who introduced deadly physical force into the quarrel because Mr. Jump was unarmed, and that, as the initial aggressor, he could not have been justified. This argument is circular. The issue of a defendant's knowledge of the decedent's threats toward third parties goes to the very issue of who is the initial aggressor (see Miller, 39 NY2d at 549). Furthermore, if the only reasonable view of the evidence was that Mr. Every was the initial aggressor, he would not have been entitled to a justification charge. Finally, the fact that Mr. Jump was unarmed does not by itself render Mr. Every's actions unjustified (see e.g. In re Y.K, 87 NY2d 430 [1996] [holding defendant who was being held down while being punched and kicked by group was justified in using deadly physical force]; People v Morgan, 99 AD3d 622 [1st Dept 2012] [holding defendant justified in stabbing boyfriend in cheek after being attacked because, "[a ]lthough the complainant only used his fists, defendant had reason to believe she was in danger of serious physical injury if she continued to allow him to beat her"]). In this case, where a single stab wound was inflicted in the kitchen area of the defendant's home and where justification was the central issue at trial, the trial court's preclusion of Mr. Dill's testimony regarding Mr. Jump's prior violent threats deprived Mr. Every of his right to present a defense, in violation of his state and federal constitutional rights to due process and a fair trial. 6 B. The lower court improperly precluded another witness from providing evidence of a previous incident where the defendant had locked himself in his bedroom to protect himself from the decedent who the witness heard screaming at defendant In arguing that the trial courtproperlyprecluded Kathy Petti crew, another defense witness, from testifying that, in the summer of2013, she received a telephone call from Mr. Every who had locked himself in his bedroom to protect himself from Mr. Jump, who she heard screaming at Mr. Every in the background, Respondent wholly ignores the ground on which the trial court precluded the testimony: hearsay (see Gov't brief at 12-13; A 155-56). Instead, Respondent makes the same argument as it did regarding Brian Dill's testimony, that is: the precluded testimony would have been cumulative because Ms. Petti crew was permitted to testify that Mr. Jump had a reputation in the community for being verbally aggressive when he drank. This argument wholly fails to address the hearsay ground upon which the trial court actually precluded the testimony. Indeed, by failing to provide any argument to this Court regarding the trial court's erroneous characterization of Ms. Petticrew's testimony as "hearsay," Respondent has abandoned that rationale as a basis of preclusion. And the alternative basis of preclusion offered by Respondent is unpersuasive. It is well established that evidence of threats made by a decedent against a defendant is admissible at trial because it bears on whether the deceased was the aggressor (Miller, 39 NY2d at 549). Attempting to show that the precluded evidence in this case was not governed by Miller, Respondent asserts that the jury did not need to hear Ms. Petticrew's testimony because there was no threat- only mere yelling. Respondent's assertion that there was no threat is untenable. Why would Mr. Every barricade himself in his own bedroom with Mr. Jump screaming outside the door if he did not feel threatened by Mr. Jump's aggression? Why would he call Ms. Petticrew to his home and then flee to her home for sanctuary unless he did not feel safe to remain in his own? 7 Indeed, evidence that Mr. Every recently locked himself in his room and called Ms. Petti crew to come pick him up because he was too scared of Mr. Jump to remain in his own home, not only bore on whether Mr. Jump was the aggressor, but on also Mr. Every's state of mind. Thus, the erroneously precluded testimony was admissible both as to whether Mr. Jump was the initial aggressor and to demonstrate the reasonableness of Mr. Every's use of deadly physical force when Mr. Jump lunged at him. And the ability to establish both ofthose bases of admissibility were critical to Mr. Every's ability to present the defense of justification. 8 POINT II. THE LOWER COURT'S ERRONEOUS JURY INSTRUCTION REGARDING WHETHER THE SHARED KITCHEN AREA OF THE DEFENDANT'S HOME WAS HIS DWELLING ALLOWED THE JURY TO IMPOSE A NON- EXISTENT DUTY TO RETREAT AND PERMITTED A CONVICTION ON LEGALLY AND UNCONSTITUTIONALLY INSUFFICIENT EVIDENCE Respondent first urges that the inadequacy of the trial court's jury instruction on justification is unpreserved, ignoring Appellant's argument that the preservation rule does not apply to this issue because the erroneous instruction relieved the People of their burden of disproving justification beyond a reasonable doubt (see People v Thomas, 50 NY2d 467, 472 [1980]). Indeed, it is the trial "[t]he court's obligation [ ] to instruct the jury on the applicable law and to help minimize erroneous speculation flowing from jurors applying their own general experience and sometimes erroneous knowledge in reaching ... their verdicts" (Lanzano v City of New York, 71 NY2d 208, 212 [1987]). "While there can be no guaranteed certainty or perfection, the trial courts, through careful, fair and explicit jury instruction, can minimize erroneous speculation" through explaining the appropriate law in the most accurate and clear way possible (id. ). Where clear instruction is easily achieved, an inaccurate charge should not be tolerated (id. at 211 ), even in the absence of an objection by defense counsel. A clear instruction would have been easily achieved in this case if the trial court did not read the misleading parenthetical notation in the pattern criminal jury instruction.:.... the reading of which compouri.ded the prejudice of the prosecutor's repeated improper injection of the notion that Mr. Every had a duty to retreat. When instructing the jury on the definition of dwelling, the trial court read a parenthetical notation that appears to be a guide for the trial court in deciding whether to instruct the jury on the duty to retreat, rather than an instruction to be read to the jury (see Appellant's Brief"AB" at 30 n 47): "The determination of whether a particular location is part of a Defendant's dwelling depends on the extent 9 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). The reading of the parenthetical language drew the jury to answer an irrelevant question as to the "extent" to which Mr. Every had exclusive possession or control over the kitchen area. The instructions, as read, inaccurately suggested to the jury that Mr. Every had a duty to retreat from the kitchen area of his home because it was an area shared with Mr. Jump and thereby unconstitutionally reduced the People's burden of disproving justification beyond a reasonable doubt. Respondent urges that the trial court's instruction on justification was proper and sufficient because (1) Mr. Every was the initial and only aggressor and therefore had a duty to retreat, and (2) the court read the pattern criminal jury instruction on the duty to retreat to the jury in its entirety. First, if the only reasonable view of the evidence was that Mr. Every was the initial and only aggressor, then he would not have been entitled to a jury instruction on the defense of justification. Indeed, in this close case involving a single stab wound, there was a compelling view of the evidence that Mr. Every was neither the initial nor the only aggressor. It was thus essential that the jurors receive clear and emphatic instructions that Mr. Every had no duty to retreat from his home independent of whether Mr. Jump also lived there, so long as he was not the initial aggressor. And this need was especially compelling in light of the prosecutor's prejudicial injection, throughout the course of trial, of the notion that Mr. Every had a duty to retreat. No such clear or emphatic instructions were given in this case to cure the prejudice of the prosecutor's misconduct in this regard, and there is no assurance that the jury's guilty verdict was not based on the misimpression that Mr. Every had a duty to retreat. Further, Respondent's assertion that the court properly instructed the jury simply because it read the criminal jury instruction in its entirety in no way responds to Appellant's argument that it was error for 10 the court to read the parenthetical notation regarding the definition of dwelling. Moreover, whether the jury was "confused" by this parenthetical language is of no merit. Respondent urges that "nothing in the record indicates the jury was confused by the word 'exclusive"' because "[t]he jury never asked for any clarification with regard to the definition of dwelling" (RB at 17). The fact that the jury may have been able to determine the extent to which Mr. Every had exclusive possession or control over the kitchen area with clarity makes the question no more relevant, nor any less prejudicial. If the jurors were to find that Mr. Every had no such exclusive possession, they could then erroneously find that the stabbing did not occur in Mr. Every's dwelling. And there is no assurance, in light of the prosecutor's injection of the notion Mr. Every had a duty to retreat, that the jury did not make that erroneous finding and base their guilty verdict upon it. As Respondent concedes, the single stab wound was undisputedly inflicted in Mr. Every's dwelling (RB at 17). Through the benefit oflegal education, Respondent's counsel knows that, Appellant's counsel knows that, and this Court knows that. It cannot be said, however, that the jurors knew that, because the jury's entire store of legal knowledge, including the legal definition of "dwelling," came from the trial judge's misleading instructions. The inclusion of this parenthetical language, regardless of whether the jury was "confused" by it, was thus devastating error. 11 POINT III. THE PROSECUTOR ENGAGED IN SUBSTANTIAL AND PERVASIVE MISCONDUCT AND THEREBY DEPRIVED MR. EVERY OF DUE PROCESS Respondent's argument that the prosecutor's purpose in questioning Investigators Nalepa and Moulton about whether Mr. Every had an opportunity to retreat was "not to impose a duty to retreat but to prove the element of 'intent"' is belied by the record (RB at 19). The prosecutor would have been within his broad latitude of comment if he had constrained his argument to asserting that Mr. Every's statement that he was not afraid of Mr. Jump when he walked back into the house after unsuccessfully trying to call 911 evidenced his intent (see RB at 19). However, neither the prosecutor's line of questioning nor his comments in summation were so constrained. The prosecutor did not merely ask Investigator Moulton to describe what the defendant said in his interview regarding the incident (indeed, the jury heard the defendant's recorded interview itself), the prosecutor deliberately and specifically drew the jury's attention to those questions of the interrogating investigators that pre-supposed Mr. Every had a duty to retreat, then argued in summation that Mr. Every's ability to retreat and failure to do so evidenced his guilt. Further, while it may be true that "the People's theory of the case was that the defendant was the initial aggressor," that did not give the prosecutor the latitude to imply that Mr. Every had a duty to retreat from his home when in fact he did not, regardless of whether Mr. Jump also lived at the house. Even though it is improper for a prosecutor to misstate the law and call upon the jury to draw legally impermissible conclusions (see People v Hetherington, 229 AD2d 916 [4th Dept 1996]; People v Ashwal, 39 NY2d 105 [1976]), the prosecutordidjustthatbyinjecting into the trial the notion that Mr. Every had a duty to retreat. 12 The prejudicial effect of this prosecutorial reliance on a non-existent duty to retreat from one's own home was exacerbated, rather than cured, by the trial court's instructions which implied that Mr. Every had a duty to retreat from his home if he did not have exclusive control over the area where the single stab wound was inflicted. The prosecutor's misconduct in this regard, as is true for the other errors raised in Appellant's opening brief, cannot be dismissed as harmless error. These errors went to the very heart of Mr. Every's justification defense- his central defense. In light of these errors, it cannot be said that the jury in this case rendered a fair and just verdict- as Mr. Every is constitutionally entitled to. 13 CONCLUSION For all the reasons set forth herein, and in Appellant's opening brief, it is respectfully urged that Mr. Every's judgment of conviction should be vacated, or alternatively reversed, or, in the further alternative, his sentence should be reduced, and this Court should issue an Order granting such further relief as this Court deems proper. Dated: August 3, 2016 Respectfully submitted, William T. Easton, Esq. Danielle C. Wild, Esq. Attorneys for Appellant 16 W. Main Street, Suite 243 Rochester, New York 14614 (585) 423-8290 14