The People, Respondent,v.Otis Boone, Appellant.BriefN.Y.October 17, 2017To be submitted NEW YORK STATE COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. OTIS BOONE, Defendant-Appellant. BRIEF FOR AMICUS CURIAE LEGAL AID BUREAU OF BUFFALO, INC; IN SUPPORT OF ARGUMENT BY DEFENDANT-APPELLANT On the Brief: Kristin M. Preve, Staff Attorney Timothy P. Ivlurphy, Chief Attorney Appeals and Post-Conviction Unit David C. Schopp, Chief Executive Officer Legal Aid Bureau of Buffalo, Inc. 290 Main Street, Suite 350 Buffalo, New York 14202 Phone: (716) 853-9555, ext. 679 Fax: (716) 853-3219 E-mail: tmurphy@legalaidbufialo.org Brief completed on December 19, 2016. TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................... 111 STATEMENT OF AMICUS CURIAE ............................................ l QUESTION PRESENTED ........................................................... 2 NATURE OF THE CASE AND BRIEF SUMMARY OF PERTINENT FACTS ............................................................ 3 SUMMARY OF ARGUMENT ...................................................... 5 ARGUMENT ........................................................................... 7 POINT I .................................................................................. 7 APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS (N.Y. CONST. ART. I, §6; U.S. CONST., AMENDS. VI AND XIV), BY THE TRIAL COURT ERRONEOUSLY DENYING TRIAL COUNSEL'S TIMELY AND SUFFICIENTLY SPECIFIC REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION. A. The Fundamental Constitutional Rights to Due Process and to Present a Defense of Third Party Culpability ......... 8 B. The Whalen and Knight Decisions are Consistent with Appellant's Requested Relief ....................................... 10 C. Evidentiary Basis for the Charge ..............................•... 13 D. Preservation ............................................................ 18 CONCLUSION .................................................................... ... 20 11 TABLE OF AUTHORITIES CASES Chambers v. Mississippi, 410 U.S. 284 (1973) ................................................ 8 Crane v. Kentucky, 476 U.S. 683 (1986) .......................................................... 8 Holmes v. South Carolina, 547 U.S. 319 (2006) .. ..... ....................................... 8 Payne v Tennessee, 501 US 808 (1991) .. ....................................................... 12 People v. Aiken, 4 NY3d 324 (2005) ............................................................. 15 People v Baranov, 121 AD3d 706 (2d Dep't 2014) ........................................ 14 People v. Boone, 129 A.D.3d 1099 (2d Dep't 2015) ........................................ 3 People v Cefaro, 23 NY2d 283 (1968) ..................................................... 14, 15 People v. DiPippo, 27 N.Y.3d 127 (2016) .................................................... 8, 9 People v. Knight, 87 N.Y.2d 873 (1995) .. ...... ... ..... ......... .................. ....... 10, 11 People v. Powell, 27 NY3d 523 (2016) ......................................................... 8-9 People v. Primo, 96 N.Y.2d 351 (2001) ........................................................... 9 People v Taylor, 9 NY3d 128 (2007) ............. ..... ....................................... 11-12 People v. Whalen, 59 N.Y.2d 273 (1983) ................................................. 10, 11 People v. Williams, 21 NY3d 932 (2013) ................................................. 14-15 Policano v Herbert, 7 NY3d 588 (2006) ...... ... ................. .................. ..... ..... ... 12 111 STATUTES C.P.L. 450.90 .................................................................................................... 4 C.P.L. 710.70 .................................................................................................. 14 P.L. §160.15 ...................................................................................................... 3 OTHER AUTHORITIES C.J.I.2d [NY] Credibility of Witnesses ....................... ........ ............................ 17 C.J.I.2d [NY] Identification- One Witness ................................. 12, 15, 16, 17 C.J.I.2d [NY] Statements [Admissions, Confessions] .................................... 14 Ryan, BryanS., "Alleviating Own-Race Bias in Cross-Racial Identifications," 8 Wash. U. Juris. Rev. 115 (2015) ................................................................ 6 CONSTITUTIONAL PROVISIONS N.Y. Const., Art. I, §6 ................................................................................... 2, 7 U.S. Const., Amend. VI ............................................................................ 2, 7, 8 U.S. Const., Amend. XIV ................................... ......... ............................. 2, 7, 8 lV STATEMENT OF AMICUS CURIAE The Legal Aid Bureau of Buffalo, Inc. ("Legal Aid") was founded in 1912 and staffs over sixty attorneys, representing a vast array of both criminal and civil indigent litigants throughout Western New York. The Appeals and Post-Conviction Unit of Legal Aid is the largest purely criminal appeals office in our state outside of New York City, representing indigent criminal appellants in the counties of Erie, Genesee, Cattaraugus and Orleans. Legal Aid regularly represents criminal appellants before the Appellate Division, Fourth Judicial Department, and has represented many appellants before this Court as well. Legal Aid has a distinct and significant interest in the proper development of criminal law in our state. 1 QUESTION PRESENTED This case addresses the important issue of whether criminal trial juries should be instructed on the frailties and dangers of cross-race identification, despite the absence of expert testimony or evidence beyond the existence of a cross-racial identification scenario during trial. Numerous constitutional rights, including due process, a fair trial and the right to present a defense, are implicated herein. See N.Y. Const., Art. I, §6; U.S. Const., Amends. VI, XIV. 2 NATURE OF CASE AND BRIEF SUMMARY OF THE PERTINENT FACTS This appeal is taken from an order of the Appellate Division, Second Judicial Department, entered June 24, 2015, which both modified appellant's sentence, and also affirmed the judgment of conviction by the Supreme Court, Kings County (Del Giudice, J.S.C.), entered on July 25, 2012. This judgment followed a jury trial. Therein, defendant-appellant ("appellant") defended against two counts of second-degree robbery (Penal Law ["P.L."] § 160.15 [3 ]), both of which upon he was convicted. Appellant's sentence (on July 25, 2012) of two consecutive prison terms of ten and fifteen years was reduced by the Second Department to five and ten years, respectively. The accusations stem from two brief Brooklyn street muggings occurring a week and a half apart in time. The People's primary evidence was premised on the brief cross-race identification of the two complainants. The Appellate Division herein otherwise affirmed Mr. Boone's judgment of conviction, finding that the trial court properly declined to charge the jury on the reliability of cross-racial identification, as the issue was not explicitly placed at issue at trial, and the charge provided was said to have properly conveyed applicable legal principles on credibility and identification testimony. See People v. Boone, 129 A.D.3d 1099 (2d Dep't 2015). 3 The Honorable Jenny Rivera, Associate Judge of this Court, granted appellant leave to appeal on December 22, 2016. The Appellate Advocates in Manhattan, by Lynn W.L. Fahey and Leila Hull, Esqs., represent appellant before this Court. The People of the State of New York are represented by Eric Gonzalez, Acting District Attorney of Kings County. The jurisdiction of this Court, pursuant to C.P.L. 450.90(1), is properly addressed in appellant's principal brief. 4 SUMMARY OF ARGUMENT Legal Aid will address the primary issue raised in appellant's brief: whether the trial court erred and violated appellant's state and federal constitutional rights by refusing to instruct the jury regarding the grave problems associated with cross-race identifications in criminal cases, particularly when the prosecution's proof relied on single-eyewitness testimony establishing only a brief window of opportunity within which to identify the perpetrator. Legal Aid agrees with appellant that the Appellate Division's determination affirming the judgment of conviction was erroneous. This appeal is one of great importance, as criminal defendants must not be foreclosed from being tried under the fair lens of a trier of fact instructed on judicially and scientifically accepted principles for cross-racial identification scenanos. It is difficult to ignore the fact that many wrongful convictions stem from mistaken cross-racial identifications. As the appellant noted in his principal brief filed in this Court (at page 22), one study found that approximately 42 percent of erroneous identification cases involve cross-race identifications. See also Appellant's Brief, pages 19-24 (regarding other 5 compelling misidentification data); see also Ryan, Bryan S., "Alleviating Own-Race Bias in Cross-Racial Identifications," 8 Wash. U. Juris. Rev. 115, 128, footnotes 65 and 66 (2015) (noting Innocence Project study finding that approximately half of 150 DNA-related eyewitness misidentifications involved cross-racial identifications). Along these lines, appellant's constitutional right to present a third- party culpability defense was also impeded by the trial court's denial of defense counsel's CJI cross-racial identification instruction request. Granting this request would also have been consistent with this Court's precedent. Moreover, criminal defendants should not be burdened with bringing forth what might be expensive and scarce expert testimony in order to benefit from appropriate jury instructions. The trial court's error here cannot be said to be harmless, as the cross- racial identification by the witnesses was critical to the jury's determination whether appellant was guilty of the robbery charges. 6 ARGUMENT POINT I APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS (N.Y. CONST. ART. I, §6; U.S. CONST., AMENDS. VI AND XIV) BY THE TRIAL COURT'S ERRONEOUS REFUSAL TO GRANT TRIAL COUNSEL'S TIMELY AND SUFFICIENTLY SPECIFIC REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION. The trial court committed reversible error in issuing a blanket denial of appellant's request for the CJI cross-racial identification instruction. Affirming appellant's judgment of conviction at bar would create a dangerous precedent. The trial court's decision here further violated appellant's right to due process and to present a third-party culpability defense, contravened this Court's precedent and unfairly burdened appellant with having to submit expert or other testimony in this regard. Finally, this issue was indeed preserved for this Court's review. 7 A. The Fundamental Constitutional Rights to Due Process and to Present a Defense of Third Party Culpability The denial of appellant's request for a cross-racial instruction impeded his ability to have the jury fully consider the basic premise for his defense, i.e., that a third party committed the crimes in question. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense."' Holmes v. South Carolina, 547 U.S. 319, 324 (2006), citing Crane v. Kentucky, 476 U.S. 683, 690 (1986); see also People v. DiPippo, 27 N.Y.3d 127, 135 (2016). In reversing the defendant's convictions in Chambers v. Mississippi, 410 U.S. 284, 289-291, 296 (1973), the Supreme Court proclaimed, "the right of an accused in a criminal trial to Due Process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers, 410 U.S. at 295; accord Crane, 476 U.S. at 690; Holmes, 547 U.S. at 324-326, 330. Indeed, this Court has recently recognized that "admission of third party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime." See People v. Powell, 27 NY3d 523, 532 (2016) (emphasis added) (noting further that even evidence of an 8 unknown third party's DNA may be admissible in pursuing a third party culpability defense). Declining to instruct the jurors on the core of appellant's third-party culpability defense, i.e., that another (unidentified) person of the same race as appellant actually committed the crimes in question, significantly impeded appellant's presentation of this defense to the jury. That appellant did not present witness testimony is of no moment. Not having a burden himself, appellant elected to pursue his third-party culpability defense solely through cross-examination of the People's witnesses (as well as through his opening statement and summation). Without question, appellant's defense was that while the crimes indeed occurred, another (unknown) party was responsible, and the requested instruction was essential for framing this defense for the jury under the unique circumstances at bar. While denial of the proposed instructions herein was not the mirror equivalent of precluding the admission of substantive third-party culpability evidence itself, the analogy is still apt. The basic standard for the receipt of third-party culpability evidence is whether the probative value of the proposed evidence outweighs the potential for delay, confusion, or prejudice to the prosecution. See DiPippo, 27 N.Y.3d at 135-136, citing People v. Primo, 96 N.Y.2d 351, 357 (2001). 9 To borrow this standard for a moment, the requested instruction involved an issue which could not possibly have been more probative in this case: the accuracy of the two complainants' cross-racial identifications. Given the highly probative nature of the instruction, its value far outweighed any risk of confusion or prejudice to the prosecution. Without the requested instruction, appellant was unfairly hampered in his ability to fully present a defense that someone else was the perpetrator of the instant robberies. B. The Whalen and Knight Decisions are Consistent with Appellant's Requested Relief Respondent claims that the Whalen and Knight decisions must be overruled in order to grant appellant relief herein (Respondent's brief, page 51). This is not true. Respondent cites to People v. Whalen, 59 N.Y.2d 273, 279 (1983), for the proposition that "[a] judge who gives a general instruction on weighing witness credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law. No cognizable prejudice accrues to any party." See also People v. Knight, 87 N.Y.2d 873, 876-877 (1995). Contrary to respondent's contention, this statement in Whalen by no means implies that a cross-racial identification instruction should never be 10 required. The serious problems underlying cross-racial identifications were simply not before the Whalen Court. Part of appellant's argument here is that a jury instruction that only provides an accurate statement of the general law of identification is, with regards to a cross-racial identification scenario, constitutionally deficient. While providing a jury with the general statement above does not in and of itself prejudice defendants, appellant's argument before this Court, under the circumstances, is still consistent with the above statement from Whalen. Furthermore, respondent acknowledges the Whalen Court's observation that "[t]he better practice is to grant a defendant's request and give the expanded [identification] charge." (Respondent's brief, page 51). As also noted by this Court in Whalen, "New York trial courts are encouraged to exercise their discretion by giving a more detailed identification charge when appropriate." Id. at 279. A cross-racial scenario, for the reasons set out in appellant's brief, is such an "appropriate" circumstance. But even if, as respondent contends, this Court would effectively have to overrule Whalen and Knight in order to reverse appellant's convictions in this case, there is a compelling reason to do so. Obviously, the policy of stare decisis serves an important role in promoting the "evenhanded, predicable, and consistent development of legal principles ... " (reople v Taylor, 9 NY3d 11 128, 148 [2007] [internal quotation marks omitted], quoting Payne v Tennessee, 501 US 808, 827 [1991]). On the other hand, though, a court should not mechanically adhere to its jurisprudence when such precedent, "once thought defensible, no longer serves the ends of justice or withstands 'the cold light of logic and experience"' (Policano v Herbert, 7 NY3d 588, 604 [2006] [internal quotation marks and citation omitted]). In light of the now consistent and plentiful scientific research indicating that cross-racial identifications are particularly unreliable, the delivery of an instruction on the jury's evaluation of such an event in an appropriate situation-a one-witness cross-racial identification case, with no additional corroborating evidence-would seem to be essential to serve the ends of justice. After all, the CJI instruction on cross-racial identifications tells the jurors only that they may consider whether the difference in race between the defendant and the eyewitness affected the accuracy of the eyewitness's identification. See C.J.I.2d [NY] Identification- One Witness, revised 2011, page 3. It is not a command to acquit, but rather an efficient means of providing jurors with a tool that fairness dictates they have available to evaluate cross-racial identifications. 12 C. Evidentiary Basis for the Charge As evidenced by the pre-charge conference at bar, it was not disputed that the jury observed cross-racial identifications in court. The trial court, however, denied defense counsel's request for a cross-racial identification charge because there "was no evidence before [the] jury regarding ... a lack of reliability of cross-racial identification. There was no cross-examination as to that" (Appellant's Brief, page 14; Appendix, pages 249-250). In other words, the court reasoned that, in order for the jury to consider whether a cross-racial identification is unreliable, explicit trial testimony concerning the cross-racial effect must first be introduced. Yet identification was the only real issue at trial, and the defense, through cross-examination, clearly contested, rather than conceded, the accuracy of the two Caucasian complainants' identifications of the African- American appellant. Consequently, the defense created a factual issue concerning the validity of the complainants' cross-racial identifications of appellant and, therefore, created a factual basis for the requested instruction. Respondent argues that the existence of obvious, undisputedly cross- racial identifications in this case was not enough to warrant the delivery of an instruction to the jury on its evaluation of said identifications. According to 13 the prosecutor, there was an insufficient factual basis for the charge because there was neither expert testimony on the cross-race effect nor cross- examination of the complainants concerning their histories of contact with black people or their difficulties in making cross-racial identifications (Respondent's brief, pages 52 and 53, n.19). Review of other standard CJI instructions, though, undermines respondent's position. For example, in order to submit the issue of the voluntariness of a defendant's statements to the jury, the evidence need establish only that a statement was elicited by law enforcement and that there is some factual dispute concerning its voluntariness (see CJI2d [NY] Statements [Admissions, Confessions], revised 2015, pg. 1; CPL 710.70[3]). Moreover, this evidence, this factual question, can be "adduced either by direct or cross-examination" (People v Baranov, 121 AD3d 706, 707 [2d Dept 2014], quoting People v Cefaro, 23 NY2d 283, 288-289 [1968]). In the case at bar, of course, defense counsel's cross-examination of the complainants concerning the accuracy of their cross-racial identifications was more than adequate to create a factual issue concerning the validity of the identifications. For this reason, respondent's citation (at page 54 of its brief) to case law addressing the evidence required for submitting particular instructions to the jury is misplaced. See, e.g., People v. Williams, 21 NY3d 14 932, 934 (2013) (defendant not entitled to charge on agency defense when no reasonable view existed that defendant acted as mere instrumentality of buyer; defendant had no relationship whatsoever with buyers, was acting as part of drug sales team and had 37 $20 bills upon his arrest, minutes after buy); People v. Aiken, 4 NY3d 324, 329-330 (2005) (no entitlement to justification charge when fatal confrontation occurred at defendant's hall doorway rather than inside his apartment). At bar, unlike Williams and Aiken, for instance, there was abundant evidence to support the cross-race identification instruction, in that there were in fact obvious and undisputed cross-race identifications made in court, and the defense contested the accuracy of those identifications. There was no "factual vacuum" in which the jurors would have been forced to decide an issue "without evidentiary basis whatsoever" (eefaro, 23 NY2d at 288). The en itself indicates that the cross-racial instruction should be utilized "if placed in issue by the evidence." See again en2d [NY] Identification- One Witness, supra at page 3. Respondent further opines that there was an insufficient basis for the requested charge because there was no testimony concerning the complainants' prior contacts with black individuals. In its brief, the prosecution argues that the requested en cross-racial charge "conveys that 15 evidence regarding a particular witness's history of contacts with members of the defendant's race is necessary for determining whether the cross-race effect might have impeded the witness's ability to identify the perpetrator ... " (Respondent's brief, page 52) (emphasis added). In reality, though, the CJI cross-racial instruction neither states nor implies that evidence of a witness's prior contact is required before the jury can consider the cross-race effect. To begin with, the instruction in question is merely permissive, indicating that a jury "may consider the nature and extent of the witness's contacts with members of the defendant's race and whether such contact, or lack thereof, affected the accuracy of the witness's identification" (See again, CJI2d [NY] Identification - One Witness, supra at page 3) (emphasis added). The instruction in dispute also goes on to note that the jury should consider other types of relevant factors surrounding the particular case, as well. Id. at pages 3 and 4. Interpreted fairly and reasonably, this language does not indicate that evidence of prior contacts is a prerequisite to the jurors' consideration of the cross-race effect. Rather, it conveys only that evidence of a witness's prior contact (or lack of prior contact) with members of the defendant's race is yet another possible factor for the jury's consideration. 16 Respondent's argument also overlooks the fact that other standard jury charges suggest many factors for the jurors' consideration, even when no evidence concerning those factors is introduced at trial. That is, the en charge on general credibility sets forth several factors that the jurors may wish to consider in determining issues of credibility, including, "To what extent, if any, did the witness's background, training, education, or experience affect the believability of that witness's testimony?" See Cn2d [NY] Credibility of Witnesses, page 2 (under general factors). On the general question of identification, the en charge suggests several possible factors, including, "What was the mental, physical, and emotional state of the witness before, during, and after the observation? To what extent, if any, did that condition affect the witness's ability to observe and accurately remember the perpetrator?" See Cn2d [NY] Identification - One Witness, supra at page 3. Whether there was evidence introduced concemmg each possible factor or not, both the general credibility and the basic identification charges, each containing an amalgamation of factors, are delivered every day throughout the courtrooms of this state. If no evidence is presented on a possible factor such as, for example, the witness's "background, training, education, or experience," though, is the entire credibility charge thereby 17 rendered meaningless? If no evidence is presented with respect to the "mental, physical, and emotional state of the witness," is the entire identification charge now useless, and does it invite the jurors to engage in improper speculation? The answer, of course, is no, because the jurors are presumed to consider only factors for which evidence is presented at trial. In cases where no evidence is presented with respect to a particular factor, the jury simply does not consider that factor. The same should hold true with the en cross- racial instruction; the absence of evidence of the complainants' prior contacts with members of a defendant's race-just one more factor for the jury's consideration-is in no way fatal to the validity of this request to charge. D. Preservation Finally, this important issue is preserved. Indeed, a superior court judge must be charged with knowing of a published en for cross-race identification, analogous to the well-known voluntariness charge, which is rarely requested of trial courts with specific citation. No more specificity was required here, as the en in question became effective in January of 2011, almost a year and a half before the trial proceedings at bar. This Court should 18 not be impeded from addressing an Issue of such monumental importance under these circumstances. 19 CONCLUSION WHEREFORE, Amicus Curiae, Legal Aid, respectfully requests that this Court: ( 1) find that defendant-appellant's constitutional right to due process was violated by the trial court's erroneous denial of appellant's request for a jury instruction regarding the dangers of cross-race identification; and (2) grant such other and further relief as this Court deems just and proper. Dated: Buffalo, New York December 19, 2016 Respectfully submitted, Legal Aid Bureau of Buffalo, Inc. Amicus Curiae On the Brief' ~~ -- Kristin M. Preve, Staff Attorney Timothy P. Murphy, Chief Attorney Appeals and Post-Conviction Unit 20 CERTIFICATE OF COMPLIANCE Court Rule 500.13(c)(l) The foregoing brief was prepared on a computer. A monspaced typeface was used, follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings, footnote and table of contents, and exclusive of pages containing the proof of service, and certification of compliance, is 3,701. Timothy P. Murphy, Esq. Appeals and Post-Conviction Unit Legal Aid Bureau of Buffalo, Inc.