The People, Appellant,v.Jamell R. McCullough, Respondent.BriefN.Y.May 31, 2016Brief Completed: August 7, 2015 To Be Argued By: Geoffrey Kaeuper Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant -vs- JAMELL R. MCCULLOUGH, Defendant-Respondent. BRIEF FOR APPELLANT SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585)753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I POINT II CONCLUSION The trial court did not abuse its discretion in denying defendant's request to present an expert witness on the issue of eyewitness identifications. Even if the court had abuse its discretion in denying defendant's request, the proper remedy would have been to remit the matter to the trial court for a F1ye hearing. 11 1 2 3 11 17 19 TABLE OF AUTHORITIES FEDERAL CASES Frye v Uniled States, 293 F 1013 (DC Cir 1923) ..................... . . .. ........ ... 17 STATE CASES Mitchellv Brown, 43 AD 3d I 009 (2d Dept 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Abney, 13 NY3d 251 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Drake, 7 NY3d 28 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 People v Lee, 96 NY2d 157 (200 I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II People v LeGrand, 8 NY3d 449 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 1 5, 16, 1 8 People v Molwmmad, 17 NY3d 532 (2011) . ... .. ..... . .......... . ................. 13 People v Oddone, 22 NY3d 369 (2013) ... ... ... ....... ....... ............... 9, 12, 18 People v Rorahack, 24 7 AD2d 64 7 (3d Dept 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 People v Santiago, 17 NY3d 661 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 17 People v Young, 7 NY3d 40 (2008) 761 F Supp 2d 59 (WDNY 2011 ), afld 715 F3d 79 (2d Cir 2013), cerl denied _ US_ , 134 SCt 20, 187 LEd 2d 409 (2013) ............ 14, 15 Styles v General A1otors C01poralion, 20 AD 3d 338 (1st Dept 2005) . . . . . . . . . . . . . . . . . . . . 18 STATUTES Penal La\V § II 0.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law § 125.25 [3] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Penal Law§ 160.15[4] ............... . .......................................... 2 -ii- I. Question: Answer of the Trial Court: Answer of the QUESTIONS PRESENTED Was the trial court required to permit testimony of an expert witness on the subject of the reliability of eyewitness identifications by crime victims? No. The court found that there was sufficient corroboration of the eyewitness's identification to preclude the expert's testimony. Appellate Division: Yes. A three-Judge majority at the Appellate Division found that the trial court abused its discretion as a matter of law in precluding the expert's testimony. 2. Question: Answer of the Trial Court: Answer of the Was the court required to conduct a F1ye hearing before allowing testimony from the defense expert as to the reliability of eyewitness identifications? The trial court did not decide the F1ye issue because the court found that defendant was not entitled to present the expert testimony in any event. Appellate Division: No. A three-Judge majority at the Appellate Division assumed that the proposed testimony was generally accepted in the scientific community and remitted for a new trial. 1 PRELIMINARY STATEMENT Defendant Jamell R. McCullough was convicted, upon a jury verdict, entered on September 22, 201 0, of murder in the second degree (Penal Law § 125.25 [3]), robbery in the first degree(§ 160.15 [4]), and attempted robbery in the first degree(§§ 110.00 & 160.15 [4]) in Supreme Court, Monroe County (Hon. Joseph D. Valentino, J.) (Appendix [hereinafter "A"] 8). Defendant was sentenced on November 3, 2010, to an aggregate term of incarceration of25 years to life. There has been no stay of the sentence and defendant is currently in custody (http://nysdoccslookup.doccs.ny.gov [DIN: 1 0-B-3360]). Co-defendants Kevin Harvey and Willie Harvey were charged in a separate indictment with murder in the second degree(§ 125.25 [3]), robbery in the first degree(§ 160.15 [4]), and attempted robbery in the first degree(§§ 110.00 & 160.15 [4]). Kevin Harvey was convicted as charged by a jury verdict rendered on April 2, 2010, and was thereafter sentenced to an aggregate term of imprisonment of 25 years to life. He filed a notice of appeal but has not yet perfected his direct appeal. Willie Harvey pleaded guilty to robbery in the first degree in full satisfaction of the indictment and was sentenced to I 0 years of incarceration. He did not appeal his conviction. 2 STATEMENT OF FACTS A Monroe County Grand Jury indicted defendant on charges of murder in the second degree, robbery in the first degree, and attempted robbery in the first degree (A 9-1 0). The indictment alleged that, on December 27, 2008, acting alone or in concert with others, defendant robbed Vincent Dotson and attempted to rob James Johnson, Jr. The indictment further alleged that, in the course of those crimes, one ofthe participants displayed a firearm and caused the death of Dotson. Defendant pleaded not guilty and, after a pre-trial hearing that is not in issue on appeal, the case proceeded to jury trial. Jury Trial On the night of December 27, 2008, Vincent Dotson was shot three times in the chest and abdomen inside Vinny's barbershop on Dewey Avenue in the City of Rochester (A 373-374, 379). Those gunshot wounds caused Dotson's death (A 396). When police arrived at the scene, they found James Johnson Jr. inside the barbershop and Dotson evidently deceased (A 462-463, 484-485). Johnson testified that he had gone to the barbershop for a haircut and Vinny and someone he knew as "City" were there (A 185-186). At some point, City left (A 186-187). Vinny then asked Johnson to go to the store next door, Phat Boys, which he did (A 187-188). As Johnson returned to the barbershop, he saw a white 3 Malibu with a hub-cap missing pull up to the comer (A 189). A man got out and asked Johnson if they were still doing haircuts in the barbershop, to which Johnson responded that the man would have to ask Vinny (A 190). The man then followed Johnson into the barbershop and asked for a haircut (A 191 ). As Vinny prepared for the haircut, the man's cell phone rang twice and he had a two brief conversations (A 193, 197). Shortly after the second call, three more men entered the barbershop: the first a dark-skinned man in a dark coat and black beanie, the second a dark- skinned man, and the third a taller, light-skinned man in an orange coat and matching orange hat (A 198-199, 33 7). Johnson identified defendant in court as the man in orange (A 231 ). The lights were on in the barbershop, Johnson observed defendant's face, and defendant looked directly at Johnson (A 339-340). The first of the new entrants asked, "where's the bud at," in reference to marihuana (A 199). Defendant closed and tried to lock the door, and the man who had been in the barber-seat also pulled out a gun (A 200, 203). One of the men then put a gun to Johnson's head and forced him and Vinny to get on the floor (A 20 I -203). The men "started, like, going through cabinets and they were asking questions" (A 203). They asked about a safe, about marihuana, and about money, and the first of the three men pistol whipped Johnson and Vinny (A 204-206). 4 After the men took $200 from Vinny's pocket, the man who had been in the chair then said to turn Vinny over (A 208-210). The first ofthe three men then shot Vinny in the chest twice (A 211 ). The men ran out, but the shooter returned moments later (A 212). Johnson heard a clicking sound above his head and then heard the man leave again (A 213). Johnson closed and locked the door and then called 91 I (A 213). Jeffrey "City" Melton testified that he was at Vinny's barbershop on the night of December 27, 2008, until he left to catch a bus that came at 9:20P.M. (A 404-405, 451 ). At that point, Vinny and Johnson were the only people in the barbershop (A 406). As Melton was leaving, he saw someone else enter (A 407- 408). He also saw a white Malibu with a hub-cap missing park and saw three men get out and go behind Phat Boys (A 408-409, 412, 422). After two or three minutes, they came out from behind the store and entered Vinny's (A 413). Melton heard three gunshots and then saw four or five men run to the Malibu, which then drove off (A 415). A short while later, when police located a car matching the description and attempted to pull it over, it sped up and turned down a side street (A 22-23). The car stopped and the driver and two passengers got out and ran (A 25-26). Police apprehended the driver, Willie Harvey, but the two passengers escaped (A 28). 5 Willie Harvey was thereafter charged in connection with the robbery and murder. He testified at defendant's trial that he pleaded guilty to robbery in the first degree, with a sentence promise of I 0 years (A 639). He was not required to identify defendant as a participant as part of his plea deal (A 699). He recounted that, on the evening of December 27, 2008, his brother, Kevin Harvey, picked him up in a white Malibu (A 642). After dropping off Kevin's girlfriend, they went to Judson Terrace to pick up their cousin Rashad Harvey (A 642-643). Rashad got into a dark gray Volkswagen with two other men, one of whom was defendant (A 645, 658-659). Harvey testified that the two cars then drove to Dewey Avenue and Flower City Park, where Kevin got out and asked Willie to park (A 645-646). Kevin then approached Rashad and the two other men, and they all walked around the corner onto Dewey Avenue (A 647). At some point, they all returned, with Kevin and Rashad getting into the Malibu and the other two men getting into the Volkswagen (A 648-649). Willie drove them back to Judson Terrace, where they met up with the two men in the Volkswagen, and they put marihuana and guns on the hood of the Malibu (A 649-650). Willie later left with Kevin and Rashad and a police car tried to pull them over (A 651-652). They got out of the car and ran, but Willie was caught (A 651-653). 6 Identification procedures On January 15, 2009, Investigator David Salvatore showed Johnson a photographic array and Johnson selected defendant's photograph as depicting one ofthe individuals involved in the robbery (A 635). On March 19, 2009, Johnson picked defendant out of a corporeal line up as being the last of the three men who entered the barbershop, and who tried to lock the door (A 230, 582-583). On February 4, 2009, Melton and Johnson separately viewed physical lineups and identified Kevin Harvey as having been a participant in the robbery. (A 576). Defendant's Proposed Expert Witness On the eve of trial, the defense moved for permission to present an expert witness to testify as to the reliability of eyewitness identifications by crime victims. After extensive argument of the issue (A 94-131 }, the trial court took a recess before deciding the issue. The court noted that it had heard the testimony of the witnesses at the trial of a co-defendant and that, if Johnson and Willie Harvey testified as they had previously, there would be sufficient corroboration to preclude the expert's testimony (A 133-134). The court, therefore, preliminarily denied the motion but granted the defense leave to reargue the issue at the close of the People's proof(A 134). 7 After the People rested, the court invited further discussion of the issue of expert testimony. The court adhered to its decision that the corroboration was such that the proposed expert testimony was not needed (A 827-828). Verdict and Sentencing The jury found defendant guilty as charged (A 995). Thereafter, the court sentenced defendant to an indeterminate term of incarceration of 25 years to life for murder, a determinate term of 25 years with 5 years of post-release supervision for robbery, and a determinate term of 15 years with 5 years of post-release supervision for attempted robbery (A 8). Those sentences all run concurrently. The Memoranda at the Appellate Division A three-Justice majority at the Appellate Division concluded that the trial court abused its discretion in determining that there was sufficient corroboration of Johnson's identification of defendant to warrant preclusion of the proposed expert testimony. The majority found that "there was little or no corroborating evidence connecting [defendant] to the crime" (A 3). They found that evidence of Johnson's opportunity to observe defendant was not corroboration of his identification and that, because Willie Harvey was of"dubious credibility," his separate identification of defendant did not sufficiently corroborate Johnson' s identification (A 3-4). 8 The majority further found that the general requirements for admissibility of expert testimony were satisfied in that the proposed testimony was relevant to the eyewitness identifications, was based on principles that are generally accepted in the scientific community, the proposed witness qualifies as an expert in the field, and the proposed testimony is beyond the ken of the average juror (A 4). As to acceptance in the scientific community specifically, the majority assumed the requirement was satisfied because the trial court did not grant a F1ye hearing (A 4, quoting People v Oddone, 22 NY3d 369, 379 [2013]). The two dissenting Justices found that "the reliable testimony of the accomplice" sufficiently corroborated Johnson's identification of defendant such that preclusion of the proposed expert testimony was a proper exercise of discretion even without reference to the general requirements for admissibility of expert testimony (A 5). The dissenters noted that Johnson had ample opportunity to observe defendant in the well-lit barbershop without obstructions (A 5-6). Willie Harvey also had ample opportunity to observe defendant, and the dissenters concluded that the trial court was Hin the best position to determine whether the testimony with respect to Harvey's ability to identify defendant was sufficient to establish the reliability of that identification, and thus to constitute sufficient corroborating evidence of the eyewitness identification" (A 7). 9 The dissenters further disagreed with the majority as to the F1ye question. They explained that, contrary to the majority's reading of the record, the trial court did not deny a F1ye hearing on the ground that the Frye standard was satisfied but rather "because it determined that the expert testimony was 'not needed' "(A 5). And they disagreed that "testimony regarding the impact of 'event violence,' 'event duration,' and 'weapon focus' on the reliability of eyewitness identification is generally accepted in the scientific community" (A 5). Thereafter, one of the dissenters, Presiding Justice Henry J. Scudder, granted the People leave to appeal to this Court. to POINT I The trial court did not abuse its discretion in denying defendant's request to present an expert witness on the issue of eyewitness identifications. The trial court did not abuse its discretion in denying defendant's eve-of- trial request to present an expert witness on the issue of eyewitness identification. The trial court had already presided over the trial of a co-defendant and so had heard the testimony of the accomplice, Willie Harvey, that corroborated the identification by Johnson. Nevertheless, the court invited the defense to re-raise the issue after the People had concluded their proof. After hearing all the People's proof, the court determined that Johnson's eyewitness identification had sufficient corroboration that defendant's proposed expert should be precluded. That determination was consistent with this Court's precedents. Beginning with People v Lee (96 NY2d 15 7 [200 1 ]), this Court has held that expert testimony as to the reliability of eyewitness identifications is "not inadmissible per se" but whether to allow such testimony generally "rests in the sound discretion of the trial court" (id. at 160). In exercising that discretion, the trial court must carefully balance competing interests. On the one hand, " 'courts are encouraged .. . in appropriate cases' to grant defendant's motion to admit expert testimony on this subject" (People v Santiago, 17 NY3d 661, 669 (20 II], ] 1 quoting People v Drake, 7 NY3d 28, 31 [2006]). On the other hand, such testimony "must be approached with caution" because, unless the case turns on an uncorroborated identification, "expert testimony about the collateral issue of eyewitness reliability can be a harmful distraction" (People v Oddone, 22 NY3d 369, 379 [2013]). Determining whether a case is "appropriate" for expert testimony on the reliability of eyewitness identifications requires a "a two-stage inquiry" (Santiago, 17 NY3d 669). The court first must determine "whether the case 'turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime'" (id., quoting People v LeGrand, 8 NY3d 449, 452 [2007]). Only if that test is satisfied must the court proceed to the second stage of the inquiry, in which the court considers four factors: whether the testimony is "(1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror" (Santiago, 17 NY3d at 669, quoting LeGrand, 8 NY3d at 452). The trial court here never reached that second stage of inquiry because, given the testimony of Willie Harvey, this was not a case with "littler or no corroborating evidence" for Johnson's identification of defendant. 12 Like Johnson, Willie Harvey identified defendant in court as one of the participants in the robbery/murder. As the getaway driver, however, he saw defendant before and after the crime: when they first met at the Judson Street residence, when the group reassembled in front of the barbershop, when defendant and the others fled the barbershop, and again at the Judson Street residence when they divided the proceeds (A 644-650). Thus, the proposed expert testimony as to event violence, event duration, and weapon focus would have had no bearing on the jury's assessment of Harvey's reliability (cf People v Mohammad, 17 NY3d 532, 546 [2011] [that defense characterized victim's identification as lie rather challenging his ability to observe and recall "further remov(ed) the scope of the proposed expert testimony from the issues presented to the jury"]). The proposed expert testimony related to Johnson's identification only, which was corroborated by Harvey. Under the LeGrand standard, the trial court acted within the bounds of its discretion in precluding that testimony at the first stage of the inquiry. In People v Allen, which was decided with People v Abney (13 NY3d 251 [2009]), this Court found sufficient corroboration of one eyewitness's testimony because, "[c]ritically, [another witness] independently identified defendant as the knife-wielding robber who searched him and stood nearby throughout the course of the robbery" (id. at 269). This Court found even weaker corroboration 13 sufficient in People v Young (7 NY3d 40 [2008], habeas granted on other grounds 761 F Supp 2d 59 [WDNY 2011], affd 715 F3d 79 [2d Cir 2013], cert denied _ US _ , 134 SCt 20, 187 LEd 2d 409 [2013]). In Young, the home-invasion- robbery victim's identification was sufficiently corroborated because "stolen property was found in possession of two of defendant' s acquaintances; neither of them could have been the robber ... ; and one of them pointed to defendant as the person from whom she got the property" (id. at 46). The con·oboration provided here by Willie Harvey is like the critical evidence in Allen, and is distinctly stronger than the evidence that sufficed in Young. Moreover, the circumstances of Johnson's encounter made his identification inherently more unlikely to be mistaken than did the circumstances of the home invasion in Young. In Young, the victim had limited opportunity to observe the perpetrator, who was "concealing most of his body under a blanket and wearing a scarf over the lower part of his face" (id. at 42). She "saw only part of his face and retained a 'mental image' only of his eyes (id.). And Young involved a cross- racial identification (id. ). Here, Johnson observed defendant in a well-lit barbershop, with nothing obstructing his view. He testified in particular that defendant "looked at [him] before he turned to lock the door" at a distance of eight or nine feet (A 340). This 14 was an intra-racial identification. Weapon focus was less relevant because Johnson had served in the Army and was, therefore, familiar with fireanns (A 303). And Johnson identified defendant from a photographic array within 19 days of the murder and in a corporeal line-up approximately two months later (A 105, 229-230). Thus, not only was the corroborating evidence here stronger than in Young, but the proposed expert testimony had significantly less relevance to the case. Comparison with Young also demonstrates that the corroboration provided by Willie Harvey cannot simply be rejected, as it was by the majority at the Appellate Division, on the ground that he had "dubious credibility" (A 4). The defendant's acquaintances in Young were not witnesses of unimpeachable credibility, and they too may have had motives to lie in relation to their possession of stolen property. That did not make the court's decision an abuse of discretion and did not factor in the analysis. The issue is whether there was "little or no corroborating evidence." Whether it might also be possible for the defense to counter that corroborative evidence in other ways is a separate question that is not part of the LeGrand inquiry. The trial court was, in any event, in the best position to evaluate the credibility of the evidence. It determined that, in light of the corroborating 15 evidence provided by Willie Harvey, the proposed expert testimony would be an unnecessary distraction. That cannot have been an abuse of discretion under LeGrand. This case may be in that category where the trial court "might well have admitted" the testimony but nevertheless "the trial court's ruling was within the bounds of its discretion" (Young, 7 NY3d at 44). But this is not a case with "little or no corroborating evidence." Accordingly, the Appellate Division erred in reversing the judgment of conviction. 16 POINT II Even if the court had abused its discretion in denying defendant's request, the proper remedy would have been to remit the matter to the trial court for a Frye hearing. Even if the court had abused its discretion in denying defendant's request, the proper remedy would have been to remit the matter to the trial court for a hearing pursuant to F1ye v United States (293 F 10 13 [DC Cir 1923 ]). As discussed in Point I, supra, defendant had to satisfy a two-stage test in order to be entitled to present expert testimony on the reliability of eyewitness identifications. The court here precluded the testimony based upon defendant's failure to satisfy the first stage of the test, and never made a determination as to the second stage. That is the appropriate procedure: "If ... sufficient evidence corroborates an eyewitness's identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of the analysis, because testimony concerning eyewitness identifications is unnecessary" (People v Santiago, 1 7 NY 3d 661, 669 [20 11] [citation omitted]). If a trial court is later reversed on that first stage issue, that does not relieve defendant of the need to satisfy the second stage before the testimony can be admitted at any retrial. The issues about which the expert here would have testified have all been specifically identified by this Court as issues for which it might be necessary to 17 conduct a F1ye hearing before deciding admissibility: "the effect of event stress, exposure time, event violence and weapon focus" (People v Abney, 13 NY3d 251, 268 [2009]). Nevertheless, citing People v Oddone (22 NY3d 369 [20 11 ]), the majority at the Appellate Division assumed general acceptance in the scientific community and granted a new trial. But this Court did not say in Oddone that if a trial court decides the issue of admissibility under the first stage of LeGrand, that precludes any consideration of the second stage of LeGrand in the event that the trial court is later determined to have erred. The F1ye issue, therefore, remains. If, after a Frye hearing, the proposed testimony were found admissible, then defendant would receive a new trial. But if the proposed testimony were still found inadmissible, the judgment of conviction should stand. The People preserved the issue by requesting a hearing in the alternative, if the court found that defendant satisfied the first stage of LeGrand. And a post-trial FIJ'e hearing is a well-recognized procedure (see e.g. Mitchell v Brown, 43 AD3d 1009, 1010 [2d Dept 2007]; Styles v General Motors C01p., 20 AD3d 338,340 [1st Dept 2005]; People v Roraback, 247 AD2d 647 [3d Dept 1998]). Thus, if the Appellate Division did not err as to the first stage of LeGrand, the matter should have been remitted for a determination as to the second stage before any reversal of the judgment of conviction. 18 CONCLUSION The memorandum and order of the Appellate Division should be reversed and the judgment of conviction should be affirmed. Dated: August 7, 2015 19 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Assistant District ttorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- JAMELL R. MCCULLOUGH, Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Cynthia A. Bellucco, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. 1 That on the 7TH day of August, 2015, deponent served three (3) copies of the Brief For Appellant and Appendix, upon Brian Shiffrin, Esq., attorney for Respondent in this action, at Easton, Thompson, Kasperek, Shiffrin, 16 West Main Street, Suite 243, Rochester, New York 14614, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, under the exclusive care and custody of Federal Express. Sworn to before me this 7th day of Au t, 2015. G!~ R.CA·i.I'Mt'.f?O Not,1rv Pub:~ ~. S!Jtc of 1-'~1 Yo:' M