The People, Respondent,v.Everett M. Durant, Appellant.BriefN.Y.October 20, 2015 To Be Argued By: Janet C. Somes Time Requested: 10 Minutes APL-2014-00121 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- EVERETT M. DURANT, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANET C. SOMES Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4329 Fax: (585) 753-4234 Date Completed: September 24, 2014 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i-v PRELIMINARY STATEMENT 1 QUESTION PRESENTED 2 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 8 POINT ONE: The Trial Court’s Refusal To Give An Adverse Inference Instruction Regarding Investigator Powell’s Failure To Record Mr. Durant’s Custodial Interrogation Is Reversible Error. 10 A. Introduction 10 B. The Police Created Key Prosecution Evidence When They Interrogated Mr. Durant And Had It Within Their Power To Produce An Objective, Indisputable Record Of That Evidence. 16 C. When A Party Is In A Position To Produce Material Evidence In Support Of Its Case, But Fails To, The Opposing Party Is Entitled To An Adverse Inference Instruction. 21 D. Because Police Had The Power To Produce An Objective, Indisputable Record Of The Interrogation In Support Of Investigator Powell’s Testimony, The Foundation For An Adverse Inference Instruction Was Established. 30 E. Requiring An Adverse Inference Instruction Under The Circumstances Of This Case Does Not Place A Constitutionally Based Duty Upon Police, Just As An Adverse Inference Instruction Does Not Place Such A Duty Upon A Party To Call A Particular Witness. 39 F. Argument Of Counsel In Summation Is Not An Adequate Substitute For The Adverse Inference Jury Instruction Mr. Durant Was Entitled To In This Case. 44 G. Because Evidence Of What Was Purportedly Said By Mr. Durant During The Interrogation Strengthened The Prosecution’s Case On The Contested Issue Of Intent To Forcibly Steal, The Trial Court’s Error Cannot Be Deemed Harmless. 46 H. Conclusion 52 CONCLUSION 54 i TABLE OF AUTHORITIES Federal Cases Ashcraft v Tennessee, 322 US 143 (1944) ........................................................................................... 53 Brady v Maryland, 373 US 83 (1963) ............................................................................................. 34 California v Trombetta, 467 US 479 (1984) ........................................................................................... 41 Clifton v United States, 45 US 242 (1846) .................................................................... 8,9, 23, 24, 31, 40 Colorado v Connelly, 479 US 157 (1986) ........................................................................................... 10 Graves v United States, 150 US 118 (1893) ........................................................................................... 28 Interstate Circuit, Inc. v United States, 306 US 208 (1939) ................................................................................. 8, 11, 23 Miranda v Arizona, 384 US 436 (1966) ..................................................................................... 10, 53 State Cases Armory v Delamirie, 1 Strange 505 (1722) .......................................................................................... 22 Commonwealth v DiGiambattista, 442 Mass 423 (2004) ............................................................................ 14, 21, 31 Cost v State, 417 Md 360 (2010) ..................................................................................... 37, 44 Devito v Feliciano, 22 NY3d 159 (2013) ......................................................................... 9, 26, 30, 44 Gordon v People, 33 NY 501 (1865) ............................................................................................. 11 ii Nassau County Dept. of Soc. Servs. ex rel. Dante M. v Denise J., 87 NY2d 73 (1995) ........................................................................................... 26 Noce v Kaufman, 2 NY2d 347 (1957) ........................................................................... 8, 21, 24, 25 Ortega v City of N.Y., 9 NY3d 69 (2007) ............................................................................................. 26 People v Alvarez, 70 NY2d 375 (1987) ................................................................................... 41, 42 People v Baskerville, 60 NY2d 374 (1983) ......................................................................................... 45 People v Crimmins, 36 NY2d 230 (1975) ................................................................................... 16, 46 People v Durant, 112 AD3d 1366 (4th Dept 2013) .................................................................. 7, 14 People v Erts, 73 NY2d 872 (1988) ..................................................................................... 9, 26 People v Gonzalez, 68 NY2d 424 (1986) .................................................................................. passim People v Green, 50 NY2d 891 (1980) ......................................................................................... 45 People v Handy, 20 NY3d 663 (2013) ................................................................. 14, 26, 34, 35, 37 People v Handy, 83 AD3d 1454 (4th Dept 2011) ........................................................................ 35 People v Hayes, 17 NY3d 46 (2011) ............................................................................... 39, 40, 43 People v Jardin, 88 NY2d 956 (1996) ................................................................................... 39, 40 People v Joseph, 86 NY2d 565 (1995) ......................................................................................... 15 iii People v Kelly, 62 NY2d 516 (1984) ......................................................................................... 27 People v Leonardo, 199 NY 432 (1910) ............................................................................................. 9 People v Macana, 84 NY2d 173 (1994) ................................................................................... 35, 36 People v Martinez, 71 NY2d 937 (1988) ......................................................................................... 27 People v McMillon, 77 AD3d 1375 (4th Dept 2010) .............................................................. 7, 12, 14 People v Paylor, 70 NY2d 146 (1987) ......................................................................................... 28 People v Perino, 19 NY3d 85 (2012) ........................................................................................... 12 People v Rivera, 184 AD2d 288 (1st Dept 1992) ........................................................................ 48 People v Rodriguez, 38 NY2d 95 (1975) ..................................................................................... 21, 28 People v Sanchez, 61 NY2d 1022 (1984) ....................................................................................... 45 People v Savinon, 100 NY2d 192 (2003) ........................................................................... 29, 32, 33 People v Thomas, 46 NY2d 100 (1978) ......................................................................................... 45 People v Valerius, 31 NY2d 51 (1972) ........................................................................................... 21 People v Whalen, 59 NY2d 273 (1983) ......................................................................................... 45 People v Wilson, 64 NY2d 634 (1984) ......................................................................................... 33 iv People v Yazum, 13 NY2d 302, 304 (1963) .................................................................................. 45 Reehil v Fraas, 129 AD 563 (2d Dept 1908) .................................................................. 19, 24, 29 Stephan v State, 711 P2d 1156 (Alaska 1985) ............................................................................. 14 Warney v State of New York, 16 NY3d 428 (2011) ......................................................................................... 20 State Statutes Criminal Procedure Law § 240.20 (1) (g) ............................................................. 34 Criminal Procedure Law § 300.10 ......................................................................... 44 Penal Law § 285 ............................................................................................... 22, 23 Penal Law §§ 20.00, 160.10 (1) ............................................................................... 4 Other Christian, Ubiquitous Public Surveillance Puts Urban Residents Often On Camera, Houston Chronicle, Sept 4, 2014, .................................................................. 38 Drizin and Leo, The Problems of False Confessions in the Post-DNA World, 82 NC L Rev 891, n 16 at 921 [2004] ..................................................................... 10 Innocence Project ....................... 12, 52 Johnson, False Confessions and Fundamental Fairness: The Need For Electronic Recording Of Custodial Interrogation, 6 B U Pub Int LJ 719 (Spring 1997) ........................................................................ 20 Miller, Speech at Hartford forum, reprinted in Convicting the Innocent ................ 52 v NYSBA Task Force On Wrongful Convictions, Final Report [April 2009] ....................................................................................................... 12, 52 Pill and Larson-Chaney, Litigating Litigation Holds: A Survey of Common Law Preservation Duty Triggers, 17 J Tech L & Pol'y 193 [2012] ................................ 23 Prince, Richardson on Evidence § 3-139, 88-89 (11th ed 1995) ........................ 21,22 What Happens When Police Officers Wear Body Cameras, WSJ, Aug 14, 2014, ............................................................. 38 2 J. Wigmore, Evidence §285 (3d ed 1940) ............................................................ 22 Williams, Recorded on a Suspect’s Hidden MP3 Player, a Bronx Detective Faces 12 Perjury Charges, NY Times, Dec 7, 2007, ............................... 12 Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 Geo LJ 209 (1977) ................................................................................. 20 1 PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Associate Judge of the Court of Appeals, granted on May 12, 2014, Everett Durant appeals from an order of the Appellate Division, Fourth Department, dated December 27, 2013. The order affirmed a judgment of the Monroe County Court, rendered on June 10, 2009, convicting Mr. Durant, after a jury trial, of robbery in the second degree, and sentencing him to a five year term of imprisonment followed by a five year term of post-release supervision. 2 QUESTION PRESENTED Where police had the ability to record an interrogation and thereby produce at trial complete and accurate evidence of the interrogation, including the precise words spoken by Mr. Durant and by police, but opted not to and instead relied on police testimony to present a police version of what transpired and what was said, did the trial court commit reversible error in refusing to give the jury an adverse inference instruction? Answer Below: No. The Appellate Division, Fourth Department held the request was properly denied by the trial court because the failure to record does not result in a denial of due process and the police are under no obligation to record interrogations. 3 STATEMENT OF FACTS Mr. Durant stood trial on a single count of robbery in the second degree, and the jury found him guilty as charged. At sentencing the trial judge noted that he had sat through the trial and listened to the trial evidence, and was “sort of surprised” by the guilty verdict (A 261). The Trial Evidence Emmett Hunter, who had a long and significant history of criminal behavior (convictions for burglary in the first degree, attempted robbery in the second degree, assault, and repeat parole violations [A 90-94]), saw a group of five or six teenagers on the corner talking as he walked down North Clinton Avenue on November 28, 2008. He got a “funny feeling something was going to happen”; “something didn’t feel right.” (A 58-59). Mr. Hunter said he could not explain exactly what happened, but as he walked through the crowd he felt someone grab him from behind. The next thing he remembered, he was calling the police on his cell phone and telling them he had just been robbed. Mr. Hunter was not sure whether he had been knocked unconscious before making that call to 911. As he made the call, the group came back at him, and one in the group – a person in a red sweat suit – put him in a “choke hold” while the others beat him up. Hunter grabbed the person in the red sweat suit, whom he identified as Everett Durant, and dragged him into the street. (A 58-61, 64). 4 Mr. Hunter testified he had his wallet in his backpack, but then he said it was in his sweatpants’ pocket (A 63). He claimed the wallet was removed from his pocket by the person in the red sweat suit, and he knew this, because that person had the wallet in his hands when he called 911. However, right after giving that testimony, Mr. Hunter said he did not know “if when” they took his wallet because he did not know if he was “knocked out.” (A 64.) He did remember calling 911 and saying he had just been robbed. Hunter conceded he told the 911 operator it was a man wearing a black jacket and a black hat who had robbed him. (A 82, 96.) And he further conceded that although he told the 911 operator that the man with the black jacket had a gun, he never saw a gun (A 96, 98-99). He agreed the defendant was not wearing a black jacket (A 83). Mr. Hunter admitted on cross- examination that he had previously said that he did not know which “kid ended up stealing [his] stuff” (A 86). Everett Durant, wearing all red, was stopped by police a few minutes and a few blocks away. After a show-up identification he was charged with one count of robbery in the second degree in violation of Penal Law §§ 20.00 and 160.10 (1). At trial, the defense was that Mr. Durant got involved in a fight with the complainant after the others had chased him, but did not steal, intend to steal, or assist others to steal. 5 Jasmine Everett, Everett Durant’s sister, testified that she and her brother were talking to a person on the sidewalk when the complainant ran by with a group of people chasing him. Ms. Durant’s testimony showed an altercation already in progress when her brother, who was not a part of the group chasing the complainant, exchanged words with the complainant, and then jumped into the fray. She said her brother hit and kicked the man being chased. Prior to his entry into the altercation her brother only had been with her and “Little C,” who was not involved in the altercation and had left by the time Mr. Durant joined in. Critical to the prosecutor’s case was the statement police claimed Mr. Durant made in a custodial interrogation (A 286-287 [People’s Ex 13]). At the “east side” station Mr. Durant was handcuffed to a table and “interviewed” by Investigator Powell. No recording was made of the interrogation, although recording equipment was available at the Public Safety Building, which was just ten minutes away from where Investigator Powell chose to conduct the interrogation. (A 133-134.) In that statement, Mr. Durant denied having taken any property from the complainant himself. However, the statement made it appear that Mr. Durant acted in concert with the group. It showed Mr. Durant to have been with the group prior to the start of the altercation and it showed him to have been one of the initial participants who “jumped” the guy with the cell phone (the complainant). 6 The Request to Charge The defense requested a jury instruction that would have cautioned the jury that the failure to record means that the jury has “not been provided with a complete picture of all the facts surrounding the defendant’s interrogation and the precise details of any statement,” and instead has been provided a summary of the interrogation based upon the recollection of police. (A 289-290 [Request To Charge]). It would have advised the jury that it could consider the failure to record the interrogation as a factor in deciding what weight, if any, to be given to the statement attributed to Mr. Durant. It also would have informed the jury that “[t]he absence of an electronic recording permits, but does not compel, [it] to conclude that the prosecution has failed to prove that the statement was either actually or voluntarily made, or if made, that it was accurately reported by the State’s witnesses. (A 289-290.) The trial court noted the defense had made a request to charge the jury on the failure to record the interrogation, marked the written request as Court Exhibit 1, and denied the request (A 192). The Appellate Division Ruling On appeal to the Appellate Division, Fourth Department, Mr. Durant argued that the verdict was against the weight of the evidence, and that the trial court committed reversible error in refusing to give an adverse inference instruction. The 7 Appellate Division affirmed Mr. Durant’s conviction finding first, as to the contested element of larcenous intent, the verdict was not against the weight of the evidence as there was testimony from the complainant that the defendant stole his wallet during a group assault, and the “People presented evidence establishing that defendant knowingly participated and continued to participate even after his companions’ intentions to take the victim’s cell phone became clear, and thus shared a community of purpose with his companions” (People v Durant, 112 AD3d 1366 [4th Dept 2013] [internal quotation marks, brackets and citations omitted]). As to the second, the court found the request for an adverse inference charge was properly denied, citing its decision in People v McMillion (77 AD3d 1375 [4th Dept 2010]). 8 SUMMARY OF ARGUMENT It is well established that when a party has it peculiarly within its power to produce evidence that would elucidate a transaction in issue or support a claim it has made, the party’s failure to produce such evidence entitles the fact finder to draw an inference that the evidence, if produced, would not have supported the non-producing party’s claim (Interstate Circuit, Inc. v United States, 306 US 208, 226 [1936]; Noce v Kaufman, 2 NY2d 347, 353 [NY1957]). The United States Supreme Court has written of the distinction between “the higher and inferior degree of proof . . . when tendered as evidence of a fact,” and said that when a party produces weak and less satisfactory evidence, when “proof of a more direct and explicit character was within the power of the party,” the fact finder is entitled to find that the “highest and best evidence going to the reality and truth of the transaction would not be favorable” to the non-producing party. (Clifton v United States, 45 US 242, 248 [1846].) When police fail to record the interrogation, what is put before the fact finder is not what the defendant said, but the police version of what the defendant said; not what transpired during the interrogation, but the police version of what transpired, which is incomplete, and subject to bias, faulty recollection, mistake, or perjury. Given the ubiquity and simplicity of recording today, it is “natural to suppose” that the police would have produced a recording of the interrogation if 9 they had so desired (see People v Leonardo, 199 NY 432, 446 [1910 ] [“It would be natural to suppose that the defendant could have produced his father as a witness if he had so desired”]). And when the police choose not to produce the most reliable, objective and accurate evidence which was within their power and ability to produce, the inference that logically and naturally flows from that failure is that the recording would not have supported their claims (see Clifton v United States, 45 US at 247; People v Gonzalez, 68 NY2d 424 [1986]), and the jury must be told so, upon request, unless the non-producing party demonstrates the charge would not be appropriate (see Devito v Feliciano, 22 NY3d 159 [2013]; People v Erts, 73 NY2d 872 [1988]). 10 POINT ONE: The Trial Court’s Refusal To Give An Adverse Inference Instruction Regarding Investigator Powell’s Failure To Record Mr. Durant’s Custodial Interrogation Is Reversible Error. A. Introduction The most condemning, compelling and decisive evidence a prosecutor can put before a jury is often a police officer’s testimony about that which the officer claims the defendant has said. (Drizin and Leo, The Problems of False Confessions in the Post-DNA World, 82 NC L Rev 891, n 16 at 921 [2004].) Of a confession, Supreme Court Justice Brennan said, “[n]o other class of evidence is so profoundly prejudicial,” and because it “so strongly tips the balance against the defendant . . . we must be especially careful about a confession’s reliability.” (Colorado v Connelly, 479 US 157, 182 [1986] [internal citations omitted], Brennan J., dissenting.) The protections afforded by Miranda were recognized as necessary because without them "all the careful safeguards erected around the giving of testimony . . . would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police." (Miranda v Arizona, 384 US 436, 466 [1966] [internal citations omitted].) When the police have the ability to record a custodial interrogation but opt not to, it is at the unreviewable “pleasure of the police” that the most compelling and damning evidence of guilt is admitted into evidence against a defendant. But 11 when the police have the power to produce accurate and indisputable evidence to show what occurred during an interrogation and exactly what was said and by whom, the inference that naturally and logically flows from their failure to do so is that a recording of the interrogation would not be helpful to support the subjective, selective and incomplete police testimony about the interrogation (see Interstate Circuit, 306 US at 226 [“The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse”]). The jury in this case should have been instructed that the absence of an electronic recording permitted, but did not compel, it to conclude that the People had failed to prove the statement was actually and voluntarily made, and accurately reported by police. Both the United States Supreme Court and this Court have long recognized a party's failure to produce evidence that would elucidate the transaction in issue, when that party has it peculiarly within its power to produce such evidence, supports an instruction that the jury can draw an inference that the testimony, if produced, would have been unfavorable to the party who failed to produce it. (Interstate Circuit, Inc. v United States, 306 US 208, 226 [1939]; People v Gonzalez, 68 NY2d 424, 427 [1986]; Gordon v People, 33 NY 501 [1865].) That rule “derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless 12 claimant permits the inference that its tenor is unfavorable to the party's cause” (Gonzalez, 68 NY2d at 427 [internal quotation marks and citations omitted]). This rule applies even though there is no requirement that a party produce evidence. A statutory or constitutional violation simply is not, and never has been, a pre- requisite. The power to produce an objective, complete and indisputable record of what took place between the defendant and police, and what was said by each, lies exclusively with the police. Where there is an electronic recording, there can be little disagreement about what takes place in the interrogation room (see e.g., People v Perino, 19 NY3d 85 [2012]); Timothy Williams, Recorded on a Suspect’s Hidden MP3 Player, a Bronx Detective Faces 12 Perjury Charges, NY Times, Dec 7, 2007,). While there is no constitutional or statutory requirement in New York that interrogations be recorded (see McMillion, 77 AD3d 1375), false and fabricated confessions are now recognized as a leading source of wrongful convictions1, and where the police choose not to make a recording of the interrogation, they have created what will often be dispositive evidence of guilt that cannot be reviewed by judges, juries, the 1 In about 30 percent of the wrongful convictions overturned by DNA evidence, defendants made a false confession or pled guilty (http://www.innocenceproject.org/fix/False-Confessions.php [last visited September 18, 2014]), and in 2009 the New York State Bar Association Task Force on Wrongful Conviction identified false confessions as a root cause of wrongful convictions (NYSBA Task Force On Wrongful Convictions, Final Report [April 2009] 6). 13 defense or the public, and is most likely immune from meaningful challenge as to its accuracy, reliability or voluntariness. Here, as the testimony of Investigator Powell shows, the police had the power and ability to produce a recording of the interrogation, but chose not to do so. Investigator Powell, who conducted the interrogation here, testified that after Mr. Durant described his involvement as an innocent bystander who just tried to break up a fight, he told Mr. Durant it was time to “tell the truth” and “man up.” (A 124-125.) According to the investigator Mr. Durant then admitted participating in the attack upon Mr. Hunter, and gave a written statement admitting such (but denying that he personally stole items). (A 125-128, 286-287.) The investigator did not record the interrogation, which took place at the North Clinton police station (“east side”). That station, according to the investigator, lacked recording equipment. Just ten minutes away, however, at the Public Safety Building, there was recording equipment. The investigator agreed that he chose to take Mr. Durant to the “east side” station rather than to the Public Safety Building. (A 133-134.) The defense asked the court to instruct the jury that it could consider the failure to record the interrogation in deciding (1) what weight, if any to give the statement attributed to Mr. Durant, and (2) whether the alleged statement was 14 voluntarily or actually made, and accurately reported by the investigator (A 289- 290). The trial court denied the request without explanation (A 191). The Appellate Division, Fourth Department affirmed, citing People v McMillion (77 AD3d 1375 [“(T)his Court has repeatedly determined . . . that the failure to record a defendant's interrogation electronically does not constitute a denial of due process . . . and thus an adverse inference charge was not warranted" [internal quotation marks and citations omitted]). (Durant, 112 AD3d at 1367.) However, as explained below, the availability of an adverse inference instruction does not depend upon the existence of a constitutional or statutory obligation to produce or preserve evidence (see e.g. People v Handy, 20 NY3d 663, 669 [2013]; Gonzalez, 68 NY2d at 427), and the requested instruction should have been given. On this appeal, Mr. Durant is not asking the Court to create a rule requiring the recording of interrogations, or asking that his statement be suppressed for the failure to do so (compare Stephen v State, 711 P2d 1156 [Alaska 1985]). Rather, this Court is urged to find, under circumstances where the police have the ability to record an interrogation but do not, that defendant is entitled to an instruction (upon request) advising the jury that the failure to record is a factor it may consider in determining whether the statement was actually and voluntarily made, and in determining the accuracy of the police testimony about the interrogation and its product (see e.g. Commonwealth v DiGiambattista, 442 Mass 423, 446-447 [2004] 15 [where police “choose not to preserve an accurate and complete recording of the interrogation, that fact alone justified skepticism of the officer’s version of events” and a defendant whose interrogation has not been recorded “should be entitled, on request, to a cautionary instruction concerning the use of such evidence”]). This Court has recognized that “the fallibility of human memory makes the necessary flawless reconstruction all but impossible” (People v Joseph, 86 NY2d 565, 567 [1995] [addressing, in Rosario context, testimonial reconstruction of contents of destroyed document]). And when the police have the means to record an interrogation but opt not to, the defendant, court and fact finder are all denied access to critical evidence – evidence upon which a verdict will often turn, and evidence one would expect to be produced in support of police testimony. The inference that a recording, if produced, would not be favorable to the prosecution, flows rationally and logically from the failure to record when it was within the power of the police to do so. As detailed below, the police had the power and ability to produce an electronic recording of the interrogation, and their failure to do so places this failure within the type of evidentiary omissions which this Court has held warrant an adverse inference (see Gonzalez, 68 NY2d at 427). Absent the requested instruction, the jury could not, and would not, have known that it could consider the failure to produce an electronic recording of the interrogation on the question 16 of whether the statement as reported by police was actually and voluntarily made. Because the trial court’s error in refusing to give the requested instruction was not harmless, a new trial is required (see People v Crimmins, 36 NY2d 230 [1975]). B. The Police Created Key Prosecution Evidence When They Interrogated Mr. Durant, And Had It Within Their Power To Produce An Objective, Indisputable Record Of That Evidence. At trial, Investigator Powell provided his summarized version of what he claimed had taken place during his “interview” with Mr. Durant. The “interview” occurred shortly after midnight with Mr. Durant handcuffed to a table, in a five-by- nine foot room, over a time span of about 40 minutes. The investigator talked to Mr. Durant for five to ten minutes before reading the Miranda warnings. That pre- Miranda conversation was about Mr. Durant’s daughters. (A 122.) After the Miranda warnings, according to the investigator, Mr. Durant explained that he came upon a fight and tried to break it up, and in doing so, punched the “alleged victim.” The investigator then told Mr. Durant it was “time to tell the truth and to man up,” and Mr. Durant said “okay,” and then gave a different and culpable version of involvement. (A 122-129.) It is clear from the investigator’s testimony that a recording would have been evidence far superior to the officer’s testimony, which was marked by incompleteness, misattribution and faulty memory. A (Inv. Powell): He told me what occurred. He said the alleged victim was walking northbound on North Clinton and he was being 17 crowded by this guy “Little C” and his brothers. So he went over there and punched the alleged victim and kicked him several times. During this fight the victim lost - - alleged victim lost a hundred dollars, a mobile phone, some other property. Q: Did the defendant tell you that? A: No. Q: After the defendant told you about what had happened, what did you do after that? A: I took a statement from him. (A 125.) The investigator then said that he wrote up the statement (People’s Ex 13) and Mr. Durant signed it (A 125-126). He denied ever threatening Mr. Durant (A 132). When asked whether he took or made any notes during the interview, the Investigator testified: “No notes” (A 131). But, when Defense Exhibit C (marked for identification) was shown to the investigator, he conceded the exhibit was three pages of notes he made prior to crafting the written statement he attributed to Mr. Durant (A 132). On cross-examination many more aspects of the investigator’s interrogation with Mr. Durant came to light. For instance, the investigator agreed that he had told Mr. Durant that he was facing serious charges and it “could be in [Durant’s] best interests” to talk with him; that he could help himself by telling the truth; and that if he did not speak, his side of the incident would never come out (A 133, 18 136-138). The investigator also conceded that the written statement was not a verbatim transcription of what Mr. Durant had said, and that the 40 to 45 minute conversation was boiled down to about 600 written words. He agreed that there was a “fair amount of discussion” that does not appear “anywhere.” (A 133, 136- 138.) The investigator acknowledged that he did not record his conversation with Mr. Durant. He testified that while he had not seen a tape recorder at the 630 North Clinton station (“east side”), they did have “them” at the “west side.” He also conceded that the Rochester Police Department has video recording machines at the Public Safety Building, which was just a ten-minute drive from the station at 630 North Clinton. The investigator agreed that he chose to conduct the interview at the North Clinton station. (A 134.) On redirect, the investigator said it was common practice to take a suspect to the “east side office” when the crime occurred on the east side, but a homicide suspect would be taken to the Public Safety Building (A 142). During the interrogation, the investigator observed Mr. Durant carefully, watching his face and eye movement in an attempt to determine whether he was being truthful, and he agreed that “in [his] line of work” this was “terribly important” to do. When asked whether the “only thing that could show us what 19 was actually on Mr. Durant’s face that night would be a video tape,” the investigator said: “No. I disagree. My recollection.” (A 140.) As the testimony of Investigator Powell demonstrates, when the police carry out an interrogation they create evidence about which they later testify. Investigator Powell asked questions of Mr. Durant and said things in order to get him to respond, and he did. Some of what was said was written down, while much was not. As the investigator touted, it was his recollection about what occurred that was presented. And that recollection was certainly faulty as demonstrated by the investigator’s adamant denial of having taken notes (A 132). Investigator Powell’s testimony also shows, quite clearly, that a summary by police of what occurred during the interrogation, and what was said and by whom, is far from an “indisputable and conclusive” version of events. Instead it depends on the “slippery memory and honesty” of the witness (Reehil v Fraas, 129 AD 563, 565 [2d Dept 1908]). When the exact words used by each party are not recorded much of the actual content of conversation lost, forgotten or otherwise withheld. Whether the words came independently from the mouth of the defendant, or were those of police then attributed to the defendant after careful leading produced acquiescence 20 to the suggestions of police2, will rarely be known. Psychological interrogation techniques and tactics, aimed at getting a defendant to confess, and coercive methods3, remain hidden from view. So too the intonation, gestures, and intensity of the conversation, along with facial expressions and emotions. Deceptive and suggestive tactics, veiled threats and implied promises of leniency, remain unexposed when police testimony, which is offered to describe the interrogation and that which it produced, takes the place of a recording. Such testimony, inescapably, is incomplete and subjective at best, and misleading and dishonest at worst. And that testimony stands in the place of an accurate, complete and indisputable recording that could easily have been produced. A court’s dependence upon the testimony of police to determine what occurred during an interrogation has been compared to the conducting of an appeal depending on nothing “but each lawyers own recollection and interpretation of the critical events at trial.” (Yale Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 Geo LJ 209, 242 [1977]). The failure to record 2 With no recording, it is easy for police to “feed” a defendant undisclosed details of a crime and then coerce the defendant into adopting those details as his own. Those details, which only the true culprit would know, then appear in the confession as coming directly from the defendant to give the “confession” a false sense of reliability. (See e.g. Warney v State of New York, 16 NY3d 428, 432 [2011], n1 and Smith, J. concurring 437 – 439). 3For an examination of interrogation techniques and the psychological complexities underlying several false confessions which led to wrongful conviction, see Johnson, False Confessions and Fundamental Fairness: The Need For Electronic Recording Of Custodial Interrogation, 6 B U Pub Int LJ 719 (Spring 1997) 21 denies the judge, jury, and defense access to relevant and critical facts, while it rewards the prosecution which is then free to place before the jury an un- reviewable version of what it claims took place, and what it claims was said. The investigator in this case opted not to preserve a complete and accurate record of the interrogation despite having the means to do so just a ten-minute ride away. And even if the practice of the Rochester Police Department was to only use that equipment for serious crimes, or homicides (A 142), any institutional decision underlying that practice, where the Department is capable of recording, is one of pure choice. As the Massachusetts Supreme Court said “the failure better to preserve this critical evidence in the first place, a failure that is often attributable to the strategic decision . . . merits the fact finder's express consideration” (DiGiambattista, 442 Mass at 446). C. When A Party Is In A Position To Produce Material Evidence In Support Of Its Case But Fails To, The Opposing Party Is Entitled To An Adverse Inference Instruction. It is well established that a party’s failure to produce material evidence within its control is a factor that may be considered by a jury in assessing the strength of evidence on an issue in the case (see Gonzalez, 68 NY2d 424 ; People v Rodriguez, 38 NY2d 95, 101 [1975]; Prince, Richardson on Evidence § 3-139, 88- 89 [11th ed 1995]). “A party’s failure to produce evidence which the party controls and would be naturally expected to introduce, raises the logical inference 22 that the withheld evidence would prove unfavorable” (Richardson § 3-139, 88-89; see also Noce v Kaufman, 2 NY2d at 353; People v Valerius, 31 NY2d 51 [1972]). As Professor Wigmore wrote: “The failure to bring before the tribunal some circumstances, documents, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions: and they are also always open to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such inferences in general is not doubted.” (2 J. Wigmore, Evidence §285 [3d ed 1940].) The origin of this rule appears to trail back 1722 in a case involving a chimney sweep and a found jewel (Armory v Delamirie, 1 Strange 505 [1722]). The chimney sweep found a ring with jewel stones and took it to the defendant to find its value. The defendant examined the ring and gave it back to the plaintiff, absent its stones. In an action to recover damages for the stolen stones, the question of the stones’ value was before the court. But the defendant refused to produce the stones in court. In response, the judge told the jury it should presume the stones were of the finest quality, and compensate the defendant accordingly. The goal of such a presumption, advanced through what has been come to be known as an “adverse inference” instruction to the jury, is to prevent the party who 23 withholds evidence from benefitting from that act, and to eliminate any inequity caused by the non-producing party. (Pill and Larson-Chaney, Litigating Litigation Holds: A Survey of Common Law Preservation Duty Triggers,17 J Tech L & Pol'y 193 [2012].) As the United States Supreme Court said, “The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse” (Interstate Circuit, Inc., 306 US at 226, citing Clifton v United States, 45 US at 247). In Clifton v United States the Court made clear that where a party offers inferior evidence, the presumption “exists in full force and effect against the party withholding the better evidence; especially when it appears, or has been shown, to be in his possession or power” (id. at 247 – 248 [emphasis added]). The Supreme Court spoke of the distinction between higher and inferior degrees of proof, and explained that an inference against a non-producing party is proper where it has produced the weaker, when it had the power to produce stronger. “If the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit character was within the power of the party, the same caution which rejects the secondary evidence will awaken distrust and suspicion of the weaker and less satisfactory; and that it may well be presumed, if the more perfect exposition had been given it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal.” (Clifton, 45 US at 248.) 24 The claimant in Clifton failed to produce the “very best evidence” that was “within his reach” (on the issue of the costs of the goods at issue) and “contented himself with the weaker evidence.” Thus, “the obvious presumption to be turned against him” was that the “highest and best evidence” would not have been favorable to the defense. (Clifton, 45 US at 247.) If evidence within a party’s control would strengthen its case, it can be expected to introduce it even if not required to produce it. That is the reasoning underlying the claim made here. New York law is similarly based. As explained by one New York court long ago: where a party fails to produce evidence that could conclusively determine the fact in dispute, that failure may give rise to a conclusive inference (i.e. a presumption) that the fact is not as he claims or is as claimed by the opposing side; and where a party fails to produce oral evidence, which is not “indisputable and conclusive, but depends on ‘slippery memory’ and honesty,” that failure is a fact to be considered in determining how much weight, if any should be given to the evidence the non-producing party has produced. “The question is one of inference for the jury . . . it is not an inference or presumption of law, but one of fact” and “[i]t does not grow out of any duty on the part of litigants in respect of calling witnesses or of testifying themselves.” (Reehil v Fraas, 129 AD 563, 564 [2d Dept 1908] [emphasis added], revd other grounds 197 NY 64.) 25 In Noce v Kaufman (2 NY2d 347), this Court said “where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits.” (Id. at 357.) There, the party against whom the inference was made (Kaufman) had failed to respond to the opposing party’s multifaceted proof regarding the cost of items and whether those costs had been paid, and instead presented only conclusory, generalized testimony that it had paid for all the labor and material that had gone into the project which was the subject of the litigation. The defendant’s failure to produce documentary evidence, or provide testimony more specific and particular to support its generalized claim that it had paid all bills, resulted in the absence of support for the defendant’s conclusory testimony that he had paid for everything. Therefore the adverse inference was warranted. And even though there was no showing that such evidence existed, it was the expectation that one making such a claim would support it with more reliable proof that permitted the strong negative inference. In both Noce v Kaufman and the present case, one party had the opportunity to produce more reliable and specific proof than it did. In Noce that proof would have been receipts, bills, records or even more specific testimony to support conclusory testimony of the defendant. In the present case that proof would have been a recording of the interrogation to support the officer’s testimony which 26 summarized what transpired. In neither case was the absent evidence shown to exist. Parties are entitled to an adverse inference jury instruction in a variety of circumstances where one party has failed to produce material evidence that was within his power to produce and under his control. In some cases the instruction is required because a party has failed to produce evidence which would have elucidated or supported its claim of what occurred (see e.g., Devito, 22 NY3d 159 [new trial ordered where trial court refused to give requested missing witness instruction in response to plaintiff’s failure to produce material witnesses]; Nassau County Dept. of Soc. Servs. ex rel. Dante M. v Denise J., 87 NY2d 73, 79 [1995] [“A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding”]; Erts, 73 NY2d 872 [new trial ordered where trial court refused to give missing witness charge and evidence showed an uncalled police officer was in a position to see the transaction and know whether the defendant was the drug seller]). In others, the instruction is warranted because of a party’s failure to preserve material evidence that it could have preserved and produced (see e.g. Handy, 20 NY3d at 66 [permissive adverse inference charge required where evidence reasonably likely to be material was destroyed, notwithstanding the lack of either a due process or statutory violation]; Ortega v City of New York, 9 NY3d 69, 76 [2007] [an adverse inference instruction 27 is one way to restore balance to the litigation after a party has been deprived of evidence by another party’s spoliation]). And in some cases an adverse inference charge is warranted as a sanction for the People’s failure to disclose evidence which it was required to produce (see e.g. People v Martinez, 71 NY2d 937 [1988] [adverse inference instruction proper where People failed to produce Rosario material which may have existed]), or preserve discoverable evidence (see People v Kelly, 62 NY2d 516 [1984]). Only in the last category of cases is the adverse inference a sanction for failing to do that which was required, and that is not the basis underlying the requested instruction in this case. Entitlement to the requested instruction here arose from the prosecution’s failure to produce evidence that would have elucidated and supported the investigator’s claim of what occurred, and what was said, during the interrogation, and would have been produced by “an honest and therefore fearless claimant” in presenting the strongest evidence within its power – not as a sanction for the failure to comply with a discovery rule. Thus, whether a recording was required is neither controlling nor relevant on the question of whether the failure of the police to record the interrogation is a fact from which the jury may draw an adverse inference, and if so, be told. By way of illustration, in the context of a missing witness, there is certainly never a requirement that a party call a particular witness to testify. 28 In criminal cases, an adverse inference based upon a failure to produce evidence most frequently arises when a party fails to produce a material witness. In People v Rodriguez (38 NY2d 95, 98), this Court applied the civil rule in Noce to a criminal case, and upheld an adverse inference instruction against the defendant who testified in his own defense, but failed to present the testimony of his wife, who had been present at the transaction in dispute, and would have been expected to testify in support of her husband’s claims (see also People v Paylor, 70 NY2d 146 [1987] [where the defense failed to produce a witness to support his alibi defense, an adverse inference instruction was warranted, allowing the fact finder to infer that the missing witness would not have corroborated the other alibi witness]). A decade later that same rule was applied against the prosecution in People v Gonzalez (68 NY2d 424). “As stated by the Supreme Court, ‘The rule in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable’ (Graves v United States, 150 US 118, 121).” (Gonzalez, 68 NY2d at 427.) In Gonzalez, the trial court refused to give an adverse inference charge for the People’s failure to produce the common-law husband of the complainant, who would have been expected to corroborate several aspects of the complainant’s 29 testimony. Certainly, there was no requirement that the People call him as a witness. This Court reversed the conviction, explaining that entitlement to the instruction is established once it is shown “that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (see Reehil v Fraas, 129 App Div 563, 566, revd on other grounds 197 NY 64; McCormick, op. cit.; Richardson, op. cit.; 1 CJI [NY] 8.53).” (Gonzalez, 68 NY2d at 427.) Once those three conditions are met, the charge must be given unless the party who has failed to call the witness accounts for the witness’s absence (i.e. the party had shown diligent efforts to locate the witness have failed) or otherwise demonstrates the charge is not appropriate (i.e. the witness was shown to lack relevant knowledge). ( Id., at 428.) “[W]hen a party truthfully presents a version of events, a fact finder would expect that party's friend or ally (if knowledgeable) to confirm it. If a witness that valuable does not appear to support the party's side - and if there is no good reason for the witness's absence - it is only natural to suppose (or as the law has it, infer) that the witness cannot honestly help the party.” (People v Savinon, 100 NY2d 192, 196-197 [2003].) In the case of an interrogation, it is more than just the opportunity to support or confirm the police testimony that would be served by the expected but missing evidence. When the police have the means to record the interrogation, and doing 30 so would mean that the fact finder would see and hear an indisputable record of what occurred and what was said, and they do not, the expectation is even more compelling than where a witness is not produced. The witness is still only in a position to give subjective, selective and possibly incomplete and inaccurate testimony about something he has perceived, while a recording of an interrogation provides and indisputable, accurate and complete record of what occurred. D. Because Police Had The Power To Produce An Objective, Indisputable Record Of The Interrogation In Support Of Investigator Powell’s Testimony, The Foundation For Adverse Inference Instruction Was Established. Here, Investigator Powell’s testimony was unquestionably of an inferior nature than that which could have been produced. It was an incomplete and subjective summary of what the investigator claimed he recalled, and the accuracy of that testimony is impossible to know. Yet the police had it within their power to bring the interrogation out from the shadows and into the light. They could have produced a recording of the interrogation – evidence of a superior quality because it would have been complete, accurate, and indisputable evidence of what transpired, what was said, and by whom. The prosecution in this case opted not to produce the best evidence, and instead “contented” itself with the inferior evidence. Recently, this Court reaffirmed what it identified as three preconditions for a missing evidence instruction in both civil and criminal cases: the evidence must be 31 material, available and under the control of the prosecution (Devito v Feliciano, 22 NY3d at 165-166 [the missing evidence was a witness]). All are met in this case, where an “honest and therefore fearless” claimant would be expected to produce a recording. First, there can be no doubt that a recording of an interrogation is material. Beyond material, it would be the best evidence of what transpired – undeniably the “very best evidence” that was “within his reach,” far superior to that presented (Clifton, 45 US at 248.) Evidence of the interrogation and its product was critical to the prosecution’s case as it portrayed a version of events that countered the version of events offered by the defense, and in doing so, created a basis from which to infer Mr. Durant was acting in concert with others and possessed an intent to forcibly steal. Whether the version of interrogation offered by Investigator Powell was accurate and true, and whether the investigator employed improper interrogation techniques, or exerted undue pressure or coercion, can never be known without a recording. “Given the fine line between proper and improper interrogation techniques, the ability to reproduce the exact statements made during an interrogation is of the utmost benefit (DiGiambattista, 442 Mass at 440-441). Second, a recording of the interrogation was “available” to the police. Availability has been explained by this Court, to simply refer to a party’s ability to produce the evidence (Gonzalez, 68 NY2d at 428). The police could have easily 32 recorded this interrogation. The equipment to do so was just a ten minute ride away, at the Public Safety Building. It was simply a choice not to do so. And the People made no claim that there was any impediment to recording the interrogation, although they did establish it was not the practice of the Rochester Police Department to do so in non-homicide cases (A 142). Clearly, the police had the power and ability to produce a recording of the interrogation. The Investigator’s testimony about practice of the Rochester Police Department to not record interrogations in non-homicide cases fails to establish that the evidence could not be produced, and was therefore unavailable. This Court has set a high bar for parties seeking to avoid an adverse inference instruction on the basis of unavailability, and done so in order to avoid a pro forma effort to produce the evidence from serving a party’s goal of keeping evidence at bay, while avoiding an adverse inference charge. (See Savinon, 100 NY2d at 200 [defendant did not rebut prosecution’s showing of availability by informing court that missing witness would not come to court because of fear of deportation].) Here, it clearly was within the power of the police to produce a recording, and the investigator’s excuse for not doing so is insufficient to avoid the instruction. The rational underlying the high level of diligence required in order to establish the unavailability of a missing witness applies equally here, and even if the failure to 33 record is tacked to some sort of informal institutional decision to only record in certain cases, that explanation is essentially one of “we don’t do that.” As to the third precondition of “control,” this Court has explained in the missing witness context, that control refers to “the relationship between the witness and the parties” and not “physical availability” (Gonzalez, 68 NY2d at 428 -429), and it really relates more to “favorability” (Savinon, 100 NY2d at 200-201) . “Where there is a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor, the so-called control element is satisfied.” (Id. at 201 [internal quotation marks and citation omitted].) Here, especially because of the critical nature of a confession, it was natural to expect the police to produce the most accurate and reliable evidence in their favor to support what the investigator claimed. Thus, the control element is satisfied. Importantly, entitlement to an adverse inference missing witness instruction is not dependent upon a statutory or constitutional violation, nor a breached duty or unmet obligation. While a defendant clearly has no burden to present evidence and his failure to do so cannot be brought to the jury’s attention, it is now well established that once he does present evidence, an adverse inference may be drawn against him if he does not support that evidence with other relevant and available proof under his control (see People v Wilson, 64 NY2d 634 [1984]). There is no 34 statutory duty or constitutional obligation to produce the evidence in support of defendant’s claims. Likewise, the prosecution is under no duty or burden to present evidence of an interrogation or the admissions it produces. However, once it does, like a defendant who presents some evidence of an alibi but fails to support that testimony by calling a particular alibi witness, the failure to present evidence that could have been produced to support the police claims should similarly be subject to a negative inference. A duty to present certain evidence has never been a prerequisite, or even a factor mentioned, in this Court’s decisions finding that an adverse inference charge should be given when a party fails to present evidence within its power to produce which would elucidate a matter at issue. In People v Handy (20 NY3d 663, 669), a recording which, according to a prosecution witness contained a “small part” of the jailhouse assault underlying the criminal charge of which the defendant was convicted, was not preserved. The State was under no statutory obligation to preserve and disclose the recording as it fell outside the provisions of CPL 240.20 (1) (g), which made it discoverable only if the prosecution intended to introduce it at trial, and no constitutional obligation to preserve and disclose it as it fell outside the scope of Brady v Maryland (373 US 83 [1963]), because it could not be shown the recording was exculpatory. The Appellate Division, Fourth Department, held that no adverse inference charge was 35 required because defendant had failed to show that the video recording was discoverable evidence, or exculpatory (People v Handy, 83 AD3d 1454 [4th Dept 2011]). This Court reversed, and held “under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.” (Handy, 20 NY3d at 669.) The rationale underlying the holding in Handy applies with equal force to this case. In Handy, the prosecution failed to take the steps necessary to preserve the recording, which was material evidence. In the current case, the police chose not to take the steps necessary to create a recording which preserved details of the interrogation in a thorough and reliable form – evidence that is unmatched in terms of its objectivity and accuracy, and would show what actually occurred and was said. In both cases, reliable and accurate evidence of what had occurred was not available at trial because of the prosecution’s failure to preserve it. And in this case, the failure to preserve evidence of the interrogation was a conscious decision of police, while in Handy, it appeared not to have been. In People v Macana (84 NY2d 173 [1994]), this Court explained that the “possibility of incurring an unfavorable missing witness charge would be a significant deterrent against a fabricated defense version” of events (id. at 178- 36 179). There, defendant was charged with possession of a weapon, and advanced a defense of temporary innocent possession. The defendant testified that he took the gun away from his suicidal father, who left the house before police arrived. The defendant did not call his father to testify to support his version of events. This Court found the People had met the criteria set forth in Gonzalez: the father was shown to have material information and would be expected to testify favorably to the defendant. As to the defendant’s claim that his father was unavailable because he would likely assert the Fifth Amendment privilege against self-incrimination if called, this Court noted that “when the defendant is the only source of proof of either the existence of the uncalled witness or that favorable testimony of that witness would be self-incriminating,” additional safeguards are required to avoid a fabricated defense that shifts criminal responsibility to the uncalled witness. Thus, the adverse inference charge was proper. Otherwise, “defendant's position on appeal would permit him to shift the criminal wrongdoing from himself to his father and absolve him from calling his father as a witness, based solely on his own assurances that the father was present, participated in the criminal activity and would verify defendant's version except for the risk of self-incrimination . . .. Under these circumstances, requiring some additional, nonprejudicial substantiation by the defendant represents a fair balancing of the competing legitimate interests of the People (to deter a perjurious defense) and of the defendant (to avoid an unfavorable missing witness charge when a material witness would actually be likely to refuse to testify because of the risk of self-incrimination).” (Macana, 84 NY2d at 178-179.) 37 Just as the adverse inference instruction will serve to protect the “legitimate interest of the People” to deter a perjurious defense, an adverse inference instruction will serve to protect the legitimate interests of the defendant to deter a perjurious (or inaccurate) account of an interrogation and confession. If an adverse inference charge is a deterrent to defense fabrication, can it be any less to police fabrication? What was at risk in Macana that stands to be mitigated by the adverse inference instruction is that of a defendant giving a false alibi. The risk in the present case that stands to be mitigated by the adverse inference instruction is that of police giving testimony about an interrogation or the statement it produces that leads a jury to convict on the basis of false or inaccurate testimony, or an incomplete presentation of what occurred and was said by whom. And, as this Court recognized in Handy, an adverse inference given for the failure to record when it was within the power of police to do so, may also prompt police to record (see Handy, 20 NY3d at 669 [an adverse inference instruction may provide police with incentive to take whatever steps are necessary to preserve a recording that is likely to be material]). It would incentivize production of an objective, indisputable and complete record of what occurred and what was said. As the Maryland Supreme Court has said, “[f]or the judicial system to function fairly, one party cannot be permitted to gain unfair advantage by the failure to 38 preserve critical evidence which it alone is in a position to do.” (Cost v State, 417 Md 360, 382 [2010].) Today, a recording of the interrogation is evidence one would certainly expect the prosecution to produce. Unlike a couple of decades ago, the recording of events is simple and ubiquitous, with cameras recording almost everywhere today – on streets, in parking lots, schools, stores, public buildings, private businesses, hospitals, and jails. (See Christian, Ubiquitous Public Surveillance Puts Urban Residents Often On Camera, Houston Chronicle, Sept 4, 2014, . ) Indeed, the police make recordings when it is to their advantage. Police record people who are suspected of drunk driving; interviews with witnesses; and in select cases, and when they choose, interrogations with suspects. They record crime scenes, evidence collection, identification procedures and telephone calls (audio recording) defendants make from the jail. Dashboard cameras are now standard issue in most police cars, and wearable body cameras are quickly becoming a fixture on police uniforms (What Happens When Police Officers Wear Body Cameras, WSJ, Aug 14, 2014, ). 39 Given the ubiquity of recording, it is beyond reasonable to expect that when the police are engaged in the process of interrogating a defendant, which will often produce the most compelling evidence of guilt, that the police will produce a recording of the interrogation to support their testimony about what transpired. And when the police opt not to produce the most reliable and accurate evidence that was within their power and ability to produce, the logical and natural inference from that failure is that the recording would not have supported their claims. E. Requiring An Adverse Inference Instruction Under The Circumstances Of This Case Does Not Place A Constitutionally Based Duty Upon Police, Just As An Adverse Inference Instruction Does Not Place Such A Duty Upon A Party To Call A Particular Witness. The People may argue that no adverse inference charge was warranted because no recording was made (and therefore no recording could be produced), and the police are under no obligation to collect or create evidence for the defense (see People v Hayes, 17 NY3d 46 [2011] [police have no affirmative duty to obtain potentially exculpatory evidence for the defense; the failure to do so does not violate Brady]; People v Jardin, 88 NY2d 956, 958 [1996] [due process does not require the prosecution to gather evidence for defense testing]). However, the argument here is not that the prosecution was required to obtain or acquire evidence it did not have. To the contrary, the police created the evidence by conducting the interrogation, and despite the ability to do so, chose not to memorialize that evidence in an objective and indisputable way. 40 As the Supreme Court made clear, it is not a question of whether tangible evidence exists which was withheld, but rather, a question of whether “weaker and less satisfactory evidence” was relied upon, when evidence of a “more direct and explicit character” (i.e stronger evidence) was “within [the party’s] reach.” (Clifton, 45 US at 248.) And as missing evidence in the context of a missing witness shows, it is the party’s ability to produce the evidence (for indeed the witness’s testimony does not actually exist), along with the expectation that a “honest and therefore fearless” claimant would do so to support its claim, that is the foundation for the missing evidence instruction requested here. This is evidence not which the police have gathered or failed to gather, but rather, it is evidence the police created and could have memorialized in a complete and reliable form – evidence about which they later testified in an effort to reconstruct that which occurred. There is no claim that the police failed to affirmatively find or gather that which they did not already have. Thus, the argument presented here is in no way compromised by the fact that this Court has found no due process or Brady violation when the police fail to gather or obtain evidence for the defendant. The argument rejected in People v Hayes (17 NY3d 46) and People v Jardin (88 NY2d 956) is simply not made here. Mr. Durant is not contending the police had a constitutional duty to record the interrogation. Nor is Mr. Durant seeking suppression of the evidence, or dismissal 41 of the charges on that basis. Rather, the limited argument here is that Mr. Durant was entitled to the requested jury instruction because the prosecution had the ability to produce conclusive and indisputable evidence to support their claims about the interrogation and its product, but failed to do so. The reasoning underlying the cases that hold police have no constitutional duty to collect evidence for the defense shows how distant the defendants’ claims in those cases is from the argument made here. In California v Trombetta (467 US 479 [1984]), the Supreme Court held that the failure of police to take and secure a second sample breath test for later testing by the defense did not deprive a defendant of “the right to present a complete defense” and thus did not violate the Federal Constitution. That holding was adopted as a matter of New York constitutional law in People v Alvarez (70 NY2d 375 [1987]), where the defendant sought suppression of test results, arguing that the police failure to take and preserve a second breath sample for defense testing violated the Due Process Clause of the State Constitution. The rationale underlying the rejection of that claim actually supports Mr. Durant’s position here. In Alvarez, this Court pointed out that the Trombetta decision rested upon two propositions: “first, that the breathalyzer test is accurate, and second, that a defendant at trial can adequately explore malfunctions . . . or operator error by examining the machine, reviewing calibration and similar records, and questioning 42 the officer who administered the test.” (Id. at 380.) The reliability of the test result was further enhanced by the fact that under New York law (1) the People are required to prove “that the testing device was in proper working order at the time the test was administered to defendant . . . and that the chemicals used in conducting the test were of the proper kind and mixed in the proper portions,” and (2) “a defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of the machine.” (Id. [internal quotation marks and citations omitted].) Given those factors, which afford a meaningful opportunity to challenge the results, there is no basis for a rule that required the police to obtain additional evidence, especially given that the law provides for the defendant to have a personal physician administer an additional chemical test. In other words, there was no withholding of information about the evidence presented, the evidentiary threshold for admissibility of the test results assured the reliability of the results, and the defense was sufficiently armed with the means to challenge the accuracy of the test result. By contrast here, there are no scientific principles underlying the accuracy of the police testimony describing an interrogation, or the reliability of the statement it produced. And critically, the defendant has no means to explore or challenge the police testimony other than cross examination – for which he is largely unarmed. 43 A recording is really the only means to provide the reliability and accuracy assurances already in play and available to the defense in Alvarez. This Court has recognized that “[t]here is a difference between preserving evidence already within the possession of the prosecution and the entirely distinct obligation of affirmatively obtaining evidence for the benefit of a criminal defendant.” (Hayes, 17 NY3d at 51 [the Brady obligations extend only to that evidence which is in the hands of the People].) Here, the evidence was already created by the police. The police conducted the interrogation; the investigator asked questions, made statements and engaged in conversation which produced the statements attributed to Mr. Durant. It is the police who create and control the interrogation, and who, with a flip of a switch or a tap of a button, have the power to produce an objective, complete and indisputable record of what took place and what was said, and by whom. Even when witnesses testify in good faith, the limitations and fallibility of human memory mean there can be no assurance of accuracy, reliability or completeness of the testimony which purports to be a retelling of all that occurred. Without a recording, a defendant is left unable to challenge the accuracy or completeness of the testimony, and unable to explore the possible use of interrogation techniques that can produce involuntary or false confessions (see n 3, at 20). The evidence, about which the police later testified, was already created, but not recorded, or memorialized in a reliable way. In any 44 event, the question of whether the evidence actually exists and is in the hands of the prosecution is relevant for a determination of the prosecutor’s obligation under Brady, but not relevant as to whether an adverse inference charge is required. F. Argument Of Counsel In Summation Is Not An Adequate Substitute For The Adverse Inference Jury Instruction Mr. Durant Was Entitled To In This Case. Recently, this Court reversed a jury verdict, holding that counsel’s well- developed missing witness argument in summation, which stressed the missing witnesses and urged jurors to draw the strongest inference from their absence, could not substitute for the appropriate jury instruction that had been denied by the trial court (Devito, 22 NY3d 159). In other words, as the Court explained, the error could not be cured by summation. Courts, of course, are required to instruct juries on legal principles applicable to the case before them (CPL 300.10). The court, and not counsel, is the sole source of law for the jury. An instruction by the court carries the “imprimatur of a judge learned in the law” and has more force and effect that an argument by counsel (see Cost, 417 Md. at 381). Indeed, the jury was specifically admonished to accept the law only as the court gives it ( A 32-34, 221), and “not speculate on matters that are not in evidence” (A 33-34). A court is obligated to instruct jurors on inferences that they may properly draw from the proof, such as an adverse inference based upon a party’s failure to 45 call a witness who could be expected to provide favorable and material testimony (Gonzalez, 68 NY2d 424); a consciousness of guilt inference based upon the defendant’s refusal to take a chemical test (People v Thomas, 46 NY2d 100 [1978] [drunken driving case]); an inference that a defendant intends the natural consequences of his actions (People v Green, 50 NY2d 891 [1980]; or an inference of guilt based upon recent, exclusive and unexplained possession of stolen property (People v Baskerville, 60 NY2d 374 [1983]). A specific instruction is called for where there is reason to question the reliability of evidence the jury might misconstrue as particularly reliable (see People v Whalen, 59 NY2d 273, 278 -279 [1983] [“Out of a sense of fairness, attention should also be drawn to the possible unreliability of identification testimony”]), or where the proof is wholly circumstantial (see People v Sanchez, 61 NY2d 1022, 1024 [1984].) Where a jury may place undue reliance on ambiguous conduct of the defendant, such as flight or offering false alibi, the jury should be “closely instructed as to its weakness as an indication of guilt of the crime charged” (People v Yazum,13 NY2d 302, 304 [1963]). Without an adverse inference instruction, the jury has no authorization to make any inference regarding the failure to produce an electronic recording. And without such an instruction, especially given the investigator’s testimony that it was not the practice of the Rochester Police Department to make a recording of the 46 interrogation in non-homicide cases, the jury was left to believe it could not consider the failure to record the interrogation on the question of whether the statement was actually and voluntarily made or accurately reported. Such a belief certainly conflicts with the inference the jury was entitled to make here. G. Because Evidence Of What Was Purportedly Said By Mr. Durant During The Interrogation Strengthened The Prosecution’s Case On The Contested Issue Of Intent To Forcibly Steal, The Trial Court’s Error Cannot Be Deemed Harmless. At the time of sentencing, the trial judge said he “sat in this trial and listened to the proof,” and was “sort of surprised by the jury’s verdict.” He noted, however, that he was bound by it. (A 261.) The jury had deliberated two and a half hours, during which it requested to be re-instructed on the law of twice (A 243-244). The question before the jury was whether the People proved, beyond a reasonable doubt, that Mr. Durant possessed or shared an intent to forcibly steal. And the evidence on that question was not overwhelming as to make the prejudicial error in failing to charge harmless (see Crimmins, 36 NY2d 230). Although the statement attributed to Mr. Durant by Investigator Powell included a denial that Mr. Durant himself stole property from the complainant, other aspects of the statement provided a basis for the jury to conclude that Mr. Durant shared the intent of others to forcibly steal. The trial evidence in this case presented three different versions of events. The first was presented by the prosecution through the testimony of the 47 complainant, a man with a considerable criminal record, whose testimony regarding the incident was a bit sketchy, and whose claims at trial were sometimes inconsistent with the statements he made to the 911 operator. The complainant testified that as he was walking down North Clinton Street, he saw a group of teenagers and “something didn’t feel right. So I pulled out my phone and when I got there it just – I can’t explain exactly what happened. I know I called the police and told them I was robbed. And as I am talking to the police, they came back and robbed me again and took my phone.” (A59.) He explained that as he walked through the group, “somebody grabbed me from behind. I don’t know if I was knocked out – knocked unconscious, then, and only next thing I remember I am on the phone telling the police I just got robbed and the person is standing right here and he is not running.” (A 59-61.) The person who grabbed him from behind, he described, as wearing all red, and Mr. Durant was identified as that person (A 60, 65). “I was – the only thing I remember was talking to 911. I just got robbed and I was telling them what happened and then somebody came up, like, he is really calling the police, and they just came back, and the next thing I remember is the person in the red sweatshirt, they were beating me up, beating me up. I grabbed the person in the red sweatshirt and dragged him into the street and ran toward the fire station.” (A 61). The complainant claimed he had a hundred dollars in his wallet, which he said was in his backpack, although he later said it was in this pants pocket (A 63). 48 He said someone grabbed him from behind and took it out of his pants pocket. He explained that he knew it was the person in red because when he was calling 911, the man in red had it. Then he said: “I don’t know if when they took my wallet, when they took my wallet I don’t’ know if I was knocked out when I walked through the crowd. I remember calling 911 and saying help me, help me, I just got robbed, and they came back and started beating me again.” (A 63-64.) On cross-examination the complainant conceded that he had told the 911 operator that the man who just robbed him was standing right in front of him, and was wearing a black jacket and black hat (A 82). He had told the 911 operator that individual had a gun, but, he conceded at trial that he never saw a gun (A 96, 98- 99). Thus, there were some serious credibility issues with the complainant’s testimony. The defense maintained that Mr. Durant did not steal property or share others’ intent to steal. Mr. Durant was not in possession of stolen property when stopped by police a few minutes after the incident. There were no statements attributed to Mr. Durant or others that showed a shared intent to steal. Essentially, the defense was that Mr. Durant was just helping others who were engaged in a fight and he was not guilty of robbery (see People v Rivera, 184 AD2d 288 [1st Dept 1992]). 49 The testimony of Jasmine Durant, Everett Durant’s sister, supported the defense theory. Ms. Durant, who was with her brother at the time of the altercation, testified that they were walking down North Clinton Street when they saw the complainant run by being chased by four or five others. She and her brother stopped and talked to “Little C” on the corner, and after talking for about five minutes, the people who were chasing the complainant returned to the corner (A 166-176). Ms. Durant testified that “Little C” was not involved in the altercation (A 171). She saw the complainant and her brother exchange words, and then saw her brother hit and kick the complainant (A 175-176. By that time, Little C had left (A 173). According to the testimony of Jasmine Durant, her brother did not talk to anyone involved in the altercation before he hit the complainant. Rather, they were talking to Little C who was never involved in chasing the complainant or the altercation that followed. And at the time she observed one person in the group take the phone from the complainant, and other person in the group “[come] up with the wallet in his hands” and “money in his hands,” her brother was standing next to her (A 184). In summation, the prosecutor argued that the statement by Mr. Durant corroborated the testimony of the complainant (A 220). And to some extent it did, 50 but the critical and prejudicial aspect of the statement and Investigator Powell’s testimony about the interrogation, was on the issue of intent. The investigator’s testimony represented Mr. Durant as being a part of the group of individuals who acted in concert to attack and steal items from the complainant. The statement included the following. “I saw a black dude from the neighborhood named ‘Little C’ and his brothers. We saw this black dude on his cell phone walking northbound on North Clinton Ave. I saw ‘Little C’ and his brothers crowd the black dude on his cell phone. ‘Little C’ and his brothers jumped this guy. I punched this guy with the cell phone two – three times and I kicked him once.” (A 286-287). The statement allowed the jury to believe that Mr. Durant, “Little C” and his brothers were the ones who initially converged upon the complainant, with someone in the group taking the complainant’s cell phone and wallet, and that they did so after they had talked as a group. Thus, the statement attributed to Mr. Durant portrays a series of events, which if believed to be true by the jury, would provide a stronger evidentiary basis for finding that he shared in the others’ intent to steal because it indicated that Mr. Durant was with the group that attacked the complainant before the attack, and then together, they all sprang into action to jump the complainant and steal from him. On the other hand, the version offered by the defense had very different implication on the issue of intent than that presented by the investigator. Jasmine 51 Durant’s testimony showed Mr. Durant speaking only with “Little C” before the altercation, and showed that “Little C” did not then get involved in the fight. In other words, Mr. Durant was not part of the group that initially chased and attacked the complainant, and was not with the group before he joined in. There was no relationship shown to exist between Mr. Durant and the people partaking in the chase of, and initial altercation with, the complainant. And absent communication between Mr. Durant the others engaged in the attack upon the complainant, the evidence upon which to find that Mr. Durant possessed or shared an intent to steal, is significantly weaker. Thus, the testimony of Investigator Powell and the statement he attributed to Mr. Durant was likely significant to the jury’s verdict. Defense counsel told the jury in summation that they will never know what happened in the interrogation room because it was not recorded. (A 204). And absent an instruction regarding missing evidence, the jury was left with the impression that the law attaches no legal significance to the missing evidence. The requested adverse inference jury instruction would have permitted the jury to conclude, based on the failure to record, that the statement attributed to Mr. Durant was not as it was reported. And without that statement, the evidence that Mr. Durant acted in concert with those who attacked the complainant, and possessed or shared in an intent to forcibly steal, is significantly weaker. 52 H. Conclusion Playwright Arthur Miller, whose play The Crucible centers around “confessions” obtained from those accused of witchcraft in 1632 Salem, later observed in his quest for justice in modern times: “If one steps back and looks at this absolute reliance on confession from a world perspective, a certain equation emerges; namely, that the less evidence you have, the more vital the confession becomes for your case.” (Speech by Arthur Miller, Hartford forum, reprinted in Convicting the Innocent, at 89). The power of a “confession” to produce a guilty verdict is almost unmatched. Yet without a recording, that evidence is created in isolation, and remains hidden from view. Despite a myriad of well-developed rules of evidence tailored to keep unreliable evidence from juries, what is often the most powerful evidence in a prosecution remains significantly unencumbered by such safeguards. Indeed, false and unreliable confessions improperly credited by juries are a leading cause of wrongful convictions both nationally ( [last visited Sept. 18, 2014]) and in New York (NYSBA Task Force On Wrongful Convictions, Final Report [April 2009], 6). The United States Supreme Court has recognized that it is the State alone that is “responsible for establishing the isolated circumstances under which the interrogation takes place” and that only the state has the means to provide corroborated evidence of what occurred during the “incommunicado 53 interrogation.” (Miranda, 384 US at 475). Justice Black, writing for the Court in Ashcraft v Tennessee (322 US 143, 152-153 [1944]), observed seventy years ago that factual disputes “are an inescapable consequence of secret inquisitorial practices. And always, evidence concerning the inner details of secret inquisitions is weighted against an accused.” (Id. at 152 – 153.) However, with modern recording technology, which make recording ubiquitous, inexpensive and as simple to use as the touch of a button, the factual disputes of which Justice Black wrote are no longer “inescapable” and the inquisitions need no longer be secret. That which is often the most incriminating piece of evidence in a fact-finder’s eyes can be seen by judges, jury and defense counsel, where not only the exact words spoken will be subject to review, but also the gestures, suggestion, intonation, and demeanor will be available for direct review. Certainly, “an honest and therefore fearless claimant” with the ability to produce a recording would do so to support his claims, and where he fails to do so, without adequate explanation, that failure “permits the inference that its tenor is unfavorable to the party's cause" (Gonzalez, 68 NY2d at 427 [internal citations omitted].) 54 CONCLUSION Mr. Durant’s respectfully requests that his conviction be reversed, and a new trial ordered. Dated: September 24, 2014 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: JANET C. SOMES Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4329
