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. _______________________ __________________________________________________________________ REPLY BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANET C. SOMES Senior Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4329 Fax: (585) 753-4234 Date Completed: February 25, 2015 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii REPLY ARGUMENT 1 A. Contrary To The People’s Contention, The Rationale And Logic Underlying An Adverse Inference Instruction Lends Itself Perfectly To The Failure To Record The Interrogation In This Case. 1 B. Contrary To The People’s Contention, Denial Of A Fair Trial Is Not The Standard For Reversal. 9 CONCLUSION 11 i TABLE OF AUTHORITIES Federal Cases Arizona v Youngblood, 488 US 51 (1988) ............................................................................................. 7 Clewis v Texas, 386 US 707 (1967) ....................................................................................... 8, 9 Clifton v United States, 45 US 242 (1846) ..................................................................................... 1, 2, 7 State Cases Commonwealth v DiGiambattista, 442 Mass 423 (2004) .................................................................................... 4, 7 Noce v Kaufman, 2 NY2d 347 (1957) ........................................................................................... 1 People v Crimmins, 36 NY2d 230 (1975) ....................................................................................... 10 People v Doane, 208 AD2d 971 (3d Dept 1994) ......................................................................... 9 People v Erts, 73 NY2d 872 (1988) ................................................................................... 5, 10 People v Gonzalez, 68 NY2d 424 (1986) ................................................................................... 5, 10 People v Greaves, 94 NY2d 775 (1999) ....................................................................................... 10 People v Handy, 20 NY3d 663 (2013) ............................................................................... 5, 9, 10 People v Joseph, 86 NY2d 565 (1995) ......................................................................................... 9 People v Kitching, 78 NY2d 532 (1991) ....................................................................................... 10 ii People v Saunders, 64 NY2d 665 (1984) ................................................................................... 4, 10 People v Thomas, 22 NY3d 629 (2014) ......................................................................................... 8 People v Whalen, 59 NY2d 273 (1983) ......................................................................................... 4 1 REPLY ARGUMENT A. Contrary To The People’s Contention, The Rationale And Logic Underlying An Adverse Inference Instruction Lends Itself Perfectly To The Failure To Record The Interrogation In This Case. The People contend that because no evidence was destroyed or lost by the state, and no choice made to withhold actual existing available evidence at trial, the rationale underlying the adverse inference in cases of missing witnesses and unpreserved evidence does not “fit” when the police fail to record an interrogation. That response disregards the basic principles underlying an adverse inference instruction (see Clifton v United States, 45 US 242, 248 [1846]; Noce v Kaufman, 2 NY2d 347, 353 [1957]). When those principles are considered, the “fit” of an adverse inference instruction in cases where the police have opted not to record an interrogation despite the ability to easily do so, is a perfect one. The decision not to record is really a choice made to present “inferior” or less exacting evidence (which then places the police in a position to give a largely uncontestable and incomplete version of what occurred and was said), rather than “superior” and more exact evidence (which would show indisputably what happened and what was said). Thus, where the police have within their power the ability to produce the “higher degree” of proof, and instead produce evidence of an “inferior degree,” the fact finder is entitled to determine that the “highest and best 2 evidence going to the reality and truth of the transaction would not be favorable to the non-producing party.” (Clifton 45 US at 248.) And essentially, at its core, the failure to record an interrogation when able to do so does involve a failure to preserve evidence. Investigator Powell testified that during his 40 to 45 minute conversation with Mr. Durant, who was handcuffed to a table and had initially denied involvement in the crime, there was a “fair amount of discussion” that did not appear “anywhere.” (A 242.) The investigator also told Mr. Durant that he was facing a serious charge, that it could be in his best interests to talk with the investigator, that he “could help himself by telling the truth,” and that if he did not talk his side of the incident would never come out (A 133, 137.) Without a recording, critical and accurate evidence which would indisputably show what was said and done, and by whom, along with that “fair amount of discussion,” was not preserved. With recording equipment available just ten minutes away, the failure to record the interrogation was a choice – whether made individually by an officer or by those who on a departmental level set policies or practices – not to preserve critical evidence in an accurate, indisputable and complete way. While there was testimony in this case to support both an individual choice by the investigator (Investigator Powell’s testimony was that he chose to take Mr. Durant the “east side” Clinton Avenue office where no recording equipment was available, rather 3 than to the Public Safety Building recording equipment was available [A 134]), and a departmental practice (Investigator Powell said it was common practice to take a suspect to the “east side office” when the crime occurred on the “east side” except that homicide suspects were taken to the Public Safety Building [A142]), that is a distinction without significance. At the heart of each is a decision not to preserve an indisputable, accurate and complete record of what occurred and was said. And where the failure to record is a result of departmental practice, it does not establish that a recording could not have been made – it establishes only that the police have chosen, on an administrative or departmental level, not to do so. And where there is testimony that the failure to record is due to a departmental practice or policy, in the absence of an adverse inference instruction, a jury will not know that it is permitted (but not required) to conclude that the prosecution has not met its burden to prove the statement was either actually or voluntarily made, or accurately reported. Indeed, the People now argue that no adverse inference can fairly be drawn when the failure to record is based on departmental policy (Respondent’s Brief at 10). To the contrary, even where a departmental decision yields a policy or practice of not recording despite the means to do so, it can be a decision made in order to gain a tactical advantage. The failure of the police to preserve evidence of an interrogation when they have the means to do so is often a strategic decision which “merits the fact finder’s express consideration” and an 4 adverse inference instruction is the means to make jurors aware. (Commonwealth v DiGiambattista, 442 Mass 423, 446 [2004].) The People attempt to affiliate the instruction denied in this case with those denied in cases involving a trial court’s refusal to give an instruction that expands upon a legal principle already stated to the jury, cautions the jury to take extra care, highlights factors the jury may want to think about in reaching their conclusions, or explains a contention of a party (see e.g., People v Whalen, 59 NY2d 273, 278 [1983] [court was not required to give “expanded” identification instruction emphasizing that the jury give close scrutiny to the evidence]; People v Saunders, 64 NY2d 665, 667 [1984] [court not required to marshal the evidence to explain defendant’s contentions]). That attempt fails, however, because the instruction denied in the present case would have informed the jury that it may do something which it had not been told it could do, and something which other instructions may have appeared to prohibit – to find the People had not met their burden of proving the voluntariness or accuracy of that reported by police on the basis of the failure to record. And unlike cases in which an expanded or supplemental instruction on a specific point is denied, when this Court has ordered a new trial on the basis of the trial court’s failure to give a requested adverse inference instruction in the context of a missing witness, abuse of discretion language has not been used. Rather, this Court has found that where a defendant has demonstrated entitlement to a missing 5 witness instruction, the charge “must” be given (see People v Erts, 73 NY2d 872 [1988]) and to deny it is “error” (see e.g., People v Gonzalez, 68 NY2d 424, 431 [1986] [“it was error for the trial court to fail to instruct the jury that an unfavorable inference may be drawn from the People's failure to call the complainant's spouse”]). Nor does the exercise of an adverse inference by the jury require impermissible speculation, as the People contend it does (Respondent’s Brief at 11). The failure to produce the best possible evidence of a transaction when it is within the means of the non-producing party to do so simply gives reason to doubt the officer’s version of what transpired, whether it be the accuracy, veracity or completeness of it. That is the essence of an adverse inference instruction – a permissible inference or presumption made in response to a party’s failure to bring forth evidence one would expect that party to produce in support of that party’s position (see Gonzalez, 68 NY2d 424 [1986]). Rather than resort to speculation, the jury need only decide whether the police failed to produce the best evidence that was within their power to produce, and whether that failure warrants an inference that the best evidence would not have supported the investigator’s version of events. After all, it is the failure to preserve evidence of the interrogation in the first place that creates the need to question what actually transpired and was said (see People v Handy, 20 NY3d 663, 669 [2013] [“it was 6 State agents who, by destroying the video, created the need to speculate about its contents”].) The People forewarn that should an adverse inference instruction be required when police are able, but fail, to record an interrogation, there will be “no way to limit” the new rule to just the failure to record interrogations, and an adverse inference will be required every time the prosecution fails to present evidence which might tie the defendant to the crime, such as DNA, fingerprint, or photographic evidence (Respondent’s Brief at 11 – 12). While an adverse inference may be warranted at some point in the future when, with the advances in science and technology that allow such evidence to be produced inexpensively and easily, with a push of a button on equipment that is located in every police station, police car or pocket, and such testing would be dispositive on an important issue in the case, that time is not now. More significantly, the failure to do testing which may or may not implicate a defendant involves a wholly different set of circumstances and concerns than does a failure to record an interrogation, and the People’s prediction of an “unprecedented” expansion of adverse inference instructions through such analogy fails. Where the police have failed to conduct DNA or fingerprint testing, they have not actively created compelling evidence of guilt but failed to preserve that evidence in an accurate and reliable way. The failure to conduct DNA or 7 fingerprint testing does not serve as a means to allow the police to create evidence of guilt, withhold from view actual evidence of what was said and done, and then selectively summarize, modify and transform that evidence into a largely uncontestable version of what was said and done. To the contrary, where the police conduct an interrogation which produces a statement or admission later attributed to a defendant by police, the police have engaged in activity that produces strong evidence of guilt, which is then used against the defendant at trial. Without a recording, indisputable evidence of exactly that which was said and done, and by whom, is withheld and kept hidden from view. And when the police or prosecution fail to conduct forensic testing, they have not gained a tactical advantage over the defendant (see Arizona v Youngblood, 488 US 51, 57 [1988]), as is the case where the police fail to record an interrogation, which leaves them free to offer a subjective, false, misleading or incomplete version of events. So, unlike the failure to conduct forensic testing, not recording the interrogation permits the police to withhold from view accurate and reliable evidence of what actually occurred and was said –“superior” evidence – and instead offer “inferior” evidence. It is that failure to produce the superior evidence, and reliance upon the inferior, that permits the inference (Clifton,45 US at 248) as that “alone justifies skepticism of the officers' version of events” (DiGiambattista, 442 Mass at 448-449). The failure of the police to preserve 8 evidence of an interrogation when they have the means to do so is often a strategic decision which “merits the fact finder’s express consideration” and an adverse inference instruction is the means to make jurors aware of that (id. at 446.) Recording an interrogation will provide indisputable, accurate and critical details necessary to make a reliable determination of whether the prosecution has met its high burden of establishing the voluntariness of a defendant’s statement, as well as the accuracy of that which it is reported the defendant said. Recently, in People v Thomas (22 NY3d 629 [2014]), review of the video recorded interrogation revealed the defendant’s “confession” to have been involuntary as a matter of law. It showed that police investigators threatened to arrest the defendant’s wife, engaged in deception about the medical condition of the defendant’s son, and assured the defendant 67 times that what he had done to his son was accidental and 14 times that he would not be arrested. Those are the kind of critical details that remain hidden unless the interrogation is recorded. Whether an inculpatory statement is voluntary requires looking at the “totality of the circumstances" under which it came about (Clewis v Texas, 386 US 707, 708 [1967]). A totality of the circumstances surrounding a confession cannot be recreated by a police recounting of what occurred, and the police version given often boils down to a few sentences, hours of interrogation. And as the United States Supreme Court recognized: “As is almost invariably so in cases involving 9 confessions obtained through unobserved police interrogation, there is a conflict in the testimony as to the events surrounding the interrogations" (id.). The rationale underlying an adverse inference instruction fits perfectly to the decision, whether individually or institutionally made, to keep from view that which actually transpired and was said during an interrogation. And the availability of an adverse inference instruction will provide incentive for police departments to record interrogations (see Handy, 20 NY3d at 669), and at the same time assist to mitigate the harm caused by the failure to preserve an accurate and reliable record of that which was actually said and done during the interrogation (see id.; see also People v Doane, 208 AD2d 971 [3d Dept 1994] [adverse inference appropriate to rectify any harm caused by the prosecution’s failure to produce a report which may or may not have existed]). B. Contrary To The People’s Contention, Denial Of A Fair Trial Is Not The Standard For Reversal. The prosecution maintains that if the trial court erred in refusing to give the requested instruction, reversal is required only upon a showing that a fair trial was denied. (Respondent’s Brief at 13). That is wrong. This Court has repeatedly reversed based upon a trial court’s denial of an adverse inference instruction to which the defendant was entitled, with no consideration of whether the defendant’s right to a fair trial was violated. (See Handy, 20 NY3d 663 [reversal ordered where there was no finding the defendant was deprived of fair trial]; People v Joseph, 86 10 NY2d 565 [1995] [reversal ordered on basis of prejudice as the missing evidence may have provided support for the defense theory of the case]; Erts, 73 NY2d 872; Gonzalez, 68 NY2d 424 [reversal ordered where there was no finding the defendant was deprived of fair trial].) The harmless error analysis of People v Crimmins (36 NY2d 230 [1975]) is the standard to be applied in determining whether an erroneously denied adverse inference charge is reversible error (see People v Kitching, 78 NY2d 532 [1991]). The two cases cited by the prosecution in support of the contention that denial of a fair trial is the standard for reversal do not involve a trial court’s refusal to give an adverse inference instruction to which the defendant was entitled. Rather, those cases involve (1) a claimed but unfounded deficiency in the trial court’s marshalling of the evidence (Sauders, 64 NY2d 665), and (2) refusal to supplement the jury instruction with a specific admonishment that the indictment is not evidence (People v Greaves, 94 NY2d 775, 776 [1999]). For reasons explained in Appellant’s main brief, the error in this case was not harmless (Appellant’s Brief at 46 – 53).