The People, Respondent,v.Ronnell Jordan, Appellant.BriefN.Y.Feb 9, 2016 To be Argued by: KEVIN C. ADAM (10 MINUTES REQUESTED) New York Supreme Court Appellate Division Second Judicial Department THE PEOPLE OF THE STATE OF NEW YORK : : Respondents, : Kings County : Ind. No. 8020/11 -against- : AD2 No. 2012-10762 : TO BE HEARD ON THE Ronell Jordan : ORIGINAL RECORD : Defendant-Appellant. : REPLY BRIEF FOR DEFENDANT-APPELLANT Lynn W. L. Fahey Attorney for Defendant-Appellant APPELLATE ADVOCATES 111 JOHN ST., 9 th Fl. New York, New York 10038 (212) 693-0085 Kevin C. Adam James Trainor Louis O’Neill Pro bono Counsel for Defendant- Appellant WHITE & CASE LLP 1155 Avenue of the Americas New York, New York 10036 (212) 819-8200 TABLE OF CONTENTS I. Preliminary Statement................................................................................ 1 II. Introduction ................................................................................................ 1 III. Argument ................................................................................................... 2 A. The Order of Key Events at Trial Undermines the People’s Contention that the Prosecution Laid a Proper Foundation to Impeach Black with His Prior Omission ...................................................................... 2 B. The People Ignore ADA Reeves’ Failure to Provide the Jury with Any Specific Detail Regarding His Conversation with Black ...................... 6 C. The People Mischaracterize Appellant’s Position Regarding the Court’s Delegation of Its Authority to Exclude Otherwise-Competent Jurors ............................................................................................................. 8 IV. Conclusion ................................................................................................. 9 Certificate of Compliance ...................................................................................... 10 1 I. PRELIMINARY STATEMENT This Brief is submitted in reply to Respondent’s Response Brief, received on September 30, 2014. By order of the Court, dated October 17, 2014, Appellant Ronell Jordan’s time to serve his Reply Brief was extended to October 29, 2014. II. INTRODUCTION Appellant submits this Reply Brief because the People either overlook or mischaracterize three key issues on appeal. First, with respect to whether ADA Stepner laid a proper foundation to impeach Black with his prior omission, the People omit the timing of key events at trial. Most notably, the People disregard that Justice Goldberg stated from the bench that it was unclear whether Black’s omission was unnatural, even after Black had been impeached numerous times on cross-examination. Second, the People ignore ADA Reeves’ failure on direct- examination to provide any detail whatsoever regarding his conversation with Black. ADA Reeves was allowed to take the stand solely to provide that additional detail, and his failure to do so was particularly prejudicial to Appellant. And third, in an attempt to manufacture a preservation issue, the People mischaracterize Appellant’s argument regarding the trial court’s dismissal of jurors, mislabeling Appellant’s position as a challenge to the adequacy of the court’s excusal inquiry, as opposed to an improper delegation of judicial authority. 2 III. ARGUMENT A. The Order of Key Events at Trial Undermines the People’s Contention that the Prosecution Laid a Proper Foundation to Impeach Black with His Prior Omission By focusing on the issue of whether Black’s prior omission was unnatural, rather than whether the trial court reached that conclusion prior to Black’s impeachment, the People have side-stepped the key issue in this appeal: Whether ADA Stepner improperly impeached Black with a prior omission before establishing, and before Justice Goldberg ever concluded, that the omission was indeed unnatural. The People are simply unable to overcome the fact that ADA Stepner never established the foundational prerequisites outlined in Bornholdt, Savage, or Dawson before her first impeachment of Black on cross-examination. (Tr. 183:8- 16) (App. Br. at 32). Prior to impeaching Black, ADA Stepner never asked, let alone established, if Black’s attention was drawn to the issue of Mr. Jordan’s whereabouts when Black spoke with ADA Reeves. People v. Bornholdt, 33 N.Y.2d 75, 88 (1973) (holding impeachment by prior omission is admissible only if “at the prior time the witness’s attention was called to the matter”). Nor did she ask any questions that would have established that Black’s failure to volunteer exculpatory information, where he had no duty to do so, was “most unnatural” given the specific details of his conversation with ADA Reeves. People v. Savage, 3 50 N.Y.2d 673, 679 (1980) (providing narrow exception to Bornholdt only when impeaching party first establishes that an omission is “most unnatural”). And last, ADA Stepner failed to establish the foundational prerequisites outlined in Dawson for impeaching an alibi witness. People v. Dawson, 50 N.Y.2d 311, 318 (1980) (outlining four foundational hurdles that an impeaching party must clear prior to impeaching an alibi witness with a prior omission). Likewise, even prior to her second impeachment effort, ADA Stepner only asked a single question that could arguably relate to one of the four Dawson factors. (Tr. 183:17-21) (“Q: When you came into the DA’s office, you knew it was regarding the case in which the Defendant, Ronell Jordan, was charged in shooting Elijah Austin; you knew that, didn’t you?”). The case law, however, requires that, prior to impeaching Black as an alibi witness, ADA Stepner needed to first establish all four Dawson requirements. See, e.g., People v. Shelton, 98 A.D.3d 988, 992 (2d Dep’t 2012) (holding impeachment by prior omission was improper because just one of the four Dawson requirements was not established prior to impeachment); People v. Morris, 100 A.D.2d 600, 600 (2d Dep’t 1984). Further, the People cannot ignore Justice Goldberg’s warning that, even after the prosecution had impeached Black with his prior omission, it was not clear whether that omission was unnatural given the circumstances. Indeed, when ruling on whether ADA Reeves could be called to the stand as a rebuttal witness to 4 provide additional detail regarding his conversation with Black, Justice Goldberg explained that up until that point in trial he still was not convinced that Black’s omission was unnatural, but believed that decision was the responsibility of the jury: Now, the witness says he was never asked about [Mr. Jordan’s whereabouts] and maybe that’s why he never said it, but, on the other hand, because it was so important he might, it might have been reasonable and logical for the witness to have said it even if he wasn’t asked about it. That’s up to the jury. (Tr. 203:8-13) (App. Br. 37-39). But determining unnaturalness was a foundational prerequisite to allowing Black to be impeached with that omission on cross-examination. Surely, if Justice Goldberg had determined that ADA Stepner had laid a proper foundation, it would have been the jury’s task to weigh the value of that evidence. But here, Justice Goldberg acknowledged that he had not yet made the foundational determination that Black’s omission was unnatural, and he hoped that ADA Reeves’ testimony would remedy that problem. (Tr. 203:8-13). Similarly, when giving his jury instruction regarding Black’s alleged bribery attempt, Justice Goldberg explained that the testimony should only be used to evaluate whether Black was biased and thus testifying in favor of Appellant. (Tr. 234). But, again, the determination of whether Black had a “motive for acting to exonerate” Appellant was a prerequisite to impeaching Black on cross- 5 examination. Dawson, 50 N.Y.2d at 321. Justice Goldberg’s later statements conflict with the People’s assertion that all of the foundational prerequisites were properly established prior to Black’s earlier cross-examination impeachment. Faced with this foundational mishap, the People’s Response cherry-picks various portions of testimony from throughout the trial—with some fragments even coming after Black had already been impeached—to demonstrate why his omission was unnatural. (Opp. Br. at 14-15). The People’s belief that subsequent testimony can be used to correct earlier foundational errors, however, is unsupported by law. See, e.g., People v. Figueroa, 181 A.D.2d 690, 691, 580 N.Y.S.2d 789, 791 (2d Dep’t 1992) (holding impeachment by prior omission was improper when the “court failed to conduct an inquiry, and the prosecutor did not lay a proper foundation”). Not surprisingly, the People fail to cite a single “unnatural omission” impeachment case from the Second Department, let alone one in which a defendant’s sole witness was impeached without the prosecution first establishing a proper foundation. See Morris, 100 A.D.2d at 600 (holding prior-omission impeachment was improper where foundation was not established). Further, the People’s contention that the foundational error here was harmless because Black was permitted to explain his omission is off base. (Opp. Br. 17-18). Unlike in People v. Kitt, 126 A.D.2d 669 (2d Dep’t 1987) and People v. Mullins, 18 A.D.2d 737 (2d Dep’t 1986), here Appellant’s only witness was 6 impeached numerous times, absent foundation, on cross-examination and by means of a rebuttal witness. (App. Br. 30-44). Moreover, ADA Stepner turned back to Black’s impeachment on summation, suggesting that, given Black’s omission, the jury should disregard Black’s testimony in its entirety. (Tr. 277:4-278:24) (App. Br. 43-44). This Court has held that a prosecutor’s reliance on an improper prior- omission impeachment during summation, as ADA Stepner did here, is not a harmless error. Shelton, 98 A.D.3d at 992 (holding impeachment by prior omission was improper when “the prosecutor's summation went beyond the bounds of fair advocacy . . . characterizing the alibi witness, in effect, as having a flawed moral character, and being generally unworthy of belief”). These evidentiary errors lead to the improper impeachment of Appellant’s only witness, wholly undermining Appellant’s entire defense. B. The People Ignore ADA Reeves’ Failure to Provide the Jury with Any Specific Detail Regarding His Conversation with Black The People’s Response ignores the fact that when ADA Reeves was eventually called to the stand as a rebuttal witness, he failed to provide any detail whatsoever regarding the conversation he had with Black that gave rise to Black’s impeachment. But that was the very reason the trial court allowed ADA Reeves to take the stand. (Tr. 201:9-22; 202:3-204:13) (App. Br. 37-38). Given ADA Reeves’ failure to deliver any specific detail, his testimony provided no value to 7 the jury and served only to bolster ADA Stepner’s earlier impeachment efforts—a particularly prejudicial result for Appellant. People v. Alston, 158 A.D.2d 607, 607 (2d Dep’t 1990) (noting “prosecutor was improperly permitted” to call a rebuttal witness “who merely repeated certain testimony he had given on the People's direct case”). Nevertheless, the trial court elected not to respond in any way to the People’s failure to meet their offer of proof. See People v. Cronin, 60 N.Y.2d 430, 433 (2d Dep’t 1983) (noting trial court commits legal error when it fails to exercise discretion in response to a challenge to the admissibility of evidence). In sum, the trial court allowed ADA Reeves to take the stand in hopes that he could establish that Black’s omission was unnatural, even though that analysis was a prerequisite to Black’s earlier impeachment. If this Court chooses to accept the People’s position—that this decision was a proper exercise of the trial court’s discretion—the Court would be holding that subsequent testimony can be used to correct earlier foundational errors by the prosecution, regardless of the resulting prejudice to a criminal defendant. Said differently, the Court would be granting trial judges the ability to admit highly prejudicial evidence or testimony in hopes that later evidence or testimony can be applied retroactively to support its admissibility. But what if, as here, the later testimony fails to provide the detail that was promised? Or what if, as here, the later testimony fails to remedy the 8 earlier foundational deficiency? How will trial courts undo the prejudicial effect of allowing a witness to have been improperly impeached earlier in the trial? This is not and cannot be the rule. C. The People Mischaracterize Appellant’s Position Regarding the Court’s Delegation of Its Authority to Exclude Otherwise-Competent Jurors Last, the People’s Response Brief mischaracterizes Appellant’s challenge to the trial court’s dismissal of jurors. (Opp. Br. 24-28). In an attempt to manufacture a preservation argument, the People’s Response characterizes Appellant’s challenge to Justice Goldberg’s decision to have self-selected jurors report to the court’s clerk regarding their supposed hardships as a challenge to the sufficiency of the trial court’s voir dire inquiry. But Justice Goldberg never even attempted to evaluate those juror’s hardships. (Jury Selection 11:19-13:6). The problem here, rather, is that Justice Goldberg improperly delegated that hardship evaluation to the court’s clerk, outside the presence of Appellant. See, e.g., People v. Ahmed, 66 N.Y.2d 307, 310-12 (1985) (holding improper delegation violated defendant’s right to jury trial and constituted a mode-of-proceedings error). Justice Goldberg explained to potential jurors that if they believed they had a hardship, they could self-identify by raising their hand before stepping outside to speak to the court clerk. (Jury Selection 11-13). Based on each juror’s purported hardship, the court clerk would either assign the juror to another trial or send the 9 juror home without credit for serving. Id. By allowing otherwise-competent jurors to present their hardships to the court clerk, who served as the sole evaluator of those hardships, the trial court improperly delegated its judicial role. See, e.g., People v. Galdamez, 234 A.D.2d 608, 608 (2d Dep’t 1992). Improper delegation is a mode-of-proceedings error and not subject to the preservation requirement presented in the People’s Opposition Brief. Ahmed, 66 N.Y.2d at 310-12. 1 IV. CONCLUSION For the reasons stated above and those set forth in Appellant’s initial Brief, Mr. Jordan respectfully requests that this Court reverse his conviction and remand his case for a new trial. Respectfully Submitted, Lynn W. L. Fahey Attorney for Defendant-Appellant APPELLATE ADVOCATES 111 JOHN ST., 9 th Fl. New York, New York 10038 (212) 693-0085 Kevin C. Adam James Trainor Louis O’Neill Pro bono Counsel for Defendant-Appellant WHITE & CASE LLP 1155 Avenue of the Americas New York, New York 10036 (212) 819-8200 1 For the Court’s information, this issue is currently pending before the Court of Appeals in People v. King, 110 A.D.3d 1005 (2d Dep’t 2013), leave to appeal granted, 23 N.Y.3d 1022 (2014). 10 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line-spacing: Double The total number of words in the brief, including point headings and footnotes and excluding the cover page and pages containing the Table of Contents, Table of Authorities, Certificate of Compliance, and Statement Pursuant to C.P.L.R. § 5531 is 1,984.