The People, Appellant,v.Kharye Jarvis, Respondent.BriefN.Y.February 19, 2015STATE OF NEW YORK Brief Completed: To Be Argued By: Time Requested: June 12, 2014 Geoffrey Kaeuper 15 Minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- K.HARYE JARVIS, Appellant, Defendant-Respondent. BRIEF FOR APPELLANT APL- 2014-00067 SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Geoffrey Kaeuper Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I CONCLUSION Defendant was not deprived of effective assistance of counsel. - i - 11 1 2 4 9 19 TABLE OF AUTHORITIES CASES Henry v Poole, 409 F3d 48 (2d Cir 2005), cerl denied 547 US 1040 (2006) ............... 16 People v Baldi, 54 NY2d 137 (1981) ........... . . . ............. .... ............ 9, 14 People v Benevento, 91 NY2d 708 (1998) ......... ... .......... .. .............. .. . 10 People v Borrell, 12 NY3d 365 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v Caban, 5 NY3d 143 (2005) ............................................. 15 People v Cabrera, 243 AD2d 557 (2d Dept 1996) ... . ............................... 16 People v Crosdale, 103 AD3d 749 (2d Dept 2013), lvdenied2I NY3d 1003 (2013) . ....... 17 People v Flores, 84 NY2d 184 (1994) ...... .... ............. . .................... 15 People v Hobot, 84 NY2d 1021 (1995) .......... . ............................. 15, 18 People vJarvis, 98 AD3d 1323, lv denied20 NY3d 1012 (2013) . .. .. ..... . .. . .. . ... .. .. 2 People vJarvis, 101 AD3d 1700 (4th Dept 2012) .. ............................ ... ... 2 People v Jarvis, 202 AD2d 1036 (4th Dept 1994), lv denied 83 NY2d 968 (1994) . . . . . . . . . . . 2 People v Long, 81 AD2d 521 (1st Dept 1981) ........ . ......... ..... ............. .. 16 People v Modica, 64 NY3d 828 (1985) .. . .. . . . . . .. .. . . .. . .. . . .. . .. . .. . . .. . . . .. . . . 14 People v Pinchback, 82 NY2d 857 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v Smith, 82 NY2d 731 (1993) . .. .. . . . . . .. . . . . . .. . . . . .. . . . . .. .. . .. . . . . . . . .. 10 People v Taylor, 1 NY3d 174 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v Turner, 5 NY3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 STATUTES Penal Law§ 125.25 ... . .... .. .. . ... . ..... .. .. . .. . ...... . . ...... . . ...... ....... 2 - ll- Question: Answer of the Trial Court: Answer of the QUESTION PRESENTED Was defendant deprived of effective assistance of counsel? Not addressed. Appellate Division: Yes. 1 PRELIMINARY STATEMENT Defendant Kharye Jarvis was convicted, upon a jury verdict rendered on September 29, 1992, of two counts of intentional murder in the second degree (Penal Law § 125.25 [1]) in Monroe County Court (Hon. Charles T. Maloy, J.). Defendant was sentenced on October 28, 1992, to consecutive indeterminate terms of incarceration of 25 years to life for each murder. Defendant's conviction was unanimously affirmed on appeal (People v Jarvis, 202 AD2d 1036 [4th Dept 1994], lv denied 83 NY2d 968 [1994]). On September 28, 2012, however, the Appellate Division, Fourth Department, granted defendant's motion for a writ of error coram nobis because appellate counsel failed to argue ineffective assistance of trial counsel and the Appellate Division determined that that issue "may have merit" (People v Jarvis, 98 AD3d 1323, lv denied 20 NY3d 1012 [2013]; but see People v Borrell, 12 NY3d 365, 368 [2009] [failure to brief "potentially meritorious issues" not sufficient to establish ineffective assistance of appellate counsel]). The People' s motion for reargument was denied (People v Jarvis, 101 AD3d 1700 [4th Dept 2012]). On his de novo appeal, defendant argued that he was deprived of effective assistance of trial counsel. The Appellate Division, Fourth Department, by a vote of three to two, agreed with defendant, reversed his conviction, and ordered a new 2 trial. The two dissenting Justices would have affirmed, finding that defendant failed to meet his burden of showing the absence of strategic or other legitimate explanation for defense counsel's decisions. Leave to appeal was granted by the Hon. Gerald J. Whalen, Justice of the Appellate Division. 3 STATEMENT OF FACTS In 1992, a jury convicted defendant of two counts of intentional murder for fatally shooting Robert Horn, Jr. and Sherrill Prather on June 4, 1991 (Appendix [hereinafter "A"] 484-485). For those convictions, the court sentenced defendant to consecutive indeterminate terms of incarceration of 25 years to life (A 498). The proof at trial was as follows. For the People: On June 3, 1991, the day before the murders, defendant told his then- girlfriend, I R , that he had argued with Sherrill Prather (A 188-189). Defendant also told Charlotte Barnwell about the argument with Prather and further stated that "he was going to shoot that fucking nigger" (A 206-298). Defendant also told Barnwell that "if we were to tell, he would shot [sic] us, too" (A 211). As to the murders themselves, the People presented the testimony of four witnesses who saw portions of the crimes. Dorothy Wood testified that at approximately 1:20 A.M. on June 4, 1991, she heard voices and went out onto her porch on Bismark Terrace (A 62-64). She saw "two flashers from shots, and then saw someone stand up, stagger, and fall down in the street (A 66). She then saw "the same person" go to the man who had fallen and saw "three more flashers" (A 67). She went inside and called 911 (A 67). 4 Gary Turnipseed testified that he owed money to Robert Hom, so when Turnipseed saw Hom and Prather on A venue D on June 4, 1991, Hom took a check from Turnipseed and said he would keep it until he was repaid (A 75-76). When Turnipseed protested, Hom "smacked" him, and a fight ensued in which Hom and Prather punched him repeatedly and hit him with a garbage can (A 76). When Turnipseed eventually got away, he saw "two guys walking in the middle of the street" and then heard gunshots (A 76). He turned to see Prather get shot (A 77). Turnipseed ran to the home of Prather's mother and told her that he believed Prather had been shot (A 77 -78). John Wyche testified that at approximately 1:20 A.M. on June 4, 1991, he heard arguing outside involving a man named Gary and a check (A 168). When he went outside, he saw the beginning of a fight and then heard what sounded like trash cans being thrown on the ground (A 168). Shortly thereafter, he saw two men emerge from bushes between Avenue D and Pardee Street and begin "slinking along" (A 168). They went around the comer and "maybe a minute, minute and a half later [Wyche] heard a few shots" (A 169). He then saw one of the men who had fought with "Gary" run from Pardee Street toward Bismark Terrace, chased by someone in an Oakland Raider's jacket (A 169). The pursuer then raised his arm and Wyche saw "two flashers" and heard two "buggle-Iike 5 shots" (A 171). "The guy fell and he tried to crawl," but the shooter came up behind him and fired three or four more shots (A 171 ). The two men then ran down Bismark Terrace toward Clinton Avenue (A 171). Victor Simmons testified that at approximately 1:00 or 1:15 A.M. on June 4, 1991, he was at a girlfriend' s house on Bismark Terrace when he heard gunshots (A 300-301). As he left, walking on Bismark, he saw two men run by wearing "Raiders outfits" and then saw them "giving each other high fives" (A 301-303). One of them also tucked something into his waistband (A 302-303). When they ran past him, one of the men looked at him (A 302), and Simmons identified that man in court as defendant (A 305-306). As Simmons turned onto Remmington Street, he saw someone "lying out in the middle street hand just shaking and blood start coming out his mouth" (A 304). Simmons ran back to his girlfriend's house to report what he had seen (A 304). Police responded to the scene and found Prather lying on Pardee Street, and Horn lying on Bismark Terrace (A 85-86, 96). Both had multiple gunshot wounds and showed no vital signs (A 97). Prather had a gunshot wound to the back of his head and three to the back (A 264). He died of"exsanguination of blood lost as a result of gunshot wounds to the head and trunk area" (A 273). Horn had a gunshot wound to the back of the head and one to the chest (A 275). Those wounds caused his death (A 284). 6 After the murders, at approximately 2:00 or 3:00A.M. on June 4, 1991, defendant went to his sister's house, where his girlfriend R also was (A 185- 186). Defendant "was sweating and nervous" (A 187). R heard defendant's sister, Melissa Jarvis, ask defendant what was wrong and "he said he had just shot somebody. And she asked him who? And he said, Sherrill Prather" (A 187). R asked defendant who he was with, but he would not tell her (A 192). For the Defense: Carolyn G testified that on the evening of June 3, 1991, she was at home watching "Price Is Right" when defendant, a friend of her daughter, came over between 7:00 and 8:00P.M. (A 349-350). She spoke with him for a few minutes and then went into her room and fell asleep watching television (A 350). At approximately 1:50 A.M., she awoke when her boyfriend came home and she found that defendant was there with her daughter, W (A 350-351 ). Defendant and W then left at approximately 2:05A.M. (A 351-353). Without being asked what day of the week that was, Carolyn G offered that it was a Friday morning (A 351 ). On cross-examination, she then changed her testimony and claimed that this occurred on a Friday night into Saturday morning (A 355). She further testified that, on that Friday night, she watched "Most Wanted and then after that, I don't know, some kind of special program that they had on" (A 363). 7 W G testified that on June 3, 1991, defendant came over at approximately 10:00 P.M. and went directly into her room without talking to her mother (A 366-367, 374-375). At approximately 1:45 or 1:50 A.M., her mother's boyfriend came home, and she and defendant left at approximately 2:00 A.M. and went to defendant's sister's home (A 367-368, 370). Defendant's sister, Melissa Jarvis, testified that on June 4, 1991, sometime after 2:00A.M., defendant and W Ga came to her house (A 381). She claimed that she never spoke with defendant about events on the night of June 3 and early morning of June 4 because she "was not involved" (A 387). She also claimed that, when investigators spoke to her, she told them about defendant's arrival with W after 2:00A.M. on June 4 (A 394-396). For the People in Rebuttal: The People asked the court, and the court agreed, to take judicial notice that in 1991 June 3 and 4 fell on a Monday and Tuesday (A 397). The People then called an employee of the Fox Network who testified that "America's Most Wanted" airs on Fox on Friday nights and not on June 3, 1991 (A 404-405). Investigator Anthony Campione testified that, on September 19, 1991, he went to Melissa Jarvis's home and told her he was looking for defendant, who was involved in the murders of Prather and Horn (A 407). She said nothing to him about defendant's presence at her home on June 4, 1991 (A 408). 8 POINT I Defendant was not deprived of effective assistance of counsel. Defense counsel's overall representation at trial was excellent. He mounted a "coherent, cogent defense" (People v Taylor, 1 NY3d 174, 176 [2003]), attacking the prosecution's proof as to identity, and offering three witnesses in support of an alibi. He made appropriate motions and objections, and effectively cross-examined the prosecution's witnesses. Moreover, the effectiveness of the defense counsel presented is demonstrated in the difficulty the jury had despite the strength of the People's case. Witnesses for the prosecution testified that defendant had a dispute with one of the victims, that he said the day before that he was going to shoot him, and that he confessed to the shooting immediately afterwards. And a disinterested eye-witness identified defendant as one of the shooters. Notwithstanding that evidence, the jury twice told the court that it could not reach a verdict (A 478, 479). Thus, although the defense was not ultimately successful, it was well-grounded and defendant received "meaningful representation" (People v Baldi, 54 NY2d 137,147 [1981]). The Appellate Division majority, however, found that counsel committed two errors that rendered him ineffective: Counsel did not object when the prosecutor elicited previously precluded testimony, and counsel used what the 9 majority at the Appellate Division considered a "flawed alibi defense." But defense counsel had a legitimate explanation for his handling of the precluded testimony (see People v Benevento, 91 NY2d 708 [ 1998]). He objected that the prosecutor was essentially testifying for the witness, and then he used the witness ' s demeanor, her reluctance, and her failure of memory to argue in summation that none of her testimony could be believed. Whether or not, in hindsight, a different approach might appear preferable, counsel was not constitutionally ineffective for that choice. As to the alibi, counsel was simply not at fault when one of the witnesses gratuitously offered erroneous details. Witnesses sometimes do unexpected things. Presenting a legitimate alibi defense through imperfect witnesses does not constitute ineffective assistance of counsel (cf. People v Smith, 82 NY2d 731 [1993] ["Counsel's decision not to call a witness, whose testimony he assessed as weak, was a strategic legal decision which does not amount to ineffective assistance of counsel"]). A. Defense counsel's handlin& of Barnwell's testimony was a strateaic matter. In a mid-trial ruling, the court precluded the prosecution from introducing testimony that defendant threatened Charlotte Barnwell unless the issue of her delay in coming forward were raised on cross-examination, in which case the prosecutor could "on redirect, explain the delay in reporting" (A 160-161). The 10 prosecutor asked whether Barnwell could say '~ust in general" that she was scared, and the court answered: "But no mention of any threats unless it's raised on cross" (250). When Barnwell testified, unfortunately, the prosecutor evidently forgot this ruling, as she solicited testimony about the threat defendant made to Barnwell. Barnwell initially responded that defendant "said if we told, he would shoot us" (A 208). When the prosecutor asked her to speak up, Barnwell gave a vaguer response: "They said if we would have told, something would happen to us" (A 208). The prosecutor asked again what defendant said would happen to her, and Barnwell replied, "Shoot, kill, beat us up" (A 208). The prosecutor then asked which thing defendant said, and Barnwell said she did not remember (A 208). The following exchange then took place: "[Prosecutor]. A. Q. [Defense Counsel] [Prosecutor] THE COURT: Q. Miss Barnwell? Hum? I know this isn't easy for you, but could you tell the jury what it was that he said? Objection, your Honor. I believe that question was asked and answered. Judge, she's obviously having a great deal of difficulty. I'd ask for a little latitude. Yes, overruled. Miss Barnwell? 11 A. Q. [Defense Counsel] Yeah. We're almost finished. Could you tell the jury, please, what it was that he said he would do if you knew what happened and you told? Objection, your Honor. I don't believe that's what the witness said. The prosecutor's attempting to basically clarify the prosecutor's [sic] words and that's not the scenario we have, so we have basically the prosecutor putting in proof. I ask the witness be instructed to disregard the question and the prosecutor ask a more open-ended question" (A 208-209). The prosecutor then asked a different question, and Barnwell stated that she did not remember exactly what defendant said (A 210). Barnwell then ultimately testified, by means of a past recollection recorded, that defendant "said if we were to tell, he would shot [sic] us too" (A 210-211 ). The Appellate Division found that counsel erred by not immediately objecting on the ground that the evidence had been precluded. But if counsel had done so, the jury would have heard only the first question and answer, with Barnwell saying unequivocally that defendant "said if we told, he would shoot us" (A 208). And, if desired, the defense could then have rung that bell again in a curative instruction. 12 Instead, counsel attempted to use Barnwell's uncertainty and reluctance in testifying to undercut her credibility in general (see A 212-213). Barnwell was a shaky witness with whom the prosecutor had serious difficulty. In the questioning immediately proceeding the passages quoted above, Barnwell had similar difficulty testifying to what defendant said he would do on the day before the murder. It took the prosecutor eleven questions - with two objections by defense counsel - simply to get Barnwell to testify specifically that defendant said he was "going to shoot that fucking nigger" (A 206-208). Defense counsel, therefore, had good reason to believe that Barnwell would undercut her own credibility further with her continued reluctance and vacillations. Defense counsel evidently had some success in that regard. In summation, counsel argued that Barnwell's difficulties in testifying showed her to be unbelievable: "You cannot separate some of what she says from her manner in which she says it. This is a case where if you ask to have her testimony read back and then you listen to it, it might make some degree of sense. But you have to remember that when she was testifying, the Judge had to instruct her at one point to answer the question. And the second thing is the most critical piece of evidence she claims she has, she tells the District Attorney she forgot. Well, I forgot that. She had to go off and read her statement, then says, Oh, yeah, now I remember" (A 421). 13 Counsel then returned to the point near the end of the summation, saying that Barnwell was not believable: "You cannot separate what she says from the way she testified. And if you asked to have it read back, I ask you to remember the way she testified" (A 433). The prosecutor thought this point sufficiently effective to require a direct response, as she argued that Barnwell's demeanor on the stand was the product only of fear (A 44 7 -448). And the jurors seems to have been swayed somewhat by defense counsel's argument, as they remained deadlocked after a read-back of Barnwell's testimony (A 477-478). Thus, it was legitimate strategy to call attention to Barnwell's vacillations and her demeanor on the stand rather than requesting that the testimony be stricken and a curative instruction be given (see People v Pinchback, 82 NY2d 857 [1993] [not ineffective assistance where counsel failed to object to admission of previously suppressed statements]). Moreover, even if it was a mistake by counsel not to object on the grounds that the evidence had been precluded, it was not an error of such magnitude as to deprive defendant of his constitutional right to effective assistance of counsel. The test for effective assistance of counsel is one of" 'reasonable competence', not perfect representation" (People v Modica, 64 NY3d 828, 828 [ 1985], quoting Baldi, 54 NY2d at 146). Where the claim of ineffectiveness is based on a single 14 error or omission, therefore, reversal is warranted only where the error is "sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial" (People v Caban, 5 NY3d 143, 152 [2005] [citations omitted]). Such cases are "rare" and "such errors as overlooking a useful piece of evidence (Hobot), or failing to take maximum advantage of a Rosario violation (Flores), do not in themselves render counsel constitutionally ineffective where his or her overall perfonnance is adequate" (People v Turner, 5 NY3d 476, 480-481 [2005], citing People v Hobot, 84 NY2d 1021 [1995] and People v Flores, 84 NY2d 184 [1994]). Even if counsel should have objected on the ground that the testimony had previously been precluded, his vigorous use of the testimony instead to impeach Barnwell's credibility does not fall within that "rare" class of single errors or orruss10ns. B. Defense counsel cannot be faulted for flaws in Carolyn G 's testimony. The Appellate Division majority also found that counsel was ineffective based upon his presentation of an alibi defense. But any problems with the alibi defense were not the fault of defense counsel. Counsel directed his questioning of the alibi witnesses to the correct dates for the murder, the night of June 3 into the early morning of June 4. 1991 . Carolyn G however, gratuitously and 15 erroneously offered that this involved a Friday morning (A 351 ). On cross- examination, she changed her account to claim that the events occurred on a Friday night into Saturday morning (A 355). And she added that she had been watching "Most Wanted," a program that- as the prosecution established in rebuttal- aired on Friday nights (A 363, 404-405). June 3 and 4, 1991, however, fell on a Monday and Tuesday (A 397). Thus, the Appellate Division majority's reliance upon Henry v Poole (409 F3d 48 [2d Cir 2005], cert denied 547 US 1040 [2006]) was misplaced. Defense counsel here did not make the error that counsel in Henry did. In Henry, the crime occurred just after midnight on August 10, but when the defense attorney called the alibi witness, "instead of asking her about the early morning hours of Thursday, August 10, he asked her only about events on 'th[e] night' of August 10" (id. at 53). Thus, the defense attorney in Henry specifically introduced the error into the witness's testimony. The attorney himself elicited "an alibi for the wrong date" (id. at 64; see also People v Cabrera, 243 AD2d 557, 558 [2d Dept 1996] ["Defense counsel's questions to the witness were focused on Friday night, which resulted in the alibi witness testifying as to the defendant's whereabouts approximately 18 hours after the crime had occurred"]; People v Long, 81 AD2d 521 [1st Dept 1981] ["The questions of defendant's attorney were keyed to the 16 evening of July 22, thus prompting the alibi witnesses to testify to defendant's whereabouts 24 hours after the crime"]). But here, counsel did nothing wrong. Counsel did not elicit the erroneous testimony. The problem was of the witness's own making (cf People v Crosdale, 103 AD3d 749, 750 [2d Dept 2013], lv denied 21 NY3d 1003 [2013] [finding no ineffective assistance where counsel "elicited testimony from the defendant's witness supporting his alibi" but the witness displayed "confusion about the date that the police arrested the defendant"]). Counsel directed the attention of the witnesses to the correct time, the evening of June 3 and early morning of June 4. Counsel is not to blame for one of those witnesses gratuitously adding details that got her caught in a lie. To fault defense counsel for a witness's erroneous elaboration is simply unfair. Counsel cannot be held to account for every detail about which an alibi witness might be asked on cross-examination. As the dissenting Justices at the Appellate Division noted: "Under the majority's analysis, defense counsel would have to be prescient to know that the prosecutor was going to cross-examine one of the witnesses with respect to the television show and then establish that the witness was incorrect about the time that it aired." Accordingly, defendant was not deprived of meaningful representation of counsel. Counsel's handling of the prosecutor's eliciting previously precluded had a legitimate explanation and, even if it had been an error, it would not kind of 17 single error that would by itself rise to the level of a constitutional violation. Counsel's handling of the alibi defense was also perfectly legitimate. That the prosecutor was able to discredit one of the alibi witnesses was not the fault of defense counsel. Thus, weighing "all of the evidence ... in context and as of the time of representation" (People v Hobot, 84 NY2d 1021, 1022 [1995]), defendant was not deprived of a fair trial by ineffective assistance of counsel. 18 CONCLUSION The order of the Appellate Division should be reversed, and the judgment of conviction should be reinstated. Dated: June 12, 2014 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney 19 STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- KHARYE JARVIS, CPLR 2105 CERTIFICATION Defendant-Respondent. I, Geoffrey Kaeuper, ESQ., certify that I am an attorney admitted to practice in the State of New York, that I compared the documents contained in Appellant's Supplementary Appendix to the identical records contained in the stipulated Appendix before the Fourth Department, and that they are true, accurate, and complete copies of the same. DATED: June 12, 2014 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- KHARYE JARVIS, Defendant-Respondent. PDF CERTIFICATION I, GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: June 12, 2014 ' STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- KHARYE JARVIS, Defendant-Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Catherine Flaherty, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 12th day of June, 2014, deponent served three (3) copies ofBrief and Appendix for Appellant upon William G. Pixley, Esq., attorney for respondent in this action at 620 Park Avenue, No. 410, Rochester, New York 14607, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. efore me this f June, 2014. JOYCE HONOORF Notary 0 ublic, St~te Of New York ___;::~~---='--1:-~~----4:~· ~~·~County /1 My Commssston Expires September 30, 20 _