The People, Respondent,v.Trevor Anderson, Appellant.BriefN.Y.February 14, 2017To be argued by A. ALEXANDER DONN (15 minutes) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Respondent, ~against- TREVOR ANDERSON, Defendant~ Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT January 18,2017 LYNN W. L. FAHEY A. ALEXANDER DONN Attorneys for Defendant-Appellant Ill John Street, 9th Floor New York, N.Y. 10038 T: {212) 693-0085 F: (212) 693-0878 APL·2016-00051 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT ..................................................................... I ARGUMENT POINT I THE LOWER COURT DID MAKE A SANDOVAL RULING, THAT ERRONEOUS RULING PRESERVED APPELLANT'S ARGUMENT FOR APPEAL, AND THE ERROR WAS NOT HARMLESS .......... 1 POINT II DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S POWERPOINT PRESENTATION, WHICH INCLUDED, INTER ALIA, VERSIONS OF THE COMPLAINANT'S MEDICAL RECORDS THAT THE PROSECUTOR HAD ALTERED TO MAKE THEM APPEAR TO SUPPORT HIS THEORY REGARDING THE NUMBER OF TIMES THE COMPLAINANT WAS SHOT, EVEN THOUGH THE ACTUAL RECORDS CONTRADICTED THAT THEORY ..................... 6 CONCLUSION ............................................................................................. 15 TABLE OF AUTHORITIES CASES People v. Caban, 5 N.Y.3d 143 (2005) ......................................................... 14 People v. Clermont, 22 N.Y.3d 931 (2013) .................................................. 14 People v. Finch, 23 N.Y.3d 408 (2014) .......................................................... 3 People v. Grant, 7 N.Y.3d 421 (2006) ............................................................ 3 People v. Hawkins, 11 N.Y.3d 484 (2008) ..................................................... 3 People v. Ozuna, 7 N.Y.3d 913 (2006) ......................................................... 14 People v. Payne, 3 N.Y.3d 266 (2004) ............................................................ 3 People v. Sullivan, 68 N.Y.2d 495 (1986) ...................................................... 5 People v. Williams, 56 N.Y.2d 236 (1982) ..................................................... 3 State v. Rivera, 437 N.J. Super. 434 (App. Div. 2014) ............................ 11-12 State v. Walker, 182 Wash.2d 463 (Wash. 2015) ........................................... 8 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. VI .................................................................................. 6 U.S. Const., Amend. XIV ................................................................................ 6 N.Y. Const., Art. I, § 6 .................................................................................... 6 STATUTES Criminal Procedure Law§ 470.05 .................................................................. 3 11 OTHER AUTHORITY Ian Parker, Absolute PowerPoint, The New Yorker (May 28, 2001), available at http:/ /www.newyorker.com/magazine/200 1/05/28/absolute- powerpoint ..................................................................................................... 13 Elisabeth Bumiller, We Have Met the Enemy and He Is PowerPoint, N.Y. TIMES (April 26, 201 0), available at http://www.nytimes.com/20 10/04/27 /world/27powerpoint.html? _r=O ........ 12 M. Rowh, Can PowerPoint poison critical thinking? American Psychological Association website, available at http://www.apa.org/gradpsych/2012/0llpoison.aspx .................................... 12 1ll PRELIMINARY STATEMENT This Court granted appellant an extension until January 20, 2017, to file this Reply Brief, which is submitted in response to the Brief for Respondent. ARGUMENT POINT I THE LOWER COURT DID MAKE A SANDOVAL RULING, THAT ERRONEOUS RULING PRESERVED APPELLANT'S ARGUMENT FOR APPEAL, AND THE ERROR WAS NOT HARMLESS. The record flatly contradicts the People's contention that the trial court "did not make a Sandoval ruling" (Resp. Br. at 3, 20). The court explicitly stated, "illf [appellant] testifies, ... he can be asked about possession of two guns that somebody else saw. Not Molineux, but yes, Sandoval" (A 21; emphasis added). The People claim that "the court's statement that defendant 'can be asked' ... did not mean 'may be asked,' but instead meant 'could possibly be asked,"' and that the court "was merely articulating a potential basis for a Sandoval ruling that it might make at a later time, if asked by defendant to do so" (Resp. Br. at 24-25; emphasis added). But this is not what the court said, and the court removed any conceivable doubt about the meaning of its ruling when it added, "Not Molineux, "but yes, Sandoval" (A 21; emphasis added). The court's previous, unrelated statements regarding the "postpone[ ment]" of its Sandoval ruling clearly concerned only the People's request to cross-examine 1 appellant, if he testified, about an incident that took place when he was a police officer in Georgia (A 17-19). To rule on this request, it was necessary for the court to evaluate seven pages of "narratives and findings" in a disciplinary report, a potentially time-consuming process that apparently prompted the court's decision to delay that ruling (A 17-19). The court did not need to review any documents, however, before ruling that appellant could be impeached regarding his prior possession of two guns. Accordingly, there was no reason for the court to postpone that ruling, and it did not do so. The court's erroneous Sandoval ruling was plainly preserved for appellate review. Defense counsel argued that "whatever rulings existed at the first trial do not hold or bind this Court," requested a new Sandoval hearing, and asked that the People set forth exactly which prior bad acts they intended to cross-examine appellant about if he took the stand (A 7). Anticipating that, as they did at the first trial, the People would attempt to introduce Molineux evidence that appellant showed Perez "a couple of guns in his apartment," counsel asserted, "I do not know what purpose that serve[s], other than propensity .... We vehemently oppose that, and we have case law and are ready to argue and litigate that issue" (A 8-9). It was in response to these arguments- and after cutting counsel off as he prepared to address "the Sandoval application" (A 19) - that the court ruled that appellant could be cross-examined, pursuant to Sandoval, about his "possession of 2 two guns that somebody else saw" (A 21). Since the court's ruling was "in re[s]ponse" to counsel's protest and "expressly decided the question raised on appeal," the issue is preserved. C.P.L. 470.05(2). It was not necessary for counsel to object further. See People v. Finch, 23 N.Y.3d 408, 413 (2014) (lawyer need not repeat argument to preserve point); People v. Payne, 3 N.Y.3d 266, 273 (2004) (preservation not a "formality" that "bar[ s] an appeal even though the trial court .. . had a full opportunity to review the issue in question"). 1 In arguing that the court's Sandoval error was harmless, the People contend that appellant would not have taken the stand to testify that he intended to injure Brown-Gordon (Resp. Br. at 30-32), but this Court has clearly explained that speculation regarding whether the defendant would have testified if the Sandoval error had not occurred is not part of the harmless error analysis. People v. Grant, 7 N.Y.3d 421, 425 (2006) ("harmless-error analysis in the context of Sandoval 'does not involve speculation as to whether a defendant would have testified if the legal error had not occurred"') (quoting People v. Williams, 56 N.Y.2d 236, 240 (1982)). Instead, the analysis "assum[es]" that he would testify, and the error is harmless only if "there is nothing to which he could legitimately have testified" that would have resulted in an acquittal. Grant, 7 N.Y.3d at 425 (emphasis added). 1 The only Court of Appeals case relied on by the People for their preservation argument, People v. Hawkins, 11 N.Y.3d 484, 494 (2008), devoted only a single, cursory sentence to the Sandoval issue and did not include the facts relevant to preservation. 3 Here, appellant likely would have been acquitted of attempted murder if he had testified that, in a misguided effort to keep Brown-Gordon from Perez, he shot at Brown-Gordon with the intention of injuring or intimidating hi!ll. Had appellant offered such testimony, his credibility would have been significantly enhanced by his admission that he was the shooter, and his explanation would have seemed more plausible to the jury than the notion that he intended to take Brown-Gordon's life over a petty resentment. The People contend that, even if appellant would have testified regarding his intent, any Sandoval error was nevertheless harmless because the proof of the shooter's intent to kill was "overwhelming" (Resp. Br. at 32) and because "the element of intent was not in issue at [appellant's] trial" (Resp. Br. at 35; emphasis in original). But, as the jury recognized in requesting the definition of "intent" before rendering its verdict, the evidence on that issue was problematic: Brown- Gordon survived the shooting; none of the shots were aimed at his head or heart; the shooter chose not to fire a final shot at point-blank range after Brown-Gordon had fallen to the ground (even though nothing prevented him from doing so); and the shooter did not threaten to kill Brown-Gordon. Notably, the prosecutor's "intent to kill" argument depended heavily on numerous facts that proved only that the shooter intended to fire the gun, such as the "four deliberate things you have to do to make a gun ready to be fired," like 4 "put[ting] ammunition into the magazine," or the shooter's running "from the scene" (A 401, 403). But second-degree murder requires a "finding of a specific design to effect death -- not merely an intent to shoot." People v. Sullivan, 68 N.Y.2d 495, 502 (1986). The prosecutor also relied extensively on a "four gunshot" theory that was directly refuted by the medical evidence (seep. 7, post). Since the proof of "intent to kill" was not overwhelming, testimony by appellant conceding that he shot at Brown-Gordon, but denying that he intended to kill him, would likely have led to his acquittal of attempted murder. Finally, intent was very much at issue during appellant's trial, even absent any testimony from appellant regarding his intent or any related summation remarks by defense counsel. Indeed, the prosecutor's argument that appellant intended to kill Brown-Gordon occupied over four pages of trial transcript (A 400- 04) and eleven PowerPoint slides (A 550-60), and the jury's request for the definition of "intent" confirmed that this element of the crime was very much a part of their deliberations. Obviously, both the trial prosecutor and the jury recognized what the People now deny, that appellant's intent was very much in question. The People's argument that testimony by appellant regarding his intent could not have affected the outcome of the trial because defense counsel "never argued" that "the shooter's intent to kill had not been proven" (Resp. Br. at 35) makes no sense: defense counsel's summation would surely have addressed this 5 element of the crime if appellant had presented testimony squarely contradicting the People's theory that he acted with the intent to kill. Accordingly, based on the Sandoval error, this Court should reverse appellant's conviction on all counts and order a new trial. POINT II DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S POWERPOINT PRESENTATION, WHICH INCLUDED, INTER ALIA, VERSIONS OF THE COMPLAINANT'S MEDICAL RECORDS THAT THE PROSECUTOR HAD ALTERED TO MAKE THEM APPEAR TO SUPPORT HIS THEORY REGARDING THE NUMBER OF TIMES THE COMPLAINANT WAS SHOT, EVEN THOUGH THE ACTUAL RECORDS CONTRADICTED THAT THEORY. The prosecutor used a sophisticated computer program to alter the complainant's medical records in order to make them appear to support his preferred interpretation of evidence critical to the intent issue. This alone constituted such an egregious act of prosecutorial misconduct that counsel's failure to object rendered him ineffective. But that was not an isolated failure; counsel also neglected to object to a number of additional blatantly improper PowerPoint slides, including one that manipulated appellant's arrest photo so as to make him appear to be a target. Under these circumstances, appellant did not receive meaningful representation and his conviction must be reversed. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, § 6. 6 The People acknowledge that the evidence "support[ing]" the prosecutor's "four gunshot" theory was trial testimony (Resp. Br. at 51-52); Brown-Gordon's medical records explicitly stated that he had been shot only twice (A 593-94 ["SHOT TWICE" with "two ... gunshot wounds" and "two exit wounds"]; A 572 ["exit bullet wounds" on back]; see also App. Br. at 15-17). Yet the People maintain that appellant was not prejudiced by the prosecutor's display of two PowerPoint slides that appeared to be pages of Brown-Gordon's medical records, but were actually versions of those records that the prosecutor had altered to make it seem as if they supported his "four gunshot" theory (A 515, 559; see also App. Br. at 21-22, 25-26, 45-46).2 The prosecutor's manipulations of this key trial exhibit were extremely harmful in two ways: they literally changed the meaning of the medical records themselves, and they falsely supported Brown-Gordon's testimony regarding the number of times he had been shot with the apparent authority of hospital personnel's medical conclusions? As a result, the jury was left with the mistaken impression that Brown-Gordon's medical records corroborated his testimony that 2 In one slide, the prosecutor inserted captions identifying all four wounds as gunshots (A 515). In the other (A 559) he inserted the numbers "1 " "2" "3 " and "4" next to Brown-Gordon's ' ' ' ' wounds while telling the jury that appellant "didn't shoot [Brown-Gordon] just once, he shot him four times" (A 404). (The numbers inserted onto A 559 are most clearly visible on the CD of the PowerPoint, a copy of which was provided to the Court with appellant's opening brief.) 3 Brown-Gordon claimed that he had been shot four times (A 242). Although he admitted that he only felt two of shots (A 271 ), he "believe[ d]" he had been shot two additional times (A 242-43 ). 7 he had been shot four times, when in fact the records contradicted that testimony. See State v. Walker, 182 Wash.2d 463, 489 (Wash. 2015) ("superimpose[ing]" quote on defendant's booking photo "alter[ ed] both the quote and the photo;" "second problem [was] that the booking photo was never admitted into evidence in that form"). Critically, smce the jury did not vtew the medical records during its deliberations, the prosecutor did not mention his alterations to the jury, and the court did not provide any instruction whatsoever, there was no way for the jury to know that the documents displayed by the prosecutor were anything other than Brown-Gordon's actual medical records. Furthermore, the court's pre-summation instruction, which explained only that "[ w ]hat the lawyers say during their summation is not evidence" (RA 6; emphasis added), did nothing to disabuse the jury of the mistaken impression that the altered documents the prosecutor displayed were Brown-Gordon's actual medical records.4 The prosecutor's "four gunshot" theory was a key component of his argument that the shooter acted with the intent to kill. He told the jury that appellant intended to kill Brown-Gordon because he "shot the man four times at 4 Notably, although the People argue elsewhere that the jury "would certainly have known" that photographs of appellant and the crime scene "did not actually have text or symbols superimposed on them" (Resp. Br. at 58), they do not even attempt to make this argument regarding the prosecutor's manipulation of Brown-Gordon's medical records (Resp. Br. at 51- 54). 8 close range" (A 403), he "didn't shoot him just once, he shot him four times" (A 404), "(a]t least four of his bullets hit ... Brown-Gordon" (A 404), and "[t]wo of the bullets struck [Brown-Gordon] in the front, two in the back" (A 406). In coordination with such false assertions, he displayed a PowerPoint slide asserting, "Intended to kill: ... Number of shots: at least four bullets ... Victim shot twice in front and shot twice in back" (A 558; see also A 538 [Brown-Gordon "struck by deft's bullets four times"]). During deliberations, the jury asked for the definition of "intent," indicating that it was focusing on this element of the crime. Since the prosecutor's highly improper alterations changed the meaning of an important piece of evidence and the prosecutor relied on the altered evidence to prove his case, counsel's failure to object to these two slides alone constituted ineffective assistance of counsel. Appellant was also prejudiced by other unobjected-to slides in the PowerPoint presentation that sought to distract the jurors from their purpose, kept relevant information from them, and oversimplified nuanced subjects. The People do not deny that the text boxes the prosecutor added to appellant's arrest photo in the last PowerPoint slide (A 566) "pointed to appellant's face as if he were a target" (Resp. Br. at 4 7-51; App. Br. at 26, 44 ), but they maintain that it is unclear "how [appellant] was prejudiced by allegedly being made to look like 'a target"' (Resp. Br. at 49, 50). 9 An image that makes the defendant look like "a target" being viewed through the scope of a gun, however, improperly encourages the jury to "get" the defendant, rather than to evaluate the evidence carefully to determine whether the People have met their burden of proof as to each element of the charged crimes. This visually powerful and improper display, accompanied by the prosecutor's description of appellant's arrest photo as the "face of death" (A 406), was the last image the jurors saw before they began their deliberations. The People contend that appellant was not prejudiced by "the [prosecutor's] redaction" of "irrelevant calls" from Perez's cellphone records (Resp. Br. at 55, referring to A 511-13), but the redacted information was critical to the contested issue of Perez's credibility. On summation, defense counsel highlighted a discrepancy between Perez's testimony and the cellphone records themselves: Perez had "told [the jury] she made no calls," but the records established that she had made "close to 12 calls ... between 12:22 and 1 o'clock in the morning" (A 346, referring to A 741). As redacted by the prosecutor, however, Perez's cellphone records did not include all of those calls (A 511-13). Notably, during deliberations, the jury asked for and received a readback of Perez's entire testimony (A 444). Obviously, appellant was prejudiced when the prosecutor removed, from a trial exhibit, information that the defense had relied on and that 10 contradicted the sworn testimony of a key prosecution witness whose testimony the jury focused on during deliberations. The People defend the conclusory assertions in numerous other PowerPoint slides by falsely equating them with far more nuanced arguments that the slides did not contain. For example, the People maintain that a slide flatly asserting, "Evidence is reliable" (A 530) merely "presented to the jurors [a] conclusion[] that the prosecutor asserted they could draw, based on the evidence received at trial" (Resp. Br. at 64) and that, by repeatedly and unequivocally characterizing the People's witnesses as "credible" (A 533-36, 540, 543), the prosecutor "did no more than to argue that the jury should find evidence to be credible because it was corroborated by other evidence that was received at trial and formed a coherent, believable narrative" (Resp. Br. at 66-67). By bluntly urging the jurors to take him at his word regarding the credibility of his witnesses, however, these slides oversimplified the far more complicated fact-finding obligation with which the jurors had been charged. Because the very point of PowerPoint presentations is to simplify complex material, this is a commonly-noted problem with PowerPoint presentations. A New Jersey appellate court has cautioned that the "misleading" "oversimplifications" in a prosecutor's presentation provided "appealingly easy 'take a ways,' as those schooled in PowerPoint presentations aptly put it." State v. Rivera, 437 N.J. Super. 434, 463 11 (App. Div. 2014). Military officials, complaining that "[s]ome problems in the world are not bullet-izable," have denounced PowerPoint's "dangerous" oversimplification of complex issues. Elisabeth Bumiller, We Have Met the Enemy and He Is PowerPoint, N.Y. TIMES (April 26, 2010), available at http:/ /www.nytimes.com/20 10/04/27 /world/27powerpoint.html? r=O (last viewed January 13, 2017). And a data visualization expert has confirmed that "PowerPoint oversimplifies complex information." M. Rowh, Can PowerPoint poison critical thinking? American Psychological Association website, available at http://www.apa.org/gradpsych/2012/0llpoison.aspx (last viewed January 13, 2017). The People do not attempt to defend three slides that blatantly vouched for the overall strength of the People's case by stating, "Did defendant attempt to kill Brown-Gordon on March 14, 2010? Yes" (A 490) and "Defendant shot Erick Brown-Gordon" (A 531-32). Instead, they contend that the prosecutor's "spoken words" "made clear that his statements were only 'argument,'" that "the jury should apply its own common sense," and that the jury's conclusion should be "draw[n] from the evidence" (Resp. Br. at 67-68). Since visual presentations are so effective at communicating information, the prosecutor's oral remarks did not cure the impropriety (See App. Br. at 51-52 [citing cases and studies discussing the power of visual displays]). As one expert has explained, "PowerPoint gives you 12 the outcome, but it removes the process." Ian Parker, Absolute PowerPoint, The New Yorker (May 28, 2001 ), available at http:/ /www.neWYorker.com/ magazine/2001/05/28/absolute-powerpoint (last viewed January 13, 2017). There is no merit to the People's claim that defense counsel's failure to act should be excused because he had to "weigh the benefit of objecting" against the cost of"further drawing the jury's attention to the objectionable remark[s]" (Resp. Br. at 43, 54, 59-60). Defense counsel knew not only that the prosecutor was going to use a PowerPoint presentation during his summation, but also that it would be "a force to be reckoned with" (A 289). Therefore, either counsel saw the presentation before the prosecutor's summation began and chose not to register an objection, or he failed to recognize his duty to review the presentation before the jury saw it. Either way, his failure to act cannot be justified as a legitimate strategy connected to a fear of alienating the jury. Moreover, since counsel could have objected outside the presence of the jury, he would not have "risked undermining . . . his mistaken-identification defense," as the People maintain (Resp. Br. at 53- 54). The People's repeated contention that the vouching in the PowerPoint presentation was "responsive" to defense counsel's summation (Resp. Br. at 4, 46, 61-63) is obviously an after-the-fact justification because the PowerPoint presentation was created before counsel's summation even took place. 13 Furthermore, although the People cite twenty allegedly "disparag[ing]" comments by defense counsel as proof that the vouching was warranted (Resp. Br. at 61-65), the prosecutor registered only a single objection, which was overruled (A 358). Since the prosecutor did not successfully protest even one of counsel's supposedly improper remarks, those remarks cannot now be used to justify the prosecutor's own pre-planned misconduct. Finally, the People do not even address the PowerPoint slides that conveyed the prosecutor's conclusions regarding his witnesses' demeanor (A 495 ["Polite," "Direct answers," "Proper body language"], A 496 ["Calm," "No hostility," "No attitude"], A 500 ["Good recall," "Answered clearly and directly"]; see App. Br. at 18-19, 49-50). Defense counsel's failure to object to the prosecutor's significant alterations of substantive trial exhibits and to the numerous other improper Power Point slides deprived appellant of the effective assistance of counsel and significantly tainted the "fairness ofthe process as a whole." People v. Clermont, 22 N.Y.3d 931, 937 (2013); accord People v. Ozuna, 7 N.Y.3d 913, 915 (2006); People v. Caban, 5 N.Y.3d 143, 156 (2005). Accordingly, this Court should reverse appellant's conviction and order a new trial. 14 Dated: CONCLUSION FOR THE FOREGOING REASONS AND THOSE IN APPELLANT'S MAIN BRIEF, APPELLANT'S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant Appellate Advocates Ill John Street, 9th Floor New York, New York 10038 (212) 693-0085 By:A~Donn Of Counsel January 18, 2017 New York, New York 15 People v. Trevor Anderson, APL-2016-00051 STATE OF NEW YORK ss.: COUNTY OF NEW YORK A. Alexander Donn, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: That on January 18, 2017, the within Reply Brief for Defendant-Appellant was served upon Mr. Trevor Anderson, 12-A-0186, Eastern NY Correctional Facility, 30 Institution Rd., P.O. Box 338, Napanoch, New York 12458-03381, by depositing a true copy of the same 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 of New York. That on January 18, 2017, the within Reply Brief for Defendant-Appellant was served upon Hon. Eric Gonzalez, Acting District Attorney, Kings County, Renaissance Plaza, 350 Jay Street, Brooklyn, New York, 11201-2908, Attn: A.D.A. Terrence F. Heller, by depositing three (3) true copies of the same 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 of New York. Dated: New York, New York January 18, 2017 ~der Donn