People v. Norcott

OPINION OF THE COURT

Friedman, J.

The primary question on this appeal, involving a robbery that resulted in a vicious murder, is whether the trial court committed reversible error when it precluded defense counsel from eliciting testimony that was intended to show that the prosecution’s main witness had a motive to lie to implicate defendant in the crime. We find that we need not determine whether the challenged ruling was erroneous because the record before us makes it clear, beyond a reasonable doubt, that the witness’s motive to lie was readily apparent to the jury, and, therefore, the court’s error, if any, was harmless.

Defendant was charged with having acted in concert with two accomplices to rob and murder a man named Yousef Mohammed. According to the People, defendant and his accomplices lured Mohammed to an apartment by proposing to buy drugs from him. When Mohammed came to the apartment to conduct the proposed drug deal, defendant and his accomplices allegedly robbed and killed him. At defendant’s trial, the prosecution’s main witness was Xanderia Burnett, the tenant of the upper Manhattan apartment where the murder occurred. The substance of Burnett’s direct testimony, as well as certain other evidence presented at trial, is summarized below.

In early January of 1996, Burnett happened to see defendant, an old acquaintance of hers, at a bar. After talking to Burnett for a while, defendant offered to pay her $1,500 if she would allow him to use her apartment to “meet up” with a “friend.” Burnett, who understood that defendant wanted to close a drug deal in her apartment, agreed to the proposal. Shortly thereafter, defendant and a confederate of his, whom Burnett knew as “Moe,” moved into Burnett’s apartment, apparently intending to stay until the deal could be transacted.

About a week and a half after defendant and Moe moved into Burnett’s apartment, defendant told Burnett that “his friend was in town,” and that defendant wanted Burnett “to go down to meet his friend.” Burnett agreed, and defendant drove Moe and Burnett (whose two-year-old son was with her at the time) from Burnett’s apartment building to a downtown hotel. The group proceeded to one of the hotel rooms, where defendant knocked on the door. A man opened the door, and the group entered the room. The man who opened the door was introduced to Burnett as “Yousef.” During the visit, which lasted from 45 minutes to an hour, defendant and Yousef engaged in a conversation that Burnett did not overhear. Defendant and his group then returned to Burnett’s apartment.

At some point while defendant was living in the apartment, Burnett observed him sitting in her living room, loading bullets into a handgun. She told him to get the gun out of the apartment, and he said he would do so.

On January 22, 1996, shortly after the day of the gun-loading incident, defendant, Moe and “Farrow,” a second confederate of defendant, drove from Burnett’s apartment down to Yousef’s hotel in two cars, with Burnett in one of the cars. Yousef then joined the group, whereupon they all drove back to Burnett’s apartment. After the group arrived at the apartment, Burnett and defendant left, at defendant’s suggestion, to visit defendant’s parole officer, while Yousef, Moe and Farrow remained behind in the apartment.

When Burnett and defendant returned to the apartment from the parole office, Moe and Farrow were sitting in the living room watching television, but Yousef was nowhere in sight. Burnett asked where Yousef was, and received no answer. Defendant, on the other hand, asked Moe and Farrow if they had gotten “the key,” whereupon the three men went into a bedroom, closing the door behind them. After several minutes, the men emerged from the bedroom, and defendant demanded that Burnett accompany him to the victim’s hotel. Burnett did so, and, on the way to the hotel, defendant told Burnett that he wanted her to help him “carry some drugs back.” Upon arriving at the hotel, Burnett saw defendant use a key to let himself into the victim’s hotel room, after which he located and removed a number of taped-up “little brown lunch bags,” which defendant said contained the drugs he wanted.

When Burnett and defendant returned to her apartment from the hotel, defendant, Moe and Farrow again went into the bedroom where they had previously met, and spent about 15 minutes in the room with the door closed. After the men emerged from the bedroom, they left the door ajar, and Burnett noticed Yousefs body lying face-down on the bed in that room, with a bleeding head wound. Burnett asked what happened, and defendant told her to “calm down” or else she would “be dead too.” Burnett then saw defendant, Moe and Farrow divide the bags from Yousefs hotel room among themselves. When it became dark, defendant demanded that Burnett help remove the body from the apartment, which she did. She then cleaned up the blood in the apartment, also at defendant’s demand.

Defendant continued to live in Burnett’s apartment until the April following the murder, when he was arrested for an unrelated parole violation. Even after defendant was gone, Burnett never reported the murder to the police on her own initiative because, she said, she feared what defendant might do to her or her family. For the same reason, she moved out of state in January 1997, after she learned that defendant was being released from jail.

On January 31, 1996, a police detective investigating the murder of Mohammed (whose body had been discovered on January 23) visited Burnett’s apartment.¹ Defendant answered the door, and told the detective that Burnett was not home, whereupon the detective left. The detective returned to the apartment on February 2, 1996, and this time spoke to Burnett; he also observed defendant within the dwelling. Although Burnett told the detective defendant’s name at that time, she did not disclose anything relating to the homicide because defendant had threatened to harm her son (who was in the apartment at the time) if she did.

In July 1998, the same detective who had interviewed Burnett shortly after the murder visited Burnett at her new home in another state. The detective began by showing Burnett photographs of defendant and Mohammed, among other people; she admitted that she recognized defendant, but denied that she recognized Mohammed. After some further discussion (the substance of which was not disclosed to the jury), Burnett “broke down” and began to cry. She then accompanied the detective to a police station, where, after being read her Miranda rights, she made a statement implicating defendant, Moe and Farrow in Mohammed’s murder. Defendant was arrested the following October; Moe and Farrow have never been apprehended.

In addition to the foregoing evidence, the People presented telephone records demonstrating, among other things, that calls were exchanged during the relevant period between Mohammed and the Florida home of defendant’s parents. The People also presented papers found in Mohammed’s hotel room that contained handwritten notations of defendant’s name and of telephone numbers where he could be reached. Based on such evidence, and additional evidence that, among other things, connected defendant to Mohammed, Moe and Farrow, and placed him at Burnett’s apartment during the time period of the murder, the jury convicted defendant of second-degree murder and first-degree robbery. On defendant’s appeal, we affirm the judgment of conviction.

We first address defendant’s contention that the trial court committed reversible error in an evidentiary ruling it made during defense counsel’s cross-examination of Burnett. The ruling in question precluded the defense from eliciting testimony to the effect that Burnett, when she was interviewed out of state by the police detective in July 1998, implicated defendant in Mohammed’s murder only after the detective told her that defendant had already accused her of complicity in the crime. After the court disallowed this line of inquiry in the questioning of Burnett, defense counsel asked to be permitted to pursue it upon cross-examination of the detective; this request was also denied.

It is defendant’s theory that evidence that the detective told Burnett that defendant had accused her of complicity in the robbery/murder was crucial impeachment material. As defendant sees it, bringing this information out at trial would have demonstrated to the jury that Burnett had a specific motive to lie to implicate defendant in the crime, namely, to shift blame from herself to the man she had been told was her accuser (whether or not he had actually made such an accusation).² As defendant points out, a witness’s “reason to fabricate is never collateral and may not be excluded on that ground” (People v Hudy, 73 NY2d 40, 56 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; see also Davis v Alaska, 415 US 308, 316-317 [1974] [“exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination”]). While defendant (who did not present any evidence at trial) readily concedes that the information in question was not admissible as evidence of Burnett’s complicity in the robbery/murder, defendant contends that the court could have obviated any prejudice to the People in this respect by instructing the jury not to consider the information for that purpose. Therefore, defendant argues, the court, in imposing the challenged limitation on the scope of his counsel’s cross-examination, not only abused its discretion in applying the law of evidence, but also violated his right to confront his accuser under the federal and state constitutions (US Const Amends VI, XIV; NY Const, art I, § 6).

We find this argument unavailing, even if the challenged ruling was erroneous. An error of constitutional dimension at a criminal trial, such as defendant claims to have occurred here, is considered harmless if “there is no reasonable possibility that the error might have contributed to defendant’s conviction and ... it was thus harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237 [1975], citing Chapman v California, 386 US 18 [1967], and Fahy v Connecticut, 375 US 85 [1963]; see also People v Kello, 96 NY2d 740, 743 [2001]; People v Robinson, 89 NY2d 648, 657 [1997]; People v Eastman, 85 NY2d 265, 276 [1995]). Even under this standard, the error posited by defendant was harmless.

By no means do we deny the centrality of Burnett’s testimony to the People’s case; as the prosecutor stated in his summation, “she’s absolutely the key witness.” Nonetheless, the conclusion that the court’s error, if any, was harmless beyond a reasonable doubt becomes inescapable when one considers that the motive Burnett had to accuse defendant — her natural desire to deflect suspicion of complicity in the murder away from herself, and toward another — was already manifest to the jury without the precluded line of inquiry.

As should be clear from the foregoing summary of Burnett’s direct testimony, her entire account is pregnant with the jeopardy in which she found herself as a result of this sordid crime. According to Burnett, the murder was committed in her own apartment, by men she had invited in to engage in what she expected to be a different kind of criminal transaction (i.e., a drug sale); after the victim had been murdered, she helped to remove the body, and cleansed the apartment of the victim’s blood; she never reported the murder to the police on her own initiative; and, when the police initially questioned her, she did not disclose her knowledge that a murder had been committed in her apartment. As the dissent acknowledges, the question of whether Burnett was an accomplice to the robbery and murder was submitted to the jury based on the undisputed facts “that [Burnett] was aware of and facilitated the drug deal, [that] the murder occurred in her apartment, [that] she admitted that she was present shortly after the fatal shot, and . . . [that] she [admittedly] helped clean up and dispose of the body.” Given that all of these facts had been received into evidence, it was simply impossible for the jury not to have been aware of the danger posed to Burnett by the investigation of this crime, and of her motive to say anything, whether true or false, to save herself from the specter of a lengthy prison sentence.

Not only was Burnett’s general motive to blame others for the robb ery/murder obvious to the jury from her own direct testimony, it would have been equally obvious to the jury that this witness had a specific motive to accuse defendant (and his two accomplices) in particular. If Burnett were to succeed in deflecting suspicion away from herself by accusing others, that accusation would have to have been directed at a person or persons who could plausibly be implicated in the wrongdoing. There is no dispute that the only people who fell into this category were defendant and his accomplices. Although the defense denies that defendant intended to rob or murder Mohammed, defendant’s trial counsel, in his summation, did not attempt to persuade the jury that the People had not proven that defendant lived at Burnett’s apartment from January to April of 1996 (in fact, as previously indicated, a detective saw and spoke to defendant at the apartment nine days after the murder, and again saw defendant at the apartment two days later).³ Nor did defense counsel attempt to persuade the jury that the People had not proven that defendant and his accomplices were involved in planning to transact a drug deal with Mohammed in Burnett’s apartment on January 22, 1996; that defendant helped himself to Mohammed’s drugs after the murder took place; or that defendant subsequently disposed of Mohammed’s body with his accomplices. Given that the foregoing facts were not in serious dispute at trial, defendant and his accomplices were the only people whom Burnett could plausibly accuse of responsibility for Mohammed’s death, and Burnett’s powerful incentive to accuse defendant was clear as day to the jury from the testimony it actually heard.

In fact, the record shows that defendant’s trial counsel, in his summation, pointed out that Burnett had a specific motive to implicate defendant in the robbery and murder, and the challenged ruling limiting the scope of cross-examination presented no impediment to that argument. “Let’s see if there is some possible self-interests that could give [Burnett] a reason for not being truthful about what went down inside her house,” defense counsel suggested to the jury. Counsel subsequently elaborated on this point as follows:

“[W]ould she have a motive to lie about this? Because I said even someone who’s a professional liar can tell the truth if there’s no reason to lie. What you realize is not only is she a general liar, not only is her story different, but she has to lie here too. That once again it’s in her self-interests to lie and we know that, that’s when she shines as a creator of fiction.

“It’s July 1998, the cops come around and ask her some questions, no Corby [defendant] around, no threats, she still lies but they don’t leave and they’re showing her pictures of Corby. How’s she gonna get out of it now? Tell the truth, tell them she and Corby went down for the drugs? Tell them that she and Corby decided to share in the loot? Tell them she was an active participant, not a helpless victim who just stuck her finger into it a little? Tell them that she got herself involved in a major drug ripoff? Not a prayer. Who knows where that leads, maybe you end up sitting in that chair [i.e., as the accused]. No, it was Corby, officer, I was just doing it to get a little taste. Oh, no, he made me do it. Why couldn’t I talk to you before? Well, he had my daughter, my son. Her motive to lie against Norcott Corby, well look what happened, she’s read her rights and says it’s Corby who did this, I just participated a tiny bit and she goes home, she’s released. The master has lied herself out of a jail station — a police station again .... She knows just how much to say about drugs, all her associates have taught her for years. She gets out by dumping on him, gotta make it good, gotta admit the little bit that doesn’t really hurt you. And as long as she keeps it up, as long as she repeats it here in court, no one [is] really scrutinizing her, and it works, as long as you all buy it.”

Thus, contrary to the dissent’s assertion, informing the jury that Burnett had been told of an accusation against her by defendant was not “necessary to challenge the reason or motive for [Burnett] to identify defendant as the murderer after a two-year silence.” The dissent’s claim that the challenged ruling “force[d] the defense to question Ms. Burnett’s motive to lie indirectly” is contradicted by defense counsel’s closing argument.

In sum, allowing the defense to bring out that Burnett accused defendant of the murder after she was informed of defendant’s alleged accusation against her would not have added materially to the jury’s understanding of Burnett’s dire situation, and of the pressures that gave her reason to try to shift blame for Mohammed’s death away from herself and toward defendant. Thus, giving full effect to the principle that “the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness” (Delaware v Van Arsdall, 475 US 673, 680 [1986] [emphasis added]), we conclude that any error in the challenged ruling was harmless. The obviousness of Burnett’s motive to accuse defendant renders the challenged limitation of the scope of cross-examination harmless beyond a reasonable doubt, and readily distinguishes the instant case from the cases on which defendant principally relies, where the witness’s motive to lie was not similarly obvious from the testimony the jury actually heard (see Davis v Alaska, 415 US 308 [1974], supra [defense was precluded from bringing out the probationary status, based on a confidential juvenile delinquency adjudication, of prosecution’s main witness]; People v Rios, 223 AD2d 390 [1996], appeal withdrawn 87 NY2d 1024 [1996] [defendant was precluded from bringing out, for the purpose of showing possible police bias in charging him with selling drugs, that, inter alia, the other participant in the transaction had told the arresting officer that her husband was a police officer]; People v Ashner, 190 AD2d 238, 247 [1993] [defense was precluded from bringing out that prosecution’s main witness “had both a need and an opportunity to engage in the thefts at least equal to the defendant’s”]).

As previously indicated, we find it unnecessary to decide whether the challenged evidentiary ruling was erroneous. We observe, however, that a strong argument could be made that the ruling was correct, both as a matter of the law of evidence and as a matter of constitutional law under the Confrontation Clause, along the same lines that lead us to conclude that the ruling was harmless to the defense beyond a reasonable doubt. Again, the witness’s specific motive to lie was abundantly clear to the jury without interjecting the additional information that defendant proposed to bring out on cross-examination. It thus would appear that the court appropriately exercised its discretion to exclude the detective’s statement to Burnett that defendant had implicated her in the crime, for introducing such evidence would invite the jury to speculate on the truth of defendant’s alleged accusation of Burnett. As even the dissent acknowledges, “the proffered cross-examination might have also allowed the defense to indirectly raise the issue of whether Ms. Burnett was the true murderer.” Of course, there was no admissible, nonhearsay evidence to prove the truth of this accusation, even if it was made. Therefore, to permit speculation on this matter might have seriously prejudiced the People’s case. Thus, it seems to us that the court’s ruling may very well have been within the bounds of its discretion, under both the Confrontation Clause and the law of evidence, to exclude from cross-examination any matter whose “probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]; see also Delaware v Van Arsdall, 475 US at 679 [a trial judge retains “wide latitude” under the Confrontation Clause to impose reasonable limits on the scope of cross-examination, “based on concerns about, among other things, . . . prejudice, confusion of the issues, ... or interrogation that is . . . only marginally relevant”]).

Defendant’s remaining arguments are without merit. Contrary to defendant’s contention, the verdict was based on legally sufficient evidence, and fully comported with the weight of the evidence. In this regard, we note that, from the uncontradicted evidence presented to the jury of defendant’s conduct before and after Mohammed’s death, the inference was inescapable that defendant was, at a minimum, an intentional participant in the robbery that foreseeably resulted in the killing of Mohammed (see People v McLeod, 168 AD2d 461 [1990], lv denied 77 NY2d 964 [1991]). Finally, the court properly denied defendant’s request to charge the jury that in order to be found guilty, defendant must have formed the necessary mental culpability for robbery prior to the time that the coperpetrators committed the robbery. Defendant’s request inaccurately precluded the possibility that defendant could have formed the requisite intent at the moment of the robbery (see People v Patinos, 249 AD2d 153 [1998], lv denied 92 NY2d 903 [1998]), and improperly implied that only the other perpetrators committed the robbery. In any event, the court’s charge as given conveyed the proper, standard (see Penal Law § 20.00; People v Slacks, 90 NY2d 850 [1997]; People v Wood, 299 AD2d 739, 740 [2002], lv denied 99 NY2d 621 [2003]).

Accordingly, the judgment of the Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered April 20, 2000, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first degree, and sentencing him to concurrent terms of 25 years to life and 12 1/2 to 25 years, should be affirmed.

1 . It appears that the police first connected Mohammed to Burnett’s apartment from information provided by a bank branch listed on handwritten notes the police found in his hotel room after the body was discovered and identified. The bank had sent an order of checks for Mohammed to him in care of Burnett at the apartment. Burnett testified that she received such checks in the mail on the day of the murder; she further testified that she wrote “Return to Sender” on the envelope containing the checks and put it back in the mailbox.

2 . It is not clear whether defendant actually made the accusation of which the detective informed Burnett. For that reason, defense counsel suggested that, if his proposed line of inquiry were permitted, the court instruct the jury that there was no proof that defendant had ever made such an accusation.

3 . Thus, the People did not depend on Burnett’s testimony to place defendant at the apartment where the murder took place. We note that, through, inter alia, telephone records and the notes found in Mohammed’s apartment, the People also connected defendant to Mohammed, Moe and Farrow independent of Burnett’s testimony.