In this extraordinary case, the Court found that the defendant was deprived of a fair trial by the combination of the trial court’s mishandling of hearsay objections and its refusal to give a missing witness charge as to a registered jailhouse informant.
A Queens County Criminal attorney said that while incarcerated and awaiting trial on an embezzlement charge, the defendant allegedly asked a fellow inmate to introduce him to people who, for money, would be willing to kill two witnesses who were expected to testify against him. The inmate turned out to be a registered jailhouse informant who, at the time, was working with police on another case in which he reported that a different prisoner had also solicited his help in hiring a hit man. In the words of the lead detective in that case, in return for his help, the informant was looking for a “get out of jail free card.”
After the informant alerted the police to the defendant’s alleged request, an investigation was begun involving undercover police officers posing as contract killers. The investigation ultimately led to the defendant’s arrest. At trial, the position of the defense was that it was the informant who had first suggested, and then insisted, that the defendant speak with “hit men,” and that the defendant had done so only because he was afraid of the informant.
The prosecution offered evidence at trial that, after learning of the defendant’s alleged interest in arranging a murder-for-hire, undercover officers posing as hit men made contact with him through the informant. The defendant agreed to speak with them over the telephone and to meet one face-to-face at Rikers Island. Notably in that regard, the correction officers testified that, when asking for a transfer, the defendant had explained that the informant was insisting that he speak with someone on the phone and meet with a stranger at the jail, and wanted him to say something that he did not want to say.
According to one correction officer to whom the defendant described his situation in greater detail, the defendant told him specifically that he did not want to hire anyone to make a “hit.” Significantly, the defendant’s conversations with the correction officers occurred before he was given any reason to believe that he was under investigation.
The undercover police officers tape recorded all of their conversations with the defendant. Many extended portions of the tapes were inaudible, but the prosecution claimed that the audible portions confirmed that the defendant wanted the witnesses killed and was willing to pay someone to do it. The defendant, on the other hand, offered a different interpretation of the recorded conversations. He testified that not only did he have no intention of harming the witnesses but also, having been told that the “hit men” would take no action without first receiving partial payment, he stalled them by never paying them anything despite their persistent demands for murder money.
The tapes confirm that the defendant repeatedly assured the undercover officers that his cousin was flying to New York with the money to pay them, but there was no evidence that the defendant even had a cousin, much less that any cousin of his was planning to come to New York with money. And it is undisputed that no money ever changed hands.
The jury nevertheless convicted the defendant of conspiracy in the second degree and criminal solicitation in the second degree. On appeal, the defendant argues, inter alia, that the police engaged in egregious misconduct which, in effect, manufactured the crime and thereby violated his due process rights. He also argues that the trial court made a number of erroneous rulings that collectively deprived him of a fair trial.
The Court rejected the defendant’s contention that the conduct of the police violated his due process rights. To the contrary, the reaction of the police to the information they received was entirely appropriate. A registered informant reported that an inmate in a city jail was attempting to arrange the murder of two witnesses. Upon receiving such information, the police were duty bound to protect the alleged targets and pursue an investigation. They did the first by notifying the targets and offering them police protection; they did the second by using undercover officers to make contact with the defendant to explore his intentions.
Contrary to the defendant’s contentions, there is no showing here of a due process violation as there was no evidence that the police set out to manufacture rather than investigate a crime, or that they engaged in criminal or improper conduct repugnant to a sense of justice, or that they persistently solicited the defendant to commit the crime in the face of his unwillingness to do so, or that their desire was solely to obtain a conviction rather than to prevent the crime and protect the alleged targets
To convict the defendant of the charged crimes of conspiracy in the second degree and criminal solicitation in the second degree, the People were required to prove beyond a reasonable doubt, inter alia, that the defendant actually intended that the named targets be killed. The defendant testified that he harbored no such intent and that he agreed to speak with the “hit men” only because the informant had continually pressured him to do so, at one point warning him that “if you jerk my friends, I will snap your head like a twig.”
Although the People offered no tape recording of the defendant ever saying that he wanted the alleged targets killed, and no testimony by the two undercover officers that either one ever heard the defendant actually make such a statement, the court permitted the People, over a hearsay objection, to elicit from Detective MacDonald the substance of his initial conversation with the informant. According to the detective, the informant told him that “he had a conversation with another individual who stated to him that if he knew anybody that would be able to kill— eliminate two people.” The detective continued: “Like I said, the conversation that we had was that he inquired—the defendant supposedly asked the informant if he knew anybody that would be willing, for money, to murder two people.” The prosecutor argued, and the court found, that this testimony was admissible for the nonhearsay purpose of proving the detective’s state of mind. Reckless endangerment could have been charged.
The Court agreed that the trial court had the discretion to receive this testimony, not for its truth, but to provide background information as to how and why the police pursued the investigation and made contact with the defendant. But, because this was the only evidence in the entire case that had the defendant expressing a desire to hire people to kill the witnesses, there was a real danger that, without proper guidance, the jury would take the testimony as proof that the defendant actually had made the statement, thereby establishing the decisive element of his intent. It therefore was essential that the court deliver a strong limiting instruction cautioning the jury that the testimony was offered solely for the purpose of explaining why the police did what they did and that it was not to be considered as any evidence that the defendant actually made any such statement to the informant. The court did not give the jury a limiting instruction, however, and that failure was serious and prejudicial error.
Hearsay is evidence of a statement, whether oral, written, or conveyed through intentional nonverbal conduct, that (1) was made other than by a witness while testifying at the proceeding at which the evidence is offered; (2) has a content that can be characterized as true or false; and (3) is offered in evidence to prove the truth of its contents. Evidence of a statement offered not to prove the truth of its contents but only to prove that the statement was made is not hearsay.
Moreover, in the course of his own testimony, the defendant recounted a conversation during which the informant described himself as “a very big drug dealer in Washington Heights.” The prosecutor again objected, maintaining that the testimony was “completely hearsay.” Although defense counsel argued that it was “very important what this person said to [the defendant] and how this person acted towards him that induced him into making these telephone calls,” the court sustained the prosecutor’s hearsay objection. This too was error.
The criminal court further erred in refusing to give the jury a missing witness charge with respect to the informant. At the outset of the trial, the defendant included the informant on his witness list, but apparently expected the prosecution to call him.
The court denied the application for a missing witness charge. Under the circumstances of this case, that was error.
After the People rested, the defendant produced evidence in support of his position that the confidential informant had coerced him into speaking with the hit men. On the witness stand, the Detective essentially agreed that the informant was “right there” or “nearby” the defendant during every telephone conversation about drug possession, the detective had with him, and the tapes essentially confirm that impression. Needless to say, the police witnesses could not testify as to what went on between the informant and the defendant at Rikers Island. Clearly, then, the defendant showed that the informant was knowledgeable about the principal issue in the case, and that he could provide first-hand, noncumulative testimony on that issue. Moreover, the law assumes that a confidential informant who plays a major role in the events leading to a defendant’s arrest would, if called, testify favorably to the prosecution and adversely to the defendant.
Once the defendant presented prima facie evidence that the confidential informant was knowledgeable about a material issue in the case and would be expected to give noncumulative testimony favorable to the prosecution, the burden shifted to the People to account for the informant’s absence. Here, the People essentially made two arguments in opposing the defendant’s application. First, they argued that the informant was unavailable to them because they did not know his whereabouts and were unable to locate him. Second, they argued that, in any event, the request for the missing witness charge, made after the People had rested and the defense case had begun, should be denied as untimely.
A request for a missing witness charge should be made “as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid substantial possibilities of surprise”. Here the request was made as the defense case, raising questions about the nature of the informant’s conduct, began. The court had more than enough time to exercise its discretion, and, in fact, postponed its decision until the close of evidence. Moreover, there was no substantial possibility that the prosecutor was actually surprised by the request so as to be unable effectively to tailor his trial strategy.
The informant was at the heart of this case from its inception. And, in any event, inasmuch as the prosecutor maintained that the People had lost all contact with the informant after his release from prison and were unable to locate him, they clearly suffered no prejudice as a result of the timing of the defendant’s application. The prosecutor did not suggest that, had the request been made before the People rested rather than after, he likely would have been more successful in locating and producing the informant. Thus, under the circumstances of this case, the defendant’s request for a missing witness charge was not properly denied as untimely.
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