Opinion
No. 2707/2010.
2012-05-18
The PEOPLE of the State of New York, Plaintiff, v. Manuel CHUYN, Defendant.
Stephanie Kaplan, Esquire, The Legal Aid Society, New York, for the defendant. Nicholas Viorst, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.
Stephanie Kaplan, Esquire, The Legal Aid Society, New York, for the defendant. Nicholas Viorst, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.
MARCY L. KAHN, J.
Defendant Manuel Chuyn, charged with one count of burglary in the second degree (PL § 140.25[2] ) and two counts of assault in the third degree (PL § 120.00[1] ), having lost his motion to suppress identification testimony of three eyewitnesses on constitutional grounds after a hearing and reopened hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), now seeks a pretrial judicial determination that the witnesses' pretrial identifications were unreliable, based upon a hearing at which the court would apply certain estimator and system variables
to preclude introduction of the witnesses' pretrial and in-court identifications at trial. The People have opposed defendant's motion in all respects. For the reasons stated below, defendant's motion is summarily denied.
Estimator variables are factors affecting the reliabilityof eyewitness identification testimony over which the statehas no control. System variables are factors affecting thereliability of eyewitness identification testimony which arecontrolled by law enforcement.
I. PROCEDURAL BACKGROUND
This is the court's fourth ruling on motions by this defendant to suppress or preclude the introduction at trial of the identification testimony of the three civilian eyewitnesses in this case. Knowledge is presumed of the general factual and procedural background of this case, as set forth in the decisions of this court issued on January 19, 2011 (Tr. of proceedings dated Jan. 19, 2011 [denying suppression after Wade hearing] [ Chuyn I ] ); December 13, 2011 (People v. Chuyn, 33 Misc.3d 1233(A), 2011 N.Y. slip op. 52228[U] [Sup.Ct. N.Y. County Dec. 13, 2011][granting reopening of Wade hearing to call civilian eyewitnesses based on newly discovered evidence, but limiting scope of hearing to suggestive conduct by police and denying right to call expert witness at independent source hearing, on facts presented][ Chuyn II ] ); and April 24, 2012 (People v. Chuyn, 35 Misc.3d 1216(A), 2012 N.Y. slip op. 50720[U] [Sup.Ct. N.Y. County Apr. 24, 2012][denying suppression after reopened Wade hearing and denying right to call expert witness at suggestiveness hearing][ Chuyn III ] ). A. Defendant's Original Motion In Limine
On September 9, 2011, defendant filed a motion in limine (Sept. 9, 2011 Motion), seeking a pretrial determination by the court of the reliability of the pretrial identifications of defendant made by the three eyewitnesses in this case, James Juliano, his wife, Wendy Juliano, and his daughter, Sandra Juliano. In the Sept. 9, 2011 Motion, defendant argued: 1) that he was entitled under the due process clauses of both the federal constitution (U.S. Const. amends. V and XIV) and the state constitution (N.Y. Const. art. I, § 6) to a pretrial judicial determination of the reliability of the out-of-court eyewitness identifications, regardless of whether those identifications were obtained through police-arranged procedures (Sept. 9, 2011 Motion, Part I); 2) alternatively, relying heavily on the recent decision of the New Jersey Supreme Court in State v. Chen, 208 N.J. 307 (2011)(recognizing “the suggestive effect that private actors can have on an eyewitness' recollection of events” and authorizing pretrial evidentiary hearings to assess reliability of eyewitness' testimony subjected to such influences), that the court should “exercise its gatekeeping function and discretionary power” to preclude the identification evidence as unreliable, on the ground that its prejudicial effect on defendant at trial would outweigh its probative value (Sept. 9, 2011 Motion, Part II); and 3) that the court's assessment of the reliability of the identification evidence should be based upon factors shown by current scientific research to affect the reliability of eyewitness identification (Sept. 9, 2011 Motion, Part III).
On January 11, 2012, the United States Supreme Court issued its decision in Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 181 L.Ed.2d 694 (Jan. 11, 2012), holding that the federal due process clause did not require preliminary judicial inquiry into the reliability of eyewitness identification that was not procured under unnecessarily suggestive circumstances arranged by law enforcement. ( Id. at 730). Thereafter, defendant withdrew the entirety of the Sept. 9, 2011 Motion in light of Perry. B. Defendant's Amended Motion In Limine
On April 13, 2012, defendant filed an amended motion in limine, again seeking a pretrial determination by the court of the reliability of the identification evidence and whether it should be precluded. Incorporating by reference Parts II and III of his original motion, and again relying in significant part on Chen, defendant urged the court to conduct a pretrial hearing “pursuant to its gatekeeping function” to determine “whether the probative value of the identification evidence in this case is substantially outweighed by the danger of prejudice and confusion created by that evidence.” (Letter to the court from Stephanie Kaplan, Esq. dated Apr. 13, 2012 [Def. Mot.], at 2). Defendant again sought preclusion of the identification evidence as unreliable, arguing that this court's assessment of the reliability of the identification evidence should be made based upon expert testimony as to scientific findings relating to: (1) the effects of stress and violence; (2) own-race bias; (3) post-event information, including unconscious transference and co-witness contamination; (4) confidence malleability, and the relationship between confidence and accuracy; (5) confirmation bias; (6) failure to give adequate instructions; (7) memory functions; and (8) the ability to recognize faces (collectively, eight factors). (Def. Mot., at 3).
On May 9, 2012, the People submitted their response, opposing the motion in all respects. (Letter to the court from Nicholas N. Viorst, Esq. dated May 8, 2012).
This decision and order resolves the entirety of defendant's in limine application.
II. DISCUSSION
A. Parties' Contentions
Defendant claims that the court should exercise its “gatekeeping role” to determine the reliability of each eyewitness's testimony as to his or her out-of-court identification at a pretrial hearing at which the court would determine whether the probative value of the identification testimony is substan-tially outweighed by the danger of prejudice and confusion. Such a judicial determination is necessary notwithstanding the extensive Wade hearing previously held, he claims, because other than defendant's presence at the scene shortly after the crime, there is no physical evidence connecting him to the crime, and also because the suggestive behavior of the first civilian witness, James Juliano, in connection with the show-up identi-fications made by the two other witnesses, Wendy Juliano and Sandra Juliano, could not be directly addressed at the Wade hearing. ( See Chuyn III, at *11, citing Perry v. New Hampshire, supra, 132 S.Ct. at 733;Chuyn II, at *11, citing People v. Marte, 12 N.Y.3d 583, 587–588 [2009] ).
The People respond that, in light of this court's
Wade rulings ( Chuyn I, at 29; Chuyn III, at *13) that the identifications by the three eyewitnesses are not subject to suppression on constitutional due process grounds, they are necessarily admissible at trial, and any residual questions regarding their reliability should be left to the jury. The People further observe that another justice has already granted, virtually in its entirety, the defendant's application to present expert eyewitness identification testimony at the trial.
B. Legal Basis for Evidentiary In Limine Rulings on Reliability
Contrary to the view expressed by the prosecution, however, this court's Wade rulings do not necessarily foreclose a challenge to the admissibility of the eyewitness identification evidence in this case on evidentiary grounds.
In its recent ruling in Perry v. New Hampshire, supra, the Supreme Court, addressing a similar situation involving civilian suggestiveness and holding that impermissibly suggestive identifications would not be inadmissible on due process grounds unless they were police-arranged (132 S.Ct. at 733), nonetheless recognized that such evidence might be held inadmissible under the “state and federal statutes and rules [which] ordinarily govern the admissibility of evidence....” ( Id., at 720). In anticipating Perry and rejecting the same argument on the same grounds some years earlier, the New York Court of Appeals in People v. Marte, supra, recognized, in dictum, the common law authority in our state for a court to exclude eyewitness evidence procured through suggestive civilian conduct as more prejudicial than probative. (People v. Marte, supra, 12 N.Y.3d at 589, 884 N.Y.S.2d 205, 912 N.E.2d 37, citing People v. Scarola, 71 N.Y.2d 769 [1988] ).
C. Applicable New York Evidentiary Standards Under the Marte/Scarola Exclusionary Rule
In Marte, the defendant sought judicial review solely onconstitutional grounds. ( People v. Marte, supra, 12 NY3d at588). Here, by contrast, defendant sought hearings on bothconstitutional and evidentiary grounds. Indeed, in Chuyn II, this court held that under New York common law rules of evidence, “consideration of the probative value and preju-dicial or confusing nature of evidence is generally avail-able at a pretrial hearing on motions in limine ” ( id., at *17, n. 6), and that “[i]ssues as to the admissibility of [identification] evidence having diminished reliability dueto the conduct of civilians may be addressed by means of apretrial motion in limine ” ( id., at *16, n. 4).
In doing so, the Court in Marte applied the well-settled principles it had earlier articulated in Scarola defining the limits of admissible evidence and acknowledging the trial court's essential role in safeguarding its proceedings against the introduction of prejudicial or misleading evidence:
In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule.... Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.... Not all relevant evidence is admissible as of right, however. Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury ....
(People v. Scarola, supra, 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 [citations omitted][emphasis added] ).
The Scarola Court did not specify whether a court making that discretionary determination was required to hold a hearing for that purpose, however.
The Marte/Scarola exclusionary rule was presaged in theearlier decision of the Appellate Division, FirstDepartment, in People v. Blackman, 110 A.D.2d 596, 597, 488 N.Y.S.2d 395 (1stDept.1985), in which the court upheld the action of thetrial judge in ordering a pretrial reliability hearing as amatter of discretion to test suggestive civilian conduct inconnection with an identification.
In Marte, the Court of Appeals acknowledged, as the prosecution contends, that outside of exclusionary rules designed to deter improper police conduct, the criminal justice system generally relies on juries to assess the reliability of eyewitnesses. (People v. Marte, supra, 12 N.Y.3d at 589, 884 N.Y.S.2d 205, 912 N.E.2d 37;see Perry v. New Hampshire, supra, 132 S.Ct. at 723 [apart from constitu-tional guarantees and evidentiary rules, “juries are assigned the task of determining the reliability of the evidence presented at trial”][citation omitted] ). Nonetheless, the Court of Appeals in Marte noted that its recent ruling in People v. LeGrand, 8 N.Y.3d 449, 452, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007)(mandating admission of appropriate expert testimony on reliability of eyewitness identification in cases turning on eyewitness identification accuracy with little or no corroborating evidence) reflected the Court's concern that “where a case depends wholly or largely on eyewitness identification, the risk of error may be unacceptably large,” and that additional safeguards against misidentification beyond the employment of expert testimony authorized in LeGrand might be required. (People v. Marte, 12 N.Y.3d at 589–590, 884 N.Y.S.2d 205, 912 N.E.2d 37). In that connection, the Court stated that it did “not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible.” ( Id., at 590, 884 N.Y.S.2d 205, 912 N.E.2d 37;see also People v. Eybergen, 130 Misc.2d 1, 13, 494 N.Y.S.2d 803 [Sup.Ct. Bronx County 1985][Lang, J.], aff'd,131 A.D.2d 981, 515 N.Y.S.2d 1003 [1st Dept.1987][following Blackman, supra, n. 3, trial court examined suggestive civilian behavior to determine whether conduct at issue “so influenced [the eyewitness] as to render her [pretrial] identification ... unreliable as a matter of law.”] ).
( Cf. Fed.R.Evid. 403 [providing for exclusion of relevant evidence if its probative value is substantially outweighed by danger of, inter alia, unfair prejudice, confusing the issues, misleading the jury]; State v. Chen, supra, 208 N.J. at 322, 327 [requiring court to conduct in limine reliability hearing to test suggestiveness of civilian conduct under New Jersey Rule of Evidence 403 (counterpart to Fed.R.Evid. 403), applying the following three-part standard: “(1) to obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification, (2) the State must then offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables, and (3) defendant has the burden of showing a very substantial likelihood of irreparable misidentification.”] ).
Therefore, the established appellate precedent of the Marte/Scarola exclusionary rule permits this court, as previously observed in Chuyn II, in the exercise of its discretion, to make a pretrial determination of the reliability of the eyewitness identification evidence proffered by the prosecution, notwithstanding the fact that such a determination is ordinarily the exclusive province of the jury. Whether it should do so in this case, however, is a separate issue. D. Availability of Marte/Scarola Hearing in This Case
Appellate courts in New York have not provided trial courts with a bright-line standard to guide their exercise of discretion in deciding whether to hold a Marte/Scarola in limine hearing. Given that, as a general proposition, all relevant evidence is admissible (Scarola, supra, 71 N.Y.2d at 777, 530 N.Y.S.2d 83, 525 N.E.2d 728), that identification evidence is clearly relevant, and that it is traditionally the role of the jury to assess reliability of evidence ( see Perry v. New Hampshire, supra, 132 S.Ct. at 728 [“the jury, not the judge, traditionally determines the reliability of evidence”]; People v. Marte, supra, 12 N.Y.3d at 589, 884 N.Y.S.2d 205, 912 N.E.2d 37 [“(o)rdinarily ... our system relies on juries to assess the reliability of eyewitnesses”] ), it seems reasonable to require that a defendant seeking such relief first make a prima facie showing that the identification evidence in question is so prejudicial and unreliable that it should be kept from the jury.Here, the facts as revealed at the Wade hearing are that the first witness, James Juliano, pointed out defendant to the police in front of the building where the incident took place and within 25 to 30 minutes of the crime. At an officer's instruction, he then hurriedly entered the building and excitedly called upstairs, summoning the other two witnesses, Wendy and Sandra Juliano, by shouting, in essence: “Wendy, Sandra, come downstairs; I think we have the guy.” (Tr. of proceedings dated Feb. 10, 2012, at 135). In a matter of seconds, the two female witnesses ran down the stairs and emerged from the building, and, upon first sight of defendant, spontaneously identified him. Thus, all three of the eyewitness identifications were made within 40 minutes of the incident and at the scene of the incident.
In other cases, appellate courts have upheld the trial court's exercise of discretion in denying reliability hearings in cases with far more suggestive civilian conduct. In Marte itself, some six months after the victim was robbed and shot near his home, the victim's fourteen year-old sister met with the defendant, who admitted that he “shot someone on this block.” (People v. Marte, supra, 12 N.Y.3d at 585, 884 N.Y.S.2d 205, 912 N.E.2d 37). The victim's sister kept silent for some weeks thereafter, but then told the victim that she thought she knew who shot him and showed him the defendant's picture. ( Id.). She then wrote a letter to the victim, quoting the defendant's admission and describing the defendant as “[t]he kid who everyone thinks shot you.” ( Id. at 586, 884 N.Y.S.2d 205, 912 N.E.2d 37). The victim and his sister then went to the police, who arranged a line-up at which the victim selected the defendant. ( Id.).
While recognizing that, in some cases, a pretrial determination of reliability would be warranted, the Marte Court, in dictum, opined that “[t]he eyewitness testimony in this case was not of that description.” ( Id., at 590, 884 N.Y.S.2d 205, 912 N.E.2d 37;see also People v. Wallace, 239 A.D.2d 272, 273, 658 N.Y.S.2d 843 [1st Dept.], lv. denied,90 N.Y.2d 912 [1997] [nearly one month after robbery at store, eyewitness identified defendant from single photograph selected out of photo array of shoplifters and at show-up arranged by store security personnel; court's failure to hold reliability hearing upheld as proper exercise of discretion]; People v. Dunnigan, 188 A.D.2d 1052, 592 N.Y.S.2d 207 [4th Dept.1992, lv. denied,81 N.Y.2d 884 [1993] [three days after robbery, eyewitness identified the defendant from an array of 33 bank camera photographs shown by bank security investigator; court's failure to hold reliability hearing upheld as proper exercise of discretion] ). Further, even under the New Jersey standard in Chen, which defendant urges upon this court, a defendant must “present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification.” (State v. Chen, supra, 208 N.J. at 327).
These appellate cases make clear that the level of suggestiveness must be very great, and the danger of misidentification highly likely, in order to require a judicial intrusion into the jury's sphere to determine the reliability of witness testimony. This conclusion comports with the fact that the jury in most cases can be furnished with sufficient safeguards and tools to insure that it does not place “undue weight on eyewitness testimony of questionable reliability.” (Perry v. New Hampshire, supra, 132 S.Ct. at 719). Those safeguards and tools include cross-examination, the arguments of counsel, and an appropriately informative jury charge from the court. ( Id.; Marte, 12 N.Y.3d at 589, 884 N.Y.S.2d 205, 912 N.E.2d 37). They also include the aid of expert testimony on eyewitness identification, presenting the results of scientific studies on the fallibility of memory and perception. (Marte, 12 N.Y.3d at 589, 884 N.Y.S.2d 205, 912 N.E.2d 37, citing People v. LeGrand, supra ).
In this case, having heard the testimony of all four police witnesses in the case ( Chuyn I, at 2) as well as all three civilian witnesses ( Chuyn III, at *2), this court is satisfied that the eyewitness evidence in this case is significantly more reliable than that presented in Marte, Wallace or Dunnigan. Furthermore, defendant's application to present expert eyewitness identification testimony at the trial has been granted, virtually in its entirety, thus providing the jury with the tools deemed necessary by the Court of Appeals in LeGrand and Marte to enable it to assess fairly the reliability of the eyewitness identification evidence presented to it. Additionally, this court will be able to fashion an appropriate jury charge instructing the jury to take into account any appropriate system and estimator variables as it considers the eyewitness testimony.
This court recently delivered such a charge in People v. Edwin Santiago, Ind. No. 1133/10 (April 2012).
For all of these reasons, defendant has failed to make a prima facie showing that the identification evidence in question is so prejudicial and unreliable that it should be kept from the jury or that the jury will be without the tools and safeguards necessary to make a fair and informed judgment as to the reliability of the eyewitness identification testimony presented to it. Defendant has additionally failed to demonstrate that this court requires the aid of expert testimony in order to make this determination. ( See Chuyn II, at *17).
In any event, as defendant has failed to demonstrate need for a pretrial reliability determination or hearing in this case, there is no need for an expert to testify at such a hearing. Accordingly, his motion for a Marte/Scarola determination in limine as to the reliability of the eyewitness identifications is denied.
This court recently heard expert testimony on the same issues on two occasions in People v. Edwin Santiago, supra. ( See also Benton, et al., Eyewitness Memory Is Still Not a Common Sense: Comparing Jurors, Judge and Law Enforcement to Experts, Appl. Cognit. Psychol. 20:115–129 [2006] [observing that “(j)udges under(stand) the research substantially better than jurors.”] ).
IV. CONCLUSION
For the reasons stated, defendant's motion is denied in its entirety.
The foregoing constitutes the decision and order of this court.