People v. Smith

OPINION OF THE COURT

Moule, J. P.

Defendant appeals from a judgment of conviction entered upon a jury verdict which found her guilty of the crime of conspiracy in the first degree.

On September 12, 1975 James Butler, Margaret Alvey, Gladys Pounds and defendant were indicted for the crimes of conspiracy in the first degree and murder in the second degree in connection with the death of John Yuhas. On April 29, 1976 the court ordered separate trials of the defendants. Defendant’s trial commenced on May 17, 1976 and on June 18, 1976 the jury returned a verdict of not guilty on the murder count; the jury was unable to reach a verdict on the conspiracy count. Thereafter, on August 4, 1976 defendant was retried on the conspiracy charge and found guilty.

At this second trial the prosecution relied primarily on the testimony of Mona Yuhas, widow of the victim, who did not testify at defendant’s first trial inasmuch as she had fled the jurisdiction. Yuhas testified that she lived with her husband and her mother, Gladys Pounds. In July, 1975, Yuhas overheard a telephone conversation between Pounds and her sister, Margaret Alvey, who resided in Indiana, during which Pounds expressed her hatred of the victim and the fact that she wanted him killed. Pounds told Alvey that she was willing to pay $1,000 to have the victim done away with and Alvey replied that she would take care of it. Yuhas further testified that her sister, Alvey, telephoned her shortly thereafter to inform her that defendant, who is her niece, and James Butler were coming to Buffalo. Butler arrived in late July, 1975 and stayed at the Yuhas home for a couple of weeks, after which he moved into a house already occupied by defendant. On August 21, 1975 Alvey arrived in Buffalo and took up residence at the Yuhas home. During the evening of August 23, 1975 Alvey visited defendant and Butler at defendant’s house and the three returned to the Yuhas home at approximately 9:00 p.m. Defendant and Butler left the house immediately thereafter, after which the victim, who slept in a separate bedroom because of his tubercular condition, retired for the evening. Yuhas and Alvey remained in the house talking when defendant and Butler returned at about 1:30 a.m. Yuhas then went upstairs to bed but she was awakened by her husband yelling, "What are you doing in my bedroom?” and as she went to see what was happening, defendant grabbed her, threw her back into her bedroom and told her to stop hollering. When she attempted to go to her husband’s aid a second time she saw Butler on top of his bed, hitting him with a knife or club.

In addition to the testimony of Mona Yuhas, defendant’s oral and written statements made to the police, as well as a tape recording of a statement made by her, were admitted into evidence. This evidence showed that defendant had received a telephone call from her mother, Alvey, who informed her that her grandmother, Pounds, wanted the victim killed and would pay between one and two thousand dollars to have it done; that Butler and defendant’s mother came to an agreement whereby Butler would carry out the murder; that on the night of the murder, defendant and Butler went to the Yuhas home and that after Yuhas went to bed, Butler went upstairs to the victim’s bedroom carrying a pool cue, gun and knife; that Butler distributed gloves to defendant and Alvey which they put on before the murder; that defendant heard yells and moans upstairs and restrained Yuhas from leaving her room; that she observed Butler in the victim’s bedroom, saw blood on the floor and became ill; that Butler directed her to begin cleaning up and that thereafter they drove the victim’s body, in his own car, to the Thruway, where they left the car and the body. In her recorded statement defendant stated that although she knew of the plan to kill the victim and Butler’s agreement to carry out the plan, she did not know that Butler himself intended to commit the murder.

Finally, Yuhas’ neighbors testifed that they heard activity and noises coming from the Yuhas home at approximately 3:00 a.m. on the morning of the murder. On August 24, 1975 the body of the victim was discovered in the trunk of his abandoned car. An autopsy revealed three bullet wounds to the head and eight stab wounds to the chest. Following defendant’s testimony in her own behalf, by which she contradicted many of the facts that she had stated in her oral and written statements, the jury returned a verdict of guilty on the conspiracy charge.

Defendant first contends that her acquittal on the murder charge in the first trial requires an acquittal on the conspiracy to murder charge in her second trial and, therefore, that retrial on the conspiracy charge was improper.

The statute addressing this issue is CPL 310.70 which reads in pertinent part:

"1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, or with respect to one or more but not all of the defendants, the court must proceed as follows:

"(a) If the possibility of ultimate agreement with respect to the other submitted offenses or defendants is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60, the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict: * * *

"2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:

"(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense”.

The statute permits retrial for any offense upon which the jury was unable to agree unless a verdict of conviction thereon would have been "inconsistent” with a verdict actually rendered with respect to some other offense. Therefore, in order to determine whether defendant’s retrial on the conspiracy charge was proper, it is necessary to analyze whether a verdict of guilty on the conspiracy charge in the first trial would have been "inconsistent” with the verdict of acquittal on the murder charge in that trial.

A reading of the charge in the first trial shows that the court instructed the jury that it was to return a verdict of guilty or not guilty on each count of the indictment. Moreover, the court charged the elements constituting the crime of conspiracy and those elements constituting the crime of murder. In addition, the jury was instructed that it could find defendant guilty of the murder count under a theory of accessorial liability pursuant to section 20.00 of the Penal Law. If any conclusion may be reached from a reading of the charge, it is that the jury was instructed that it was to consider separate and distinct offenses, which conspiracy and the substantive crime of murder are (see People v Epton, 19 NY2d 496, 507-508; People v Potwora, 44 AD2d 207) and that it was entitled to return different verdicts on each count if it so found.1

Certainly, under the facts of this case as taken from the record of the second trial, which evidence was probably more compelling for conviction than that in the first trial inasmuch as the People’s primary witness, Mona Yuhas, was available to testify, there is a reasonable possibility that a jury could have found defendant guilty of conspiracy and not guilty of murder. Under section 105.15 of the Penal Law, "a person is guilty of conspiracy in the first degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.” A person cannot be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy (Penal Law, § 105.20). Here, the jury in the first trial might have found sufficient evidence showing that defendant did agree with her coconspirators to engage in or cause the murder of John Yuhas and that an overt act, separate and apart from those acts constituting the substantive crime of murder, was committed by one of the conspirators.2 Therefore, it would have been reasonable for the jury to return a verdict qf guilty on the conspiracy charge and not guilty on the murder charge and such verdicts being logically consistent under the instructions given, retrial on the conspiracy charge under CPL 310.70, would be proper.

In support of this determination is an application of the test to determine whether apparently contradictory verdicts in the same trial on two different counts of an indictment are merely inconsistent, and can stand, or are repugnant and cannot (People v Speach, 49 AD2d 210, 213; People v Bullis, 30 AD2d 470). That test states that "[cjontradictory verdicts are merely inconsistent [and can stand] if the counts upon which they are returned, although related to one another by the facts of the case, have different basic elements (Dunn v United States, 284 US 390). However, if the two counts have the same basic elements, and a verdict of guilty is returned in one and a verdict of not guilty is returned as to the other, the verdicts are repugnant and the count upon which a conviction is returned must be dismissed” (People v Speach, supra).

Here, if the jury in the first trial found defendant guilty of conspiracy and not guilty of murder, such verdicts would have been permitted to stand inasmuch as the counts upon which they were returned, conspiracy and murder, although related to one another by the facts of the case, have different basic elements. Since such verdicts would have been permitted to stand if rendered at the first trial, it is contradictory to conclude that retrial on the conspiracy charge was improper.

Accordingly, based upon the content of the charge at the first trial and the facts of the case as taken from the record in the second trial, we find that retrial on the conspiracy count was proper.

Defendant secondly asserts that a new trial is necessitated by the court’s error in allowing the prosecution’s witness, Mona Yuhas, to bolster her testimony by reference to the fact that a polygraph examination was administered to her and that such examination showed that she was indeed telling the truth. The People submit that such occurrence was improper but argue that it constitutes harmless error. We agree.

It is well settled that evidence of the results of a polygraph examination is inadmissible in New York (Pereira v Pereira, 35 NY2d 301, 307; People v Leone, 25 NY2d 511; People v Daley, 54 AD2d 1007, 1009). Here, defense counsel objected prior to the witness’ reference to the test and its results. In response to this objection the court stated that, "We do not use polygraphs as evidence.”

We take issue with the statement in the dissenting opinion: "There is no evidence whatever in the record that suggests that defendant actually knew that Butler intended to murder Yuhas until a few minutes before the murder was committed.” Quite to the contrary, there is overwhelming proof of defendant’s guilt. This proof consists of the testimony of Mona Yuhas, who related the sequence of events leading up to the murder of her husband, as well as the details of the murder itself in which she implicates the defendant. Additionally, there are the oral and written statements made by defendant to the police, the voluntariness of which is not raised on this appeal, as well as a taped statement made by her, in which she admits to having been aware of the arrangement to kill her uncle, coming to Buffalo and living with Butler, being present at the Yuhas house during the night of the murder, restraining Mona Yuhas from interfering with Butler while he committed the murder, cleaning up after the crime was committed, assisting Butler in transporting the victim’s body and car to the Thruway and transporting Butler to a bridge where he disposed of certain incriminating evidence. In light of this evidence presented at trial, we find that there is no reasonable possibility that the witness’ single reference to the polygraph test and its results might have contributed to defendant’s conviction and that such error should be found harmless beyond a reasonable doubt (Chapman v California, 386 US 18, reh den 386 US 987; People v Crimmins, 36 NY2d 230, 237).

With respect to defendant’s contention concerning the inadequacy and ineffectiveness of counsel, although it is clear that defense counsel utilized many questionable tactics throughout the trial and appeared to be unprepared in several situations, we cannot conclude that defendant was deprived of her constitutional right to counsel and a fair trial. Many of the alleged instances of counsel’s inadequacy or ineffectiveness may fairly be said to have constituted trial strategy on his part or merely a ploy to gain the sympathy of the jury, particularly in those instances where counsel complained of physical illness or mental lapses. Other instances of failure to object and inadequate direct and cross-examination are errors that are commonly committed by trial counsel and easily criticizable in retrospect when they should, under many circumstances, be viewed as exercises of judgment under the pressures of a trial. We note that defense counsel in the second trial is the same attorney who represented defendant in her first trial and who succeeded in obtaining an acquittal in that trial on the murder charge. Moreover, defendant made no motion for an adjournment in order to obtain other counsel and, in fact, in no way prior to this appeal made known any dissatisfaction with her counsel (see People v Martin, 52 AD2d 988, 989). The inadequacy or ineffectiveness of defense counsel here was attributable to the quality of the proof confronting him and not to any failure in the quality of representation. It cannot be said that defendant’s legal representation was so inadequate or ineffective as to render the trial a farce and a mockery of justice (People v Cossentino, 38 NY2d 760, 762). Nor may it be said that the quality of counsel’s representation falls short of the standards recently announced by the Court of Appeals in People v Droz (39 NY2d 457, 462). Under the circumstances, and in view of the overwhelming evidence of defendant’s guilt, reversal is not warranted.

We have examined defendant’s remaining contentions, including the assertion that her sentence was excessive, and find them to be without merit.

The judgment of conviction should be affirmed.

1 The court did not charge the jury in the first trial that merely by virtue of being a member of the conspiracy, defendant would be liable for the death of John Yuhas if a coconspirator committed the murder in furtherance of the conspiracy. Such charge is referred to as the Pinkerton charge (Pinkerton v United States, 328 US 640, 645-648; United States v Trevino, 556 F2d 1265, 1269, n 5) and in the Federal courts a conspirator who did not participate in the actual commission of the substantive offense may not be held liable for that crime in the absence of an appropriate instruction (United States v Trevino, supra, p 1269, n 5). This charge is also a statement of the law of New York in that a conspirator is liable as an accomplice or principal for the criminal acts committed by her coconspirators in furtherance of the conspiracy, even if she took no part in the actual culmination (People v Collins, 234 NY 355; see Shapiro v Ferrandina, 478 F2d 894, 914, petition for cert dsmd 414 US 884). We note that defendant took no exception to the charge as given.

2 There were eight overt acts alleged in the indictment and which were charged to the jury in the first trial. The jury might have found that the fact that defendant traveled from Indiana to Buffalo and took up residence with Butler was a sufficient overt act in furtherance of the conspiracy so as to find defendant guilty of conspiracy, yet insufficient to find defendant an accomplice or accessory to the murder under section 20.00 of the Penal Law.