People v. Smalls

OPINION OF THE COURT

ROSS, J. P.

The fundamental issue presented on this appeal is whether the trial of this defendant should have been severed from that of his codefendant. The defendant asserts that his oral confession was not “interlocking” with the written confession of codefendant, Anthony DeShawn McGee. Therefore, it is urged the trial court erred when it denied defendant’s motion for severance. A majority of this court finds this argument unpersuasive.

On December 7, 1976, Anthony McGee, Philip Green and defendant executed a plan, fashioned by Mary Jenkins, to rob the apartment of Pedro Pratt. During the course of this crime, Pratt was fatally shot. Several days prior to this incident, Jenkins observed decedent display a large sum of money to Jenkins’ brother, while the two were in the latter’s bedroom. Jenkins then formulated her plan. According to her testimony, she was not an active participant in the robbery because the Pratts were neighbors and she would be easily recognized. To accomplish this task she enlisted the aid of her boyfriend, Green, who was also known as “Jake”.

On the night of this incident, Green was accompanied by McGee and Smalls. After McGee’s arrest, he detailed his participation in this crime initially in an oral confession, then in a written, signed confession and finally in a steno-graphically recorded confession. McGee did not testify. Nor did he present any witnesses on his behalf. The investigating police officers testified for the People. According to McGee’s confession, he was recruited by Green who asked if he wanted to earn approximately $1,700. McGee readily consented and was told that Jenkins “had set something up”. Before departing for Jenkins’ apartment, Green returned a gun to McGee, which had been loaned to a mutual friend. On the way to this rendezvous, this duo encountered a third acquaintance by the name of “Lenny”, the defendant herein. Green informed defendant about the planned robbery and all three proceeded to Jenkins’ apartment.

Upon arrival at the apartment, Jenkins and Green proceeded to her bedroom where the details of the robbery were finalized. Shortly thereafter Green and Jenkins emerged and rejoined the others, who had remained in the living room. Once the group was together Jenkins discussed the plan with all three men. According to Jenkins, Green wanted to call the plan off for that evening because defendant was “high”. Defendant denied that he was incapable of proceeding and asserted that he wanted to go along with “it”. Thereafter, all four left the apartment with Jenkins believing that the robbery had been canceled.

As they proceeded down the stairs of the building, these four individuals encountered their selected target, Pedro Pratt, and his friend Edward Tyler, who were about to enter the Pratt apartment. They had returned to the apartment to obtain additional money in order to continue gambling activities. Jenkins stopped to talk to Pratt while her three male companions continued to descend the stairs. Jenkins testified that she spoke to Pratt about purchasing some marihuana. When Pratt mentioned the price, she stated she had no money with her and would have to return to her apartment. She then went back upstairs. Tyler remained in the hallway and Pratt entered his apartment.

As Tyler was standing there, the three males, who had been accompanying Jenkins, returned. Tyler testified that each held a gun. The defendant placed a pistol to Tyler’s head while McGee forced open the door to the apartment, which was being held shut by Pratt. Once inside, McGee aimed a revolver at Pratt and announced that “it was a stickup”.

The defendant forced Tyler into the bathroom where Smalls patted him down. Green remained in the hallway and was acting as a lookout. McGee was in another room of the apartment and demanded to know where the money was located. According to McGee, at this point Pratt leaped towards him and struck his arm which held the pistol. The pistol had a “hair trigger” and discharged. This statement was tempered by later admissions of McGee. After this shot was fired, McGee and Smalls allegedly fled. However, other members of the Pratt family, who were, in the apartment at this time, testified that these two individuals, McGee and Smalls, completed the robbery.

At the time of the shooting, Jenkins was in her apartment. After she heard the shot, she asked her brother to accompany her to Green’s apartment. All four had agreed that this would be the assembly point if the robbery occurred. Everybody, except defendant, arrived. At Green’s apartment McGee, in answer to a question posed by Jenkins, stated that he shot Pratt “right in the face” after Pratt had “jumped” him. Thereafter, this group departed. Several days later Jenkins encountered McGee, who once again admitted shooting Pratt. McGee bragged that he was a “marksman” and had shot deceased “directly between the eyes”.

Five weeks after the shooting defendant was arrested. After administration of the appropriate warnings, defendant gave an oral statement to the authorities. This statement was later reduced to writing; however, defendant refused to sign it. Defendant did not testify or present any witnesses on his behalf. According to the investigating officers, defendant admitted meeting McGee and Green on the night of the felony murder. Defendant asserted that he was on his way to buy some wine. When Green informed him that all three were heading in the same direction, defendant accepted the invitation to join them. At no time during this meeting, according to defendant, did anyone mention a robbery. On their way, however, the three men stopped at the apartment of Jenkins, who was introduced to defendant as a cousin of Green. Green and his cousin proceeded into the bedroom, while defendant and McGee remained in the living room. After approximately 10 minutes, the two returned to the living room. Thereafter, all four departed and no one had discussed plans for a robbery.

As they reached the first floor of the apartment building, defendant noticed two men standing in the hallway. Jenkins approached one of the men and began talking to him. Defendant and his two acquaintances proceeded to the front door of the building. Upon reaching this point, defendant noticed that McGee had withdrawn a gun and ran back to the two men to whom Jenkins had been speaking. Defendant and Green followed. McGee then pushed his way into the Pratt apartment. Once again defendant followed and while inside the apartment, he heard McGee demand several times, “Where is the money?” After the second uncomplied with exhortation, McGee shot Pratt. Immediately after the shooting, defendant allegedly attempted to aid both the slain man and Pratt’s mother. He then hurriedly left the apartment and according to his statement, ran home where he stayed all night.

The single issue now dividing this court is whether defendant was denied his Sixth Amendment right of confrontation when the trial court admitted into evidence the confession of Smalls’ codefendant, when that codefendant failed to testify or present any evidence on his behalf. The dissent argues that the confessions of McGee and Smalls were not interlocking. We disagree and find that these confessions are substantially similar so that the Bruton rule (Bruton v United States, 391 US 123) has not been transgressed.

In a joint trial where the extrajudicial confession of a codefendant adds substantially to the People’s case and where this declarant is not subject to cross-examination, it is error to admit this confession (Bruton v United States, supra). However, this rule and the application thereof are not inflexible and the Court of Appeals of this State, has refused to apply it in a vacuum. In People v Baker (26 NY2d 169, 173), the court stated: “[W]e have not blindly applied Bruton. Rather, we have looked to the actual effect of the implicating confession on the complaining defendant in determining whether the rationale underlying Bruton is applicable or, even if applicable, whether in light of all the other evidence in the case, the error should be characterized as harmless.” In addition to this harmless error analysis, the general propositions of Bruton (supra) are held not to apply “where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his codefendants.” (People v McNeil, 24 NY2d 550, 552.) It is this analysis to which our attention now focuses.

Smalls’ and McGee’s confessions are substantially similar in almost every material respect. Both men admit meeting Green at a certain intersection on the night of the incident and then walking to Jenkins’ apartment. Both acknowledge that they remained in the living room while the other two proceeded to a bedroom, from where they emerged a few minutes later. Both state that all four left the apartment together and that Jenkins stopped to talk to two men while the three males proceeded to the front door of the building. At this point both concede that they returned to where Pratt was standing outside his apartment and that McGee had drawn his gun. Defendant then indicates that he followed McGee into the apartment and heard McGee demand money on three occasions. According to both, a shot then rang out and both fled.

To counter this mass of evidence, defendant asserts that the confessions are not interlocking because he was not aware that a robbery was being planned and he was merely out on an errand to buy wine. Secondly, he maintains that his presence at the Pratt’s apartment was merely an effort to “assist” McGee, reasoning that McGee or Jenkins was being assaulted.

An objective review of these alleged differences demonstrates that they comprise a veiled attempt to obscure the realities of the situation. The statement of the defendant, and the confession of codefendant McGee both place the defendant at the scene of the commission of the crime and have him actively participating in it. Defendant’s claim of innocence falls limply aside under careful scrutiny. Defendant observed McGee, with pistol in hand, rush back to the Pratt apartment. The victim was attempting to flee. Defendant followed and once in the apartment heard his accomplices announce a robbery. Indeed, this scenario belies defendant’s claim that he returned to help Jenkins who, according to defendant, was in trouble. The clear import of these activities is that defendant was not out on an errand, or returning to assist a friend, but rather that he was an equal partner in this deadly crime. The statements of McGee and Smalls support this conclusion and are so interlocking that there is no violation of the Bruton rule.

Even were we to determine that the confessions are not completely interlocking, defendant’s conviction should be affirmed in light of the overwhelming evidence against him. In Harrington v California (395 US 250), the Supreme Court held, on facts similar to thosé now before this court, that a Bruton error was harmless beyond a reasonable doubt on the grounds that the evidence against the accused was overwhelming. In Harrington (supra), which was a prosecution for a felony murder committed in the course of a robbery, the accused, like Smalls, made statements to the authorities which fell short of a confession, but which placed him at the scene of the crime. Harrington indicated that his codefendant shot the victim. Here defendant placed the blame for the shooting on McGee. In addition, in Harrington, the robbers fled and there were eyewitnesses to the crime. On the facts before us, defendant admitted that he fled, and Edward Tyler, deceased’s companion, and other members of the Pratt family testified as to defendant’s participation in this crime.

On the question of the magnitude of the evidence against defendant Smalls, the dissent concedes that: “[i]t cannot be denied that the evidence against Smalls was substantial.” This writer concludes that the evidence was overwhelming and, accordingly, a recapitulation of the facts is appropriate. Jenkins identified defendant as one of the two men who came with Green to her apartment. Tyler positively identified defendant Smalls as one of the two gunmen and also testified that defendant Smalls held a pistol to his head. In addition, Smalls admitted to being in Jenkins’ apartment on the evening of the incident and later followed McGee, who had a pistol drawn into Pratt’s apartment. He remained in that apartment while McGee demanded the “money”, and was in the apartment when McGee shot Pratt. In addition, there was testimony that this defendant went through the victim’s pockets as the victim lay prostrate after having been shot.

The record before us convincingly demonstrates that the evidence substantiating defendant’s participation in and guilt of this crime was overwhelming. Any characterization of this evidence other than overwhelming is trained. Any violation of the Bruton rule, if there be any, is, therefore, harmless beyond a reasonable doubt.

As the dissent concedes, the form of the confessions, whether they be written or oral, is merely one factor to weigh in considering whether the general propositions of Bruton (391 US 123, supra) are applicable. Under the facts of this case, there is no reason to conclude that the form of the confessions had a material impact on the jury.

Accordingly, the judgment of the Supreme Court, New York County (Melia, J., at motion to sever and Huntley hearing; Carro, J., at Huntley hearing, trial and sentence), rendered on June 6, 1978, convicting defendant after trial by jury, of the crime of murder in the second degree, and imposing a sentence of 17 years to life, should be affirmed.