THE
PEOPLE OF THE STATE OF
against MEMORANDUM IN SUPPORT OF
DEFENDANT’S CPL 440 MOTION
JOHN F. CARROLL
I. PRELIMINARY STATEMENT & INTRODUCTION
John Carroll was initially tried in Rensselaer County Court (Hon. Judge Sise presiding) under an indictment that charged him with three counts of rape and six counts of sexual abuse in the first degree involving his step-daughter. The lead prosecutor was then Rensselaer County Assistant District Attorney Patricia DeAngelis. The petit jury returned guilty verdicts against Mr. Carroll on all counts. The Third Department affirmed the conviction but modified the sentence that had been imposed. The Court of Appeals reversed the convictions, dismissed the Rape counts and ordered a new trial on the abuse counts.
Mr. Carroll was retried on the sexual abuse counts and again convicted on all counts (Hon. Judge McGrath presiding). The lead prosecutor was again Patricia DeAngelis. Mr. Carroll’s appeal to the Third Department resulted in affirmance and his request for permission to appeal to the Court of Appeals was denied. Since the affirmance of Mr. Carroll’s conviction, the Third Department issued its decision in People v. Levandowski, (Reproduced herein as Exhibit A) reversing the conviction in a case with striking parallels to the instant case. The reversal was based inter alia on prosecutorial misconduct. Mr. Carroll, through counsel, brings this motion under CPL 440, based on the new law created by the Levandowski case, newly discovered evidence, and violations of Mr. Carroll’s rights under the United States’ and New York State Constitutions.
II.
STATEMENT OF FACTS
A.
Pretrial Investigation
In February 1997 Mr. Carroll’s
stepdaughter, [stepdaughter], the biological daughter of his estranged wife,
Paula, told a friend that she had dreamed that someone had touched her
sexually. She identified the “perpetrator” in the dream as one AJ McNawl. AJ
was [stepdaughter]’s cousin and the son of
Based on [stepdaughter]’s new recitation of events, the police attempted a controlled call with Mr. Carroll wherein [stepdaughter] called Mr. Carroll and leveled various accusations against him. During this call Mr. Carroll expressed shock and dismay about the fact that the accusations were being made and insisted that they were false and that he was innocent.
The police went to Mr. Carroll’s business and sought to interview him. Mr. Carroll asked the police whether he needed a lawyer and was told that it was up to him. Based on this ambiguous answer by the police, Mr. Carroll asked to make a phone call. In an effort to find himself an attorney, Mr. Carroll contacted Al McNawl, a Troy policeman and the father of AJ McNawl the initial “perpetrator” in [stepdaughter]’s dream. Mr. Carroll asked Mr. McNawl to get him a lawyer. (See Affidavit of John F. Carroll in Support of Defendant’s CPL 440.10 motion, hereinafter “JFC Aff” at 2)
McNawl then contacted Mr. Carroll’s
sister, Marion and told her to call the lawyer and tell him that Mr. Carroll
was in need of his services. (Ex. B)
After McNawl spoke to Weber at the
B.
The First Trial
Mr. Carroll was tried based on an Indictment charging him with three counts of rape in the first degree and six counts of sexual abuse in the first degree. (Ex. D) All the counts alleged that Mr. Carroll’s stepdaughter was the victim. During this first trial the police testified extensively about their interview with Mr. Carroll and repeatedly testified that either Mr. Carroll’s demeanor or “body language” indicated he was guilty or that his denials were actually, under police “logic”, admissions. Judge Sise refused the defense request to play the tape of the controlled call where Mr. Carroll had denied the charges and allowed the prosecutor wide range in making her points and arguments. Mr. Carroll was convicted on all counts. The Third Department confirmed the conviction but shortened Mr. Carroll’s sentence. The Court of Appeals subsequently reversed.
C. Reversal by the Court of Appeals
The New York State Court of Appeals reviewed Mr. Carroll’s conviction after the first trial and reversed. They found that the evidence concerning rape in the first degree was insufficient as a matter of law and that the rape counts charged in the indictment had to be dismissed. In reaching its decision as to the three rape counts, the Court found that “the evidence was not sufficient to establish beyond a reasonable doubt, the element of penetration”.
People v. Carroll, 95 NY2d 375, 384. As to the remaining sexual abuse counts, the
Court of Appeals found that Mr. Carroll had not received a fair trial because
the prosecution had argued during the trial that he never denied the charges
and the Court refused to allow the defense to play the controlled call tape
wherein he had repeatedly denied the charges. The Court of Appeals ordered a
new trial on the sexual abuse counts, finding that the refusal to play the tape
under the circumstances “was an abuse of discretion and resulted in a trial
that was decidedly skewed in the People’s favor.”
D.
The Second Trial
The second trial was presided over by a different judge, Honorable Judge McGrath, but the prosecution was once again led by Patricia DeAngelis. During the trial the prosecutor repeatedly (1) improperly impugned the credibility of witnesses; (2) improperly injected her personal opinions into the trial; (3) improperly shifted the burden to the defense; (4) improperly attempted to influence the jury and (5) improperly made references to matters de hors the record. Each of these errors will be detailed seriatim herein. Each of the errors bear striking resemblance to the errors that led to the reversal in the Levandowski case.
III.
ARGUMENT
A.
PROSECUTORIAL MISCONDUCT REQUIRES A NEW TRIAL
Thomas Levandowski was convicted of various sex crimes in Rensselaer County Court after a jury trial where the people were represented by District Attorney Patricia DeAngelis. The Third Department recently reversed that conviction finding that the District Attorney had been overzealous and had over reached in her attempt to convict the defendant Levandowski. The conduct of the DA in Levandowski was strikingly similar to the conduct of the same DA in the instant matter and her conduct in the instant matter was similarly egregious. Like the Levandowski case, the prosecutor herein injected the trial with inappropriate, irrelevant, prejudicial comments that were unsupported by the record and which invaded the province of the jury.
Because the Third Department, through its Levandowski opinion, has given this Court specific guidance as to the nature of the types of prosecutorial misconduct that should result in reversal, and because nearly identical and perhaps more egregious conduct has occurred in this case, this Court should reverse the convictions in this case and order a new trial.
(1)
DeAngelis Improperly Impugned the Witnesses
A prosecutor’s role is to see that justice is done. In doing so a prosecutor should marshal the facts and organize and present them to the jury in a way that allows the jury to use its own judgment to determine the guilt or innocence of the accused. People v. Levandowski, Ex. A). In the instant matter the prosecutor made improper wisecracks and demeaning statements about the defendant and other witnesses. For instance in closing DeAngelis stated:
But they want you to believe oh, he must have wanted, he must have wanted back, Paula must have wanted him back. Give me a break, okay? He is not a great prize.
(DeAngelis’s closing is reproduced in its entirety as Ex. E) (Ex. E at 244- 245)(emphasis added)
Prosecutor DeAngelis’ comment does not cite to the record and is not, nor could it be, supported by the record. It is simply an inappropriate comment by a prosecutor aimed at tearing down the defendant/witness with her own biased and irrelevant opinions about how desirable the defendant-witness might or might not be. Repeatedly this prosecutor used inappropriate language to try and tear down the defendant/witness. Rather than ask the jury to consider the defendant’s credibility based on specific evidence, DeAngelis repeatedly engaged in ad hominem attacks on Mr. Carroll:
I put this tape in evidence. Remember that? And I put this tape in because I want to see the defendant try to weasel his way out of this? (Ex. E at 251) (Emphasis added)
He wanted the court to know that he was never inside the apartment. That is baloney. (Ex. E at 252)(Emphasis added)
Yes, I just went inside the door, because then if you believe he went into the apartment, then maybe he touched her right? OK that is a crock of, OK it is enough. (Ex. E at 252) (Emphasis added)
He did call his girlfriend. I’ve no doubt of that. She is his number one fan. (Ex. E at 282) (Emphasis added)
And he is great, great guy up here on the pedestal, honest Jack Carroll. (Ex. E at 283)
His whole explanation is crazy. (Ex. E at 272)
Even Grandma lied, members of the jury. (Ex. E at 258)
And they want you to believe that Jane Szary Weber is lying because everybody is lying in my case: That’s pathetic. (Ex. E at 287)
DeAngelis’ attacks on the defendant and the defense went beyond proper argument and thereby improperly impugned the witness/defendant. The attacks repeatedly interjected DeAngelis’ personal opinions into the trial. The People’s prosecutor has enormous influence in a community and enormous ability to sway the jury. Her interjection of personal opinion had a great propensity to influence improperly the jury’s deliberations and considerations of the evidence and in and of itself resulted in an unfair trial. Her actions in this regard were the exact types of actions that resulted in reversal in Levandowski.
(2) DeAngelis Improperly Interjected Her Personal Opinions
The second trial was replete with examples of DeAngelis improperly interjecting her personal opinions about the evidence and the witnesses. During her closing, DeAngelis said of the DA’s witness: “Investigator Girtler is the best.” (Ex. E at 241) Whereas DeAngelis admittedly could have argued that Girtler had years of experience or had won certain awards, her statement amounted to nothing more than the DA’s office using its personal imprimatur to bolster a prosecution witness. The statement that Girtler was “the best” was certainly not an objective statement nor was it tied to objective evidence. It was merely the opinion of the prosecutor. Later DeAngelis states, in reference to the taped conversation, that Girtler “knows what he is listening to. He knows what he is looking for, and when he heard that tape, bells went off in his mind and you know something, members of the jury, he was right”. (Ex. E at 276)
Not satisfied with merely bolstering Girtler, DeAngelis also stated with reference to another DA’s witness: “Dr. Treacy is the best.” And later “Dr. Treacy knows what she is talking about.” Later, ‘you bet your life I brought Dr. Treacy in here and what a wonderful witness she was” (Ex E at 221) Again ADA DeAngelis’ worked hard to impress the jury with the strength of her witnesses by simply imbuing those witnesses with the DA’s personal imprimatur. DA DeAngelis seems to have believed that it was her opinions that mattered, not the evidence or the way the jury evaluated the evidence. She constantly worked hard to tell the jury what her personal opinions about things were.
This sort of bolstering is specifically prohibited by a long line of cases. The Third Department has held that it “is well settled that a prosecutor may not express personal; opinions concerning the credibility of witnesses who testify at trial, or appeal to their sympathies.” People v. Russell, 761 NYS2d 400 (A.D. 3rd 2003) See also, People v. Ortiz, 125 AD 2d 502,509; People v. Goldstein, 763 NYS 2d 390. Where, as in the instant case, the conduct causes substantial prejudice to the defense, reversal is warranted. People v. Tarantola, 178 AD 770
As indicated above, the prosecutor told the jury, referencing the defendant: “he is not a great prize.” She stated about the alleged victim/witness [stepdaughter]: “... I applaud her. I think she did a great job”. (Ex. E at 247) In comparing the defendant to the police witness Girtler, whom she had just praised, she stated “The defendant, I can’t say the same for him.” (Ex. E at 280-281)
Thus the
In denigrating the defense the prosecutor injected her personal opinions again, repeatedly commenting on the evidence by stating her personal opinions about it: “Members of the jury, I think the night of that disclosure everybody in that room thought he was the greatest guy in the world…” “Dr. Treacy came in here and told you so many reasons why children don’t tell and the doctor who came in here today talked about Roland Summit’s study on child sexual abuse, and absolutely I agree with her here…”(Ex. E at 220) “And I told you Cheryl’s version of the events because in my opinion it is most reasonable that what she said happened, happened” (Ex E at 237)
Later she stated that “truth be told, members of the jury, I don’t think there was a dream”. (Ex. E at 240) Continuing the parade of personal opinions she indicated that: “the key to this case for me is… (Ex. E at 262) and “He did call his girlfriend, I have no doubt about that”. (Ex. E at 282) “I’ve seen studies; I know she has worked on infants…” (Ex. E at 285) “Doesn’t matter to me as a prosecutor if she has a yeast infection.” (Ex. E at 287) “The defendant, I can’t say the same for him.” (Ex. E at 280-281)
In short, DeAngelis interjected her personal opinions into this trial innumerable times, in clear violation of longstanding legal precedent, precedent recently reaffirmed, reiterated and delineated in the Levandowski case. People v. Russell, 307 AD2d 385, 386 (2003); Levandowski, Ex A. at 3.
(3) DeAngelis Improperly Influenced the Jury
Not content with having improperly interjected her own personal opinions into the trial and thereby into the minds of the jury and not content with having improperly impugned defense witnesses and having improperly bolstered prosecution witnesses, the ADA had the young victim/witness sit in the front row of the audience during closing arguments and then made repeated references to her while arguing the defendant’s guilt. JFC Aff. At 4; Ex. B, Ex. C)The DA had members of her staff sit with the alleged victim and the alleged victim covered her eyes repeatedly conveying to the jurors who were about to deliberate that she was upset. In the Levandowski case, DeAngelis was reprimanded by the Third Department for having members of her staff and relatives of the alleged victim wear yellow ribbons to Court. (Levandowski, Ex. A at 4).
Though taken alone this was perhaps not as egregious as the yellow ribbons, DeAngelis’ manipulation of the jury’s emotions through the antic of displaying the young alleged victim (who seems to have appealed to the juror’s emotions through her tears) prior to deliberation, coupled with her bolstering of certain witnesses and denigration of others throughout the trial, clearly impaired the defendant’s right to a fair trial. Levandowski, Ex A at 4; Matter of Montgomery v. Muller, 176 AD2d 29, 32 The ADA’s antics put the jury in the position of having to deliberate after already being told that the ADA personally believed the alleged victim and personally did not believe the defense.
The jurors not only had to put aside the beliefs of a seasoned professional with much more experience in these matters than they had, they had to put aside their emotions after being confronted with the person of the young child who was the alleged victim. To ask a jury to render a fair and balanced verdict under these conditions is asking too much. Defense counsel sought a mistrial after the jury was dismissed for the day on the basis of this antic – a request that was denied.
(4) DeAngelis Improperly Referred to Evidence De Hors the Record
To the extent that the prosecutor managed to make argument without injecting her personal opinions she often did so by pointing to evidence that was not in the record at all. For instance, where in the record does the support for the statement “I’ve seen studies, I know she has worked on infants…” (Ex. E at 285) referring to Dr. Treacy comes from. Where did the comment, “I think the night of that disclosure everybody in that room thought he was the greatest guy in the world…” find support in the record? (Ex. E at 292)
More ominously ADA DeAngelis states during her closing with reference to the defendant:
He grabbed her breast and then he slid his hands into her pants in the front
of her pants and the he put his finger in her vagina, when she said, “Daddy, no daddy, stop,” and she backed away from him. He pushed her up against the sofa and he held her and he put his fingers inside of her. (Ex. E at 229)
The alleged victim in this case never said that the defendant put his fingers inside of her. The prosecutor’s eloquent oratory did not reflect the evidence adduced at the trial. It could not have been more prejudicial for a prosecutor to stand there and recount for the jury a scenario, testified to only in part, with the prosecutor’s embellishments slipped in repeatedly. The jury may well have remembered the child’s testimony decidedly differently after the story had been eloquently but falsely related by the prosecutor.
The
When the
ADA DeAngelis went on to say: “[stepdaughter] got down on her hands and knees and grabbed her mother and said, “Mommy why didn’t you protect me? Why didn’t you know?
Why didn’t you know?” (Ex. E at 251)The prosecutor not only misquoted [stepdaughter] on this speech, the speech was pure fabrication – it had never been said or testified to in that fashion.
(5) DeAngelis Ignored the Court’s Sandoval
Ruling Resulting in Severe Prejudice
ADA DeAngelis also ignored the Court’s Sandoval ruling and relied on the Court’s confusion regarding the matter to run roughshod through a litany of supposed prior bad acts of the defendant. The defendant had pled guilty to a single count information charging grand larceny, 4th for sales tax evasion in 1998. This plea was entered after four criminal complaints had been filed against the defendant regarding record keeping with regard to the sale of boats. (Ex F) The criminal complaints charged violations of PL 175.10 (Falsifying Business Records); PL 170.70 (Illegal Possession of Vehicle Identification Numbers) and PL 170.25 (Criminal Possession of a Forged Instrument) (Ex. F)
When the
When the prosecutor specifically asked whether she could inquire as to the defendant having allegedly lied to people on the phone, the Court specifically barred the prosecutor from using these alleged acts. In refusing to allow it, the Court specifically stated that the inquiry would be “too tenuous” and “too prejudicial”.
At trial, however, after the
defendant had committed himself to testifying, and after he had taken the stand
and testified on direct, the
Of course, once again the bell had been rung. In a case where credibility was everything, Mr. Carroll’s credibility had been unfairly destroyed. A plea to a single count of tax evasion, a plea made in the midst of Mr. Carroll’s attempt to defend himself against sexual abuse charges and in an attempt to allow him to focus on those charges, metamorphosed into an endless stream of unproven accusations used by an overzealous prosecutor in an attempt to destroy him. These unproven allegations, as put before the jury, were extremely prejudicial and improper and amounted to the prosecutor trying to “convey to the jury, by insinuation, suggestion or speculation, the impression that the defendant is guilty of other crimes not in issue at the trial. People v. Carborano, 301 NY2d 39, 42; People v. Doody, 172 NY 165. The line of questioning was made in an obvious and improper attempt to circumvent the Court’s Sandoval ruling. People v Miller, 149 AD2d 439; People v. Stacie, 131 AD2d 684.
The jury never received a clear
indication as to how many felony Complaints there in fact were, there was never
an indication of what specifically the defendant had allocated to in pleading
to a single count of tax evasion, and there was never a clear explication of
the nature of the complaints that were in fact extant. (At one point the
The prosecutor’s violation of the
Sandoval ruling resulted in the jury hearing evidence that suggested that the
defendant had committed innumerable felonies and the defendant never had an
opportunity to confront these charges or the so-called witnesses or to dispute
this evidence or these witnesses. Not content to merely put in erroneous
evidence the prosecutor emphasized the evidence in her summation and talked
about “all of those dishonest acts that he had done, all of those victims”. Ex.
E at 284). The “evidence” adduced by the prosecutor and put before the jury was
in violation of the Court’s earlier ruling and was raised for the sole improper
purpose of creating the inference that he had a criminal disposition. People v. Hudy, 73 NY2d 40, 54-55; People v. Molineaux,
167 NY 264; People v. Rodriguez, 274 AD2d 593; People v. Kise,
273 AD2d 849. These Sandoval violations were closely related to the
credibility issues presented at the trial and therefore substantially
prejudiced the defendant’s case. People v. Elder, 615
NYS2d 915; People v. Dombrowski, 558 NYS 2d 401; People v.
7. The Prosecutor Misused the Tape
At the onset of this case the police arranged a controlled taped call with Mr. Carroll where they sought to have the alleged victim confront the defendant in an effort to elicit a confession from him. Despite the concerted efforts of the police and the alleged victim, Mr. Carroll repeatedly denied the allegations and made no incriminating statements. In fact, the tape was so innocuous that the prosecution declined to use the tape in the first trial and attempted to keep the defense form using it. This error resulted inter alia in reversal. Knowing that the defense would use the tape in the second trial to show Mr. Carroll’s innocence, the prosecutor introduced the tape in the second trial during the direct examination of Detective Girtler.
Rather than simply play the tape and allow the jury to draw its own conclusions, the prosecutor attempted to repeatedly stop the tape and allow Detective Girtler to interject his opinions as to the “true” meaning behind Mr. Carroll’s denials as elicited on the tape. The Court, aware that the stop and go playing of the tape, along with Girtler’s “interpretation” was highly misleading and prejudicial, sustained defense counsel’s objection and stated that “I am not going to let you do this”. (Transcript at 62)
The DA however was not satisfied and once again tried this tactic in her summation. Not only did the prosecutor repeatedly stop the tape and interject her own opinions as to the “meaning” of the taped conversation, but she repeatedly left out portions of the tape in an apparent effort to distort the meaning of the tape and added portions that were not in the transcript of the tape. (See JFC Aff)
In short, a tape that the prosecution knew was exculpatory was used and distorted and misused in a calculated way to establish the defendant’s guilt. At the very least a hearing should be held on this issue so as to determine the degree to which the playing of the tape distorted the conversations and gave the jury a false impression as to the actual words that were spoken.
8. Potentially Exculpatory Evidence Was Not Produced
The alleged victim in the case apparently attempted suicide and wrote a suicide note. This note was never turned over to the defense and was the subject of a recent motion to the Court. The district attorney’s failure to produce this note was unfair and potentially violated the Brady and Giglio doctrines.
9. The Prosecutor’s Misconduct Impermissibly Shifted the Burden
The prosecutor’s constant ad hominem attacks on the defendant and the defense witnesses had the effect of shifting the burden to the defense to prove Mr. Carroll’s innocence and removed the constitutional guarantee that an accused is innocent until proven guilty beyond a reasonable doubt. When the prosecutor argued that she wanted to “see him {the defendant} weasel his way out of this” she was shifting the burden to Mr. Carroll to prove his innocence and was also improperly commenting on and thereby restricting his right to remain silent. (Levandowski, Ex. A at 3-4).
9. Cumulative Errors and Continuous Misconduct
As indicated by the
To be sure, each of the cited instances of misconduct, standing alone, might not justify reversal, but given the fact that defendant’s credibility was central to his defense, physical evidence of criminality was lacking and the People’s expert testimony was of questionable value, the cumulative effect of such conduct clearly prejudiced defendant’s right to a fair trial… (Ex. A at 4)
The prosecutor’s summation and the trial itself was replete with egregious misrepresentations of the record, improper bolstering of prosecution witnesses, improper denigration of defense witnesses, improper influencing of the jury, Sandoval violations and repeated references to the prosecutor’s personal opinions. In the context of a trial where virtually all the evidence related to the credibility of the defendant and the alleged victim, this summation clearly prejudiced Mr. Carroll’s right to a fair trial. Prosecutors should be more than “mere advocates or partisans” and they represent the People and the People’s justice in presenting proof”. People v. Steinhardt, 9 NY2d 267. Rampant prosecutorial misconduct in this trial requires reversal.
B.
The Charges were Duplicitous and Must be Dismissed
1. Count 2
Count two of the Indictment herein
(Ex. D) charged Mr. Carroll with Sexual Abuse in the First Degree. It alleged
that Mr. Carroll kissed the breast of the alleged victim in July 1993. Though
the indictment might be facially sufficient, and non-duplicitous, an
examination of the alleged victim’s testimony establishes that this charge was
duplicitous, that is that it charged more than one crime in a single count. The
alleged victim’s testimony specifically concerning this count is transcribed at
pages 68-76 of the
Thus the entire examination of the alleged victim regarding this count proceeded under the assumption that during the month of July 1993 (or perhaps during a lengthier period) there were numerous incidents of abuse. The testimony did not establish that there was a particular crime committed and then establish the elements beyond a reasonable doubt as to that particular crime. Rather the testimony showed at best that there was a pattern of activity, including many separate crimes over a period of time.
It is axiomatic that an “indictment must provide the accused with fair notice of the charges against him, and of manner, time and place of the conduct underlying the accusations, so as to enable him to answer the charges” and to prepare an adequate defense and protect against double jeopardy. People v.. Morris, 61 NY2d 290. Each count of an indictment can charge only offense. CPL 200.30(1). Where the count encompasses more than one offense it is duplicitous. People v. MacAfee, 76 AD2d 157.
The alleged victim’s testimony on this Count did not relate information about a specific single incident. It related generally to numerous alleged incidents and conflated them. This is precisely what the principles of duplicity are meant to prevent. Each count of an indictment may charge only one offense. (CPL 200.30(1)These principles have been established to prevent double jeopardy, to ensure a defendant’s due process right to notice and to ensure the unanimity of a jury’s verdict. People v. Davis, 72 NY2d 32, 38; People v. Keindl, 68 NY2d 410,418. Count two, by charging what should have been multiple counts in a single count, violated each of the principles designed to be protected through application of the prohibitions against duplicitous charges. Levandowski, Ex. A at 2; MacAfee at 159-160
1.
Count 4
This count charged Mr. Carroll with sexual abuse in the summer of 1994. It is clear that the victim was not testifying about a specific incident but rather was once again conflating what she recalled as multiple incidents into one. The alleged victim’s testimony, with regard to this count, makes it clear that she is talking about multiple incidents:
Q. And when he was lying on top of you, kissing your breast, what did you do?
A. I would try and push him away.
***
Q. And tell the jury what he would do?
A. He would get up and then he would go into the bathroom
***
Q. And when he got out of the bathroom did he speak to you about what had happened?
A. Not always right away.
(
Thus it is clear that although the Indictment might not be facially duplicitous, the testimony itself establishes that the alleged victim was testifying about multiple incidents, duplicitously charged in one count. The danger, of course, in this type of charge is that the each member of the jury may decide to convict the defendant on their personal belief that the defendant committed one particular crime while another might convict for another - thus creating a situation where the jurors are convicting without unanimously agreeing on guilt beyond a reasonable doubt as to a specific crime or instance. This count must be dismissed.
2.
Count Six
Count Six charged sexual abuse in January 1995. The testimony provides examples of the alleged victim once again conflating multiple incidents into the single count charged.
Q. [stepdaughter], when he put his hands down your pants, what did he do? A. He would touch my – he would touch my vagina.
Q. And when he touched your vagina, what would you do?
A. I would try and tell him to stop and push away from him.
(
The evidence concerning count six was once again duplicitous, what the defendant allegedly would do is not a question that focuses on one specific incident but rather asks for a general explanation of what the defendant did as a general practice. Again the danger is that the defendant can be convicted based on evidence that refers to his general activities and not on evidence that relates to a specific charge. A conviction based on this type of duplicitous charge requires reversal.
A.
Count Four Should Be Dismissed – Insufficient
Evidence
Count 4 of the indictment charged
Mr. Carroll with Sexual Abuse in the First Degree under CPL 130.65(3). This
charge alleges that there was sexual contact between Mr. Carroll and a person
“less than 11 years old.” 9ex. D) It alleges however that the crime charged
occurred in the “summer of 1994”. The alleged victim was born in August 1983.
She therefore was only “under 11” for part of the summer of 1994. Her testimony
regarding this charge is found at pages 78-82 of the
B.
PRINCIPLES OF COLLATERAL ESTOPPEL AND DOUBLE
JEOPARDY WERE VIOLATED BY
THE INTRODUCTION OF EVIDENCE OF PENETRATION AT THE SECOND TRIAL
Under established precedent in
In the instant matter, John Carroll
was initially tried on an indictment that charged him with Rape in the First
degree - a charge that required proof that the alleged victim had been
penetrated. Although Mr. Carroll was initially convicted of the rape charges,
the Court of Appeals reversed and found that there was “no testimony or
physical evidence establishing penetration”. People v.
Carroll, 95 NY2d 375. They found in fact that there was “no
testimony from the child with respect to any instrumentality of
penetration”.
Although Mr. Carroll’s sexual abuse
convictions were overturned because of evidentiary errors at the first trial,
he was retried on the sexual abuse counts. At the second trial the prosecution
brought forward significant evidence in an effort to establish that penetration
had in fact taken place. In fact, Nurse Szary was called as a witness for the
sole purpose of introducing evidence of her medical examination of the alleged
victim – a medical examination that she claimed showed the alleged victim had
been penetrated. Szary testified as to how a hymen is torn, how fingers,
objects and penises can be used to penetrate and how the penetration by an
object might compare to a rape. (
This evidence should not have been admitted and its admission violated Mr. Carroll’s Fifth Amendment right against being twice placed in jeopardy. The question as to penetration had already been decided by the Court of Appeals when it found that there had been no showing of penetration at the first trial. Where “the people have had a full and fair opportunity to contest issues, but have failed, it would be inequitable and harrassive to again permit the prosecution to establish these same matters, as if the first trial had never taken place. People v. Chin at 788 citing People v. Plevy, 52 NY2d 58, 64.
Although the Supreme Court has
ruled that collateral estoppel applies to ultimate facts in criminal cases, ( Ashe v. Swenson, 397
Here the sole reason the Court of Appeals reversed is because the prosecution failed to prove the issue of penetration. In fact the court found that there was no evidence of penetration by any instrumentality – there was no evidence of any kind of penetration.
Thus, in this case there is no need for an analysis to determine why an acquittal took place; the question was clearly and definitively determined by the Court of Appeals. The admission of testimony regarding penetration at Mr. Carroll’s second trial was error and violated his Constitutional right to not be twice put in jeopardy. A defendant should not be forced to “defend again against charges or factual allegations which he overcame in the earlier trial”. Wingate v. Wainright, 464 F2d 209, 213-214. Neither law nor logic requires a re-litigation of identical evidentiary issues previously raised and conclusively settled at a prior trial. People v. Redd, 167 Misc 2d 774, 781.
Mr. Carroll was accused of rape in the indictment that governed the first trial. In order to convict Mr. Carroll of rape the prosecution had to show penetration. The Court of Appeals found definitively that the prosecutor had failed to establish penetration. During the second trial the prosecution again introduced evidence of penetration in an effort to convict Mr. Carroll of sexual abuse. This forced Mr. Carroll to once again defend against an accusation of penetration. This error was of Constitutional proportions, violating principles of collateral estoppel and double jeopardy.
C.
Double Jeopardy as to the Sexual Abuse Counts
Mr. Carroll was convicted at his first trial of inter alia four counts of sexual abuse that required proof of ‘forcible compulsion’ because the alleged victim was at the time of those allegations over the age of eleven. A review of the evidence at the first trial reveals that as to those counts there was no evidence of forcible compulsion. Mr. Carroll should never have been convicted on those counts and they should never have been submitted to the jury. His conviction on those counts should have been reversed on appeal. The failure to throw out those charges resulted in a violation of his double jeopardy rights in that he was had to twice stand trial on counts that were not sustainable on the evidence adduced at the first trial.
E.
Ineffective Assistance of Appellate Counsel
As explained supra, Mr. Carroll was convicted at his first trial of inter alia four counts of sexual abuse that required proof of ‘forcible compulsion’ because the alleged victim was at the time of those allegations over the age of eleven. A review of the evidence at the first trial reveals that as to those counts there was no evidence of forcible compulsion. Inexplicably the issue as to forcible compulsion was never raised by Mr. Carroll’s appellate counsel who was also his trial counsel. Had it been raised, the retrial of the abuse counts would have been barred by double jeopardy principles and Mr. Carroll would not have had to stand trial on those counts a second time.
Because the issue was not raised, the District Attorney was able to work with the alleged victim to bolster her testimony and the evidence at the second trial, evidence completely lacking in the first trial, was made much stronger. Mr. Carroll’s appellate counsel’s ineffectiveness, which resulted in Mr. Carroll’s having to face twice the same accusations, did not provide him with “meaningful representation” as required by the Sixth amendment and established precedent. People. Baldi, 444 NYS 2d 893.
F. The
Interrogation of Mr. Carroll Violated His Right to Counsel under the Sixth
Amendment
After Mr. Carroll was accosted by
the police at the
After arriving at the barracks, Ms. Donohue and Mr. Carroll’s sister spoke with Steve Weber, the lead investigator. They asked him whether Mr. Carroll’s attorney had arrived and whether he was with the attorney. Steve Weber’s response to the two women was “as we speak”. (Exhibits B & C) Satisfied that Mr. Carroll was now with an attorney and thereby having his rights protected, the two women made no further efforts at that time to secure an attorney for Mr. Carroll. Officer Weber’s statement was a lie intended to keep Mr. Carroll from exercising his right to counsel.
This fraud perpetrated on Ms. Donohue and Mr. Carroll’s sister and ultimately on Mr. Carroll resulted in a lengthy un-counseled interrogation of Mr. Carroll. Even according to the police, Mr. Carroll maintained his innocence throughout the interrogation but the police used the interrogation to provide evidence against Mr. Carroll that they supposedly derived form their years of experience in training in deciphering body language and non-verbal clues. This evidence was extremely detrimental to Mr. Carroll’s defense and left the jury with the impression that Mr. Carroll had all but confessed in the interview. Without the fraud perpetrated by the police this evidence could never have been used. Because the trial was tainted by evidence procured in violation of Mr. Carroll’s sixth amendment right to counsel the conviction should be overturned.
III.
CONCLUSION
Prosecutorial and police misconduct was egregious and pervasive in Mr. Carroll’s trial and resulted in the deprivation of his rights under the United States and New York State Constitutions (CPL 440.10(h)) and in material evidence being adduced by the people in violation of Mr. Carroll’s rights during the trial (CPL 440.10(d). There has been a retroactively effective change in the law controlling the issues previously determined on Mr. Carroll’s appeal through the issuance of the Levandowski opinion. (CPL 440.10. 2(a)) New evidence, not appearing in the record has been established regarding the abridgement of Mr. Carroll’s sixth amendment right to counsel. The Third Department’s Levandowski opinion provides specific guidance to this Court as to the reversible errors made by the prosecutor in the Levandowski case and the instant matter. Mr. Carroll’s conviction was obtained through the same types of egregious conduct that resulted in Levandowski’s reversal– a reversal that was ordered because Levandowski did not get a fair trial. Under those newly announced standards it is abundantly clear that Mr. Carroll didn’t get a fair trial either – his convictions should be overturned.
______________________
Dated:
Attorney for John Carroll
750 Broadway,
(518) 462-7879