People v. Howell , 3 A.D.2d 153 ( 1957 )

Breitel, J. P.

Defendant Howell has been convicted, after a jury trial, of murder in the second degree, and sentenced for a term of not less than 40 years, nor more than his natural life. He appeals from the conviction and urges, among others, two principal grounds for reversal and dismissal of the indictment.

The first ground urged for reversal is that the verdict upon the trial was against the weight of the credible evidence. There is no claim of insufficiency of proof. The second ground urged is that the indictment must be dismissed, because it clearly appears that there was an insufficiency of evidence before the Grand Jury which returned the indictment.

The conviction should be affirmed.

The court is unanimous in finding that the verdict returned in this case, finding the defendant guilty of murder in the second degree, is amply supported by the trial evidence. With regard to the testimony of the witness Sanders, who was awaiting sentence on his third felony conviction, the question raised for the jury was primarily that of credibility. All of the elements that should have been weighed by the jury were presented to it, especially under the astute cross-examination of able and experienced counsel. Moreover, the jury received a proper charge by the trial court on the factors to be considered.

Disagreement, however, exists among the court with respect to whether, and with what effect, the Grand Jury minutes should be considered in disposing of a motion to dismiss the indictment on the ground of evidentiary insufficiency before the Grand Jury, which motion is also before us.

It is the majority’s view that, unless defendant, at this stage of the proceedings, can establish, from whatever source, by clear and satisfactory evidence, first raised by motion made before judgment, that there was an insufficiency of proof before the Grand Jury, the indictment is presumed valid and regular. (People v. Nitzberg, 289 N. Y. 523; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; People v. Van Allen, 275 App. Div. 181.) Moreover, it is noted that a motion to inspect Grand Jury minutes, as distinguished from the principal motion to dismiss the indictment for evidentiary insufficiency, is not appealable. (Matter of Montgomery, 126 App. Div. 72, appeal dismissed 193 N. Y. 659; People v. Strauss, 165 App. Div. 58; People v. Harrell, 282 App. Div. 1051; see Code Crim Pro., §§ 485, 517.)

In holding that a motion to inspect is not appealable, it is not decided that Grand Jury minutes may not be examined on a motion to dismiss the indictment. The motion to inspect is to provide counsel with the inspection. The two motions, although frequently coupled, are not to be confused with one another. The motion to dismiss for evidentiary insufficiency raises a question for the court, in which event it should examine the minutes, but only if defendant supplies extrinsic proof that there is evidentiary insufficiency. This is the rule, as laid down in the Nitzberg, Sexton, Glen and Sweeney cases (supra); although, in fact, in none of these cases did the court actually examine the Grand Jury minutes.

It is necessary, now, to turn to the evidence received upon the trial. That evidence serves, in this case, two purposes. One is relevant to sustaining the verdict. The other relates to the extent of the proof to show evidentiary insufficiency before the Grand Jury.

The undisputed proof is that on August 28, 1953, one Ryan, in the afternoon of that day, entered the apartment house in which the victim resided. The victim, Lewis, president of his union, had come home from his union office and had just reached his apartment door. Ryan entered the apartment house, his face covered by hand and handkerchief, and, although there was an elevator available, took the stairway to the fifth floor. Minutes after he entered, the firing of several shots was heard. Ryan was then seen running out of the apartment house with his face again covered. He was pursued by the doorman, who had previously observed him entering and leaving the apartment house, and the pursuit was picked up by a uniformed patrolman in the neighborhood. The policeman and Ryan exchanged shots. Ryan then approached a maroon Ford automobile which belonged to the wife of defendant Howell. He had a brief conversation with the driver, and then the automobile drove off as the policeman and Ryan continued their shooting duel. The duel ended in Ryan’s death on the street. Near him was found a .45-caliber automatic pistol, with three unexpended cartridges in the magazine. In his pocket was found a brown paper bag containing an empty clip for the pistol and nine unexpended cartridges.

The victim, Lewis, was shot five times. At least one of the bullets made its entrance from the back and its exit from the front. Two of the shots were sufficient to prove fatal, and near the body of the deceased victim were found seven discharged shells. The shells were .45-caliber automatic pistol cartridges, and had been fired from Ryan’s pistol.

On the foregoing proof, a clear case of premeditated and deliberate murder in the first degree, by Ryan, was established. The nature of the weapon used, the nature of the wounds sustained, and the immediate circumstances preceding and following the commission of the crime established the nature and degree of the crime. (People v. Harris, 209 N. Y. 70; Thomas v. People, 67 N. Y. 218; People v. Weiss, 290 N. Y. 160,162-163.)

We now turn to the principal proof connecting defendant Howell with Ryan in the commission of the crime. It is conceded that Ryan and Howell were acquainted with one another. Both, incidentally, had criminal records. On the two nights preceding the killing, and in the preceding night extending into the early hours of the morning, the two men were in one another’s company. There was also evidence of Howell’s association with the union and various figures in the union. A witness placed the gunman, Ryan, in the Howell automobile, the maroon Ford, in the company of Howell the day preceding the killing. When Ryan fled from the apartment house, after the shooting of the deceased, he was seen to run to the Howell Ford, which was moving slowly down Jerome Avenue, the next street, separated by a park, from Crestón Avenue on which the victim’s apartment house was located.^* Ryan ran through the park, stopped the car, opened the door, and spoke with the driver. The policeman identified the driver as the defendant Howell. As the shooting resumed, Howell drove off, alone, in the automobile. The automobile was later found abandoned in Manhattan with a bullet-crease dent in one of its fenders. Howell, concededly, stayed in hiding, away from his home, and away from his family, until he surrendered voluntarily on September 13.

When Howell was taken into custody, he denied that he had been in The Bronx on the day of the killing, and he denied that he had been in possession of the automobile on that day. He claimed that he had lent the automobile to Ryan. If the People’s witnesses are credited, these pretrial statements were false.

Upon the trial, Howell testified in contradiction of several People’s witnesses, including his workmen’s compensation physician, that he had not been in The Bronx, or in Hew York, for the two weeks preceding the killing. If the People’s witnesses are credited, this trial testimony was false.

The presence of defendant Howell in the automobile near the scene of the crime, his flight alone when he saw that Ryan was being pursued by the policeman, his status as a fugitive for over two weeks and his statements upon being taken into custody, and upon the trial, if believed to be false, constituted strong evidence in the circumstances of this case that Howell was an accomplice of Ryan in the commission of the premeditated crime, for which purpose Ryan had gone to the deceased’s apartment house.

While it has been repeatedly said that flight from the scene of a crime, continuing fugitive status, and even false statements may have no precise weight or value assigned (People v. Leyra, 1 N Y 2d 199, 208-210), nevertheless, when considered together with all the circumstances of the case there may arise a higher degree of guilt indication. (People v. Ogle, 104 N. Y. 511; People v. Willett, 213 N. Y. 368, 386-387; People v. Meehan, 256 App. Div. 268.)

True it is that the flight, continuing fugitive status, and even false statements may be explained away. But, when instead of explanation, false denial of the events, referring to denial of presence at, and flight from, the scene of the crime, there is no innocent explanation at all.

The foregoing was not all the proof offered by the prosecution upon the trial. In addition, there was the testimony of Sanders, a thrice-convicted felon, awaiting sentence for his most recent robbery. He and Howell had known one another since 1945. He had also known Lawrence Lynch, one of the figures in the union of which the deceased victim was the president, and with whom Howell was acquainted. After Howell’s surrender and his detention in prison, they met there. These old acquaintances engaged in conversation. Sanders asked Howell why he had surrendered. Howell proceeded to tell Sanders, according to Sanders, that he believed the prosecution had no case and that his situation would be worsened, if he remained a fugitive. He told of the plan to kill Lewis in connection with the situation in his union, and even of the attempted clearance of the plan with their mutual acquaintance, Joe Fay, in Sing Sing Prison. He then began to blame his difficulties on the gunman, Ryan, because Ryan, instead of walking to the automobile so as not to cause any attraction, had run toward the automobile. He explained that he had not used a stolen car because he, Howell, had to “ hang around the house, Lewis’ house for a few days trying to catch Lewis, and if I used a stolen car, I might have been picked up ’ ’. He said that they had to keep the gun in the car and a stolen car would make the situation unsafe. He explained how he had waited for Ryan and that he had not left until he saw Ryan get shot and fall down. He described later events while he was a fugitive. These conversations were repeated and developed during the ensuing days that the two men met in the jail.

The foregoing testimony, if believed, provided complete confession.^* The jury, by its verdict, believed that testimony. It had available to' it all the information concerning the criminal background of Sanders and the fact that he was in a position and expected to gain from the authorities, if he co-operated. On the consideration to be given these circumstances, the jury was properly charged by the trial court.

Consequently, the case upon which the verdict in this case rests is sufficient.

It now becomes necessary to consider the second ground for reversal and dismissal of the indictment as urged by defendant Howell. This ground rests upon the claim that it clearly appears that the indictment returned by the Grand Jury was not supported by sufficient evidence. The critical fact in support of this contention is that the fellow prisoner, Sanders, concededly, did not testify before the Grand Jury which returned the indictment. Before the trial, on September 30,1953, defendant Howell made the usual combination motion, on affidavit, for an inspection of the Grand Jury minutes and to dismiss the indictment for insufficiency of evidence before the Grand Jury.

The affidavit on the motion to inspect, made by Howell’s attorney, asserted that the press reports indicated to him that the prosecution could not have had any evidence as to the circumstances under which Ryan killed Lewis. He argued that in the absence of such circumstances it could not be determined whether Ryan had committed any crime, and if he had, what crime, and if for homicide, in what degree, so as to implicate Howell. It was argued that the evidence of flight was insufficient in the absence of other proof to supply the omission. That motion was denied.

The motion was renewed, however, upon the trial, or at least that part which requested dismissal of the indictment, before the prosecution had rested. At this time, it was argued that the only evidence which the Grand Jury could have had, at the time it returned the indictment, was that of the witnesses who had placed Howell near the scene of the crime, that he had fled from that scene, and that, without the testimony of Sanders, there was nothing to connect Howell with Ryan in the commission of a murder, or even of a felony. It should be noted at this time that the Grand Jury had returned an indictment for murder in the first degree, although, the verdict upon the trial was for the lesser crime of murder in the second degree.

It becomes appropriate then, at this point, to consider the alleged proof of insufficiency of evidence before the Grand Jury. The affidavit on the motion made before trial obviously does not approach establishing such insufficiency. There is speculation based upon newspaper reports as to what witnesses and what testimony was available to the prosecution. There is nothing to indicate who the witnesses actually were, or to what they testified.

When the motion was renewed upon the trial, the proof was somewhat better, but still fell short of the test that it must clearly appear that the proof was insufficient. Based upon the fact that Sanders, the fellow prisoner, did not testify, defendant Howell infers that the only testimony available before the Grand Jury was that of the witnesses who testified at the trial, other than Sanders. Assuming that to be true, the evidence was sufficient, although, of course, not as strong as upon the trial.

There was evidence of the premeditated killing of Lewis by Ryan. There was evidence of Howell’s association with Ryan and the. meeting with Ryan two days before the killing. There was evidence that Howell was in the automobile in the neighborhood of the scene of the crime, to which Ryan directly fled when he ran from the deceased’s apartment house across the park to Jerome Avenue. There was evidence that Howell’s car, with Howell driving it, was moving slowly and had just come to a double-park when Ryan approached his car. There was evidence that, when the shooting duel resumed, Howell fled, alone, with the automobile, later abandoning the automobile in Manhattan, and became a fugitive for over two weeks.

It is the evidence that when Howell surrendered, he made false assertions as to his whereabouts on the day of the crime, his presence in the automobile at the scene of the crime, and that he had lent the automobile to the gunman Ryan. This evidence, if unexplained or uncontradicted, pointed the finger of guilt at Howell. And that finger of guilt refers to guilt of a crime. In this ease the only relevant crime is that of the premeditated killing perpetrated by the gunman, Ryan. Surely, then, it was reasonable for the Grand Jury to infer that Howell was waiting in the maroon Ford with the purpose of providing a quick get-away. While it is true that innocent explanation of his conduct, such as fear and confusion, if believed, might dissipate or rebut the inference to be drawn from flight, fugitive status and false assertions upon apprehension •— this is the stuff which goes before a trial jury to explain or contradict the evidence which otherwise warrants a Grand Jury to charge one with crime.^*

Hence, in this case, there was sufficient evidence before the Grand Jury to sustain the indictment, even if we assume, as is concededly true, and as argued by defendant, that the testimony of Sanders was not available to the Grand Jury. It follows that defendant has not sustained the burden of showing evidentiary insufficiency before the Grand Jury, but indeed the contrary appears. In that posture, we are not required to, nor should we, go beyond the immediate record for the purpose of evaluating the sufficiency of the proof before the Grand Jury. Although we have viewed the minutes, their contents are regarded as immaterial, for the reasons stated earlier. If they were material, we would hold them sufficient to sustain the indictment (see n., p. 161, supra). In any event, the indictment, presumed valid under the authorities cited earlier, in the absence of clear proof to the contrary, has served its function in bringing the defendant to trial. The verdict, sustained by sufficient proof, is tested now by that proof and the fairness of the trial.

The judgment of conviction should be affirmed.

* Had the Ford awaited the gunman in front of the house where the shooting occurred, apart from possibly attracting attention, a speedy getaway would have been frustrated by the fact that it was a one-way street ending a half-block away at the park, and with a one-way right turn leading into the congested traffic of the Fordham Road area — almost a cul-de-sac.

* There are discrepancies between Howell’s alleged narration of the crime to Sanders, and the events as they are known from the lips of the other witnesses, including police, in the case. If anything, this suggests the truth of Sanders’ testimony; for, if his testimony had been suggested to him, the usual exact conformance might be expected. Moreover, the discrepancies could arise from the fact that Howell might have wished to place a better face on his conduct in leaving Ryan to be shot down by the policeman. For example, Howell, according to Sanders, said that Ryan never got nearer to the Ford than a half-block away, although the eye-witness testimony is that he reached the Ford, opened the door, and spoke with the driver, Howell.

* In the context of this case it is not necessary, therefore, to consider whether the degree of proof before a Grand Jury, as distinguished from proof of the several elements of the crime, must be the same as before a trial jury. But a caution is certainly suggested. A trial jury in a criminal case must be satisfied by the evidence beyond a reasonable doubt. A Grand Jury in order to return an indictment must have before it sufficient evidence to warrant a conviction, if not explained or uneontradieted. (People v. Bob, 233 App. Div. 94.) Obviously the test of nonexplanation or noncontradiction is not one that is submitted to a petit jury, even when the defendant rests on the People’s case. There is a much higher standard required before the trial jury, presumably, even on motion made at the close of the prosecution. Thus, for example, testimony of a degraded, uncertain or confused person, containing, nevertheless, the elements of a crime, might sustain an indictment, on motion, where it would not meet the test, if that were all that were offered, to justify a trial verdict of guilty beyond a reasonable doubt. Would a court dismiss an indictment obtained on the testimony of an eight-year child concerning a sex crime committed on her, absent corroborative evidence of the identity of the offender? Hardly. (See People v. Ortiz, 180 Misc. 879; People v. Peary, 249 App. Div. 851; People v. Sexton, 187 N. Y. 495, 513, supra.) That the test applicable to circumstantial evidence should be applied differently with respect to Grand Jury evidence, see dissenting opinion by Bergan and Halpern, JJ., in People v. Leary (280 App. Div. 679, 686, revd. 305 N. Y. 793).

On any view, however, whether evidence before a Grand Jury warrants a conviction, given some evidence of each of the elements of the crime, sometimes referred to as a prima facie case, it is now quite clear that such determination is one to be made exclusively by the Grand Jury. So, in People v. Eckert (2 N Y 2d 126, 129) the Court of Appeals said: “In this instance that determination was for the Grand Jury in its capacity as arbiter of credibility and of the weight to be given to the evidence (People v. Vaccarella, 257 App. Div. 461; People v. Bob, 233 App. Div. 94). That a trial jury might not convict on this evidence is not our concern. The Legislature has specifically relegated the question of whether a trial jury would return a conviction on this evidence to the judgment of the Grand Jury (Code Crim. Pro., § 251).” The earlier discussion in the case referred, undoubtedly, to the standard of proof for circumstantial evidence before a trial jury in order to sustain a verdict, and thereby, the indictment.