Heightened Scrutiny

Although the Supreme Court has found that the death penalty is not per se unconstitutional, the Court has consistently proclaimed the truism that death is a different type of penalty. Death is different primarily in its severity and irrevocability (see Furman v Georgia, 408 US 238 [1972][Stewart, J. concurring]). Because of this difference, the determination that death is the appropriate punishment involves a “heightened 'need for reliability'”(see Caldwell v Mississippi, 472 US 320, 340 [1985], quoting Woodson v North Carolina, 428 US 280, 305 [1976) [plurality opinion]).

By motion, defendant requested the trial court to apply “heightened scrutiny and a heightened standard of due process throughout all of the proceedings in this capital case.” The People opposed the motion, arguing that “it is well-settled that a capital defendant is not entitled to greater rights at all stages of a prosecution on the ground that 'death is different.'” The court denied the motion, finding that neither this Court nor the United States Supreme Court “[has] required the application of such broad elevated across-the-board standard.”[24]

On appeal here, the People argue that the fact that death is different requires heightened reliability only at the sentencing stage.[25] The People's limitation of heightened reliability to the sentencing stage, however, is inconsistent with the Supreme Court's evolving death penalty jurisprudence, which makes clear that regardless of when in the proceedings the issues arise, a trial court's resolution of some issues affecting the guilt determination, as well as the sentencing determination, must comply with the heightened reliability standard (see Caldwell v Mississippi, 472 US at 340; Beck v Alabama, 447 US 625 [1980]).

Initially, the Supreme Court's concerns centered primarily on the procedures under which the death sentence is imposed. In Furman, the Court held that the death penalty in the cases before it violated the Eighth and Fourteenth Amendments. In Gregg v Georgia (428 US 153 [1976]), the Court identified one of several safeguards that addressed the arbitrary and capricious imposition of the death penalty: a “bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information” (id. at 195). While the Georgia death penalty statute reviewed in Gregg satisfied the Furman concerns, the death penalty statute of North Carolina reviewed in Woodson v North Carolina (428 US 280), which mandated the imposition of the death sentence upon a guilty finding, did not. The Court found that

“in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v Dulles 356 US, at 100, 78 S.Ct., at 597 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case” (428 US at 304-305).

Consequently, the rights of a capital defendant are greater than those of a noncapital defendant at the sentencing stage. In fact, a capital sentence proceeding is treated like a trial for purposes of Double Jeopardy (see Bullington v Missouri, 451 US 430, 438 [1981]; Monge v California, 524 US 721, 725 [1998]). In addition, the sentencer in a capital case must consider virtually all of the defendant's mitigating factors (Lockett v Ohio, 438 US 586, 603-605 [1978]; Eddings v Oklahoma, 455 US 104 [1982]). Aggravating circumstances must be proven beyond a reasonable doubt (Lewis v Jeffers, 497 US 764 [1990];

see also Ceja v Stewart, 97 F3d 1246 [9^th Cir 1996]).

In Gardner v Florida (430 US 349 [1977]), the Court found that defendant's right to due process was violated when he was sentenced to death based on information that was not disclosed to him, and thus, he had no opportunity to explain or deny. The Court rejected the holding of an older similar case which was decided at a time when the death sentence was perceived as no different from any other sentence.[26]

The Court has applied heightened reliability to the selection of jurors, who under most death penalty statutes, including New York's, determine whether defendant is guilty or not, and if guilty, whether the death sentence is appropriate (see A.L. Lockhart v McCree, 476 US 162, 182 [1986][citing Witherspoon v Illinois, 391 US 510, 519 [1968]).[27] In Turner v Murray (476 US 28 [1986]), the Court found the lower court's failure to question prospective jurors on racial bias violated the defendant's right to an impartial jury under the Sixth and Fourteenth Amendments.[28] Before Turner, lower courts relied on Ristaino v Ross (424 US 589 [1976]), in which the Court stated that the Constitution did not necessarily require trial courts to question jurors on racial bias simply because the defendant was black and the victim white. The Turner Court distinguished Ristaino because it was not a capital case, and concluded that in capital proceedings involving an interracial crime, upon defendant's request, trial courts must inform prospective jurors of the race of the victim and must conduct voir dire on the issue of racial bias (see Ristaino, 476 Turner Court vacated the death sentence, but left the conviction undisturbed.

In Morgan v Illinois (504 US 719 [1992]), the trial court denied defendant's request to ask jurors whether they would automatically vote for the death penalty, reasoning that the court had asked essentially the same question when it inquired whether each member of the empaneled jury could be fair and impartial and when it asked most jurors whether they “could follow instructions on the law.” The Supreme Court found that the trial court's questions were inadequate, and that the refusal to ask the questions requested by defendant violated his Fourteenth Amendment Due Process Rights. The Court noted that while “the adequacy of voir dire is not easily the subject of appellate review,” it “had not hesitated, particularly in capital cases, to find that certain inquiries must be made to effectuate constitutional protections” (504 US at 730).

The Court has also applied heightened reliability to issues arising during the guilt phase. In Beck v Alabama (447 US 625), the jury found defendant guilty of intentional killing during a robbery or attempted robbery, and as mandated by the death penalty statute, sentenced him to death. The trial court affirmed the death sentence after holding a hearing in which it considered mitigating and aggravating circumstances. Although there was sufficient evidence to support a jury instruction on felony murder as a lesser included offense, the statute specifically prohibited the judge from charging lesser included offenses. The Court reversed the conviction and the sentence, finding that:

“[t]o insure that the death penalty is imposed on the basis of 'reason rather than caprice or emotion, we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination * * *. The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case” (447 US at 638 [footnote omitted]).

The Court did not decide whether the Due Process Clause required courts to instruct on the lesser included offense in noncapital cases.

The Court has also applied heightened reliability to post-sentencing proceedings. In Ford v Wainwright (477 US 399 [1986]), the Court found that because the state court hearing was inadequate, defendant was entitled to a new evidentiary hearing in Federal court to determine whether he was insane. The Court noted that

“[i]n capital proceedings generally, this Court has demanded that fact finding procedures aspire to a heightened standard of reliability. * * * This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different” (id. at 410 [citations omitted]).

The clear teaching of the Supreme Court's jurisprudence is that heightened reliability should apply to any issue in the pretrial phase of a capital case which, if resolved against defendant, would enhance the risk of an unwarranted guilty conviction or death sentence. The Supreme Court's holding in Estelle v Smith (451 US 454 [1981]) supports this position. In that case, during the pretrial phase, the court, sua sponte, ordered the State's attorney to arrange a psychiatric evaluation of defendant to determine his competency to stand trial because it did “not intend to be a participant in a case where the defendant receives the death penalty and his mental competency remains in doubt” (id. at 454 n1). The examination took place without notice to defendant's counsel. During the sentencing phase, over defendant's objection, the psychiatrist testified that defendant was an incurable sociopath who would continue to commit crimes if given the opportunity. In finding that defendant's Fifth Amendment rights were violated because he was not advised of his right to remain silent and that any statement he made could be used against him at a sentencing, the Court noted that “[i]n this case, the ultimate penalty of death was a potential consequence of what respondent told the examining psychiatrist” (id. at 461). The Court also found that defendant's Sixth Amendment right to consult with counsel was violated by the psychiatrist's examination, which assessed his future dangerousness. Estelle is a case in which the Court applied heightened reliability to a determination that occurred at the pretrial stage and which ultimately affected the sentencer's decision to impose the death penalty (see also Ake v Oklahoma, 470 US 68 [1985]).

The need for heightened reliability should not be limited to the sentencing phase. The fact that death is different requires that those who face the risk of death generally be provided with greater rights than those who do not. A defendant faces the risk of death at the point the prosecutor serves the notice of intent to seek the death penalty, not just after conviction (see generally Hynes v Tomei, , 92 NY2d 613, 619, cert denied 527 US 1015 [1998]). Any error that increases the risk of an unwarranted conviction, which would bring the defendant a step closer to death, must be subject to the heightened reliability standard (see Beck, 447 US at 637).

Neither Satterwhite v Texas (486 US 249 [1988]) nor Murray v Giarratano (492 US 1 [1989]) requires a different result. Satterwhite was a straight-forward application of Estelle. The Court found that the use of the psychiatrist's testimony at sentencing was a constitutional violation that required reversal of the death sentence. Reversal, however, was not automatic, but was subject to the harmless error standard set forth in Chapman v California (386 US 18 [1967]). Heightened reliability and harmless error are not mutually exclusive. Harmless error provides that reversal is not appropriate where the state proves “beyond a reasonable doubt that the error complained of did not contribute to the verdict sheet obtained” (id. at 24). The heightened reliability standard seeks to prevent errors from occurring. On direct appeal, heightened reliability calls for heightened review of any error that might have affected the guilt and sentencing verdicts.

Giarratano involved indigent death row inmates who sought state appointed counsel in their appeal of their state convictions in Federal court. The Court declined to provide these capital defendants greater rights than noncapital defendants. The narrow holding of Giarratano is that death is not different when it comes to assistance of counsel for inmates seeking relief in Federal court of their state convictions and sentences.

The application of the heightened reliability standard to any issue which may affect the death penalty is consistent with the recognition in New York law that unjust convictions may occur (see NY Court of Claims Act § 9). A person who has a “claim for damages against the state for unjust conviction and imprisonment” may bring an action in the Court of Claims. The right to monetary compensation, however, can never adequately compensate the person wrongly put to death.[29]

As a matter of public policy, any doubt as to whether the heightened reliability standard should apply to all phases of a capital case is put to rest by the findings of a Columbia University School of Law study entitled A Broken System: Error Rates in Capital Cases, 1973-1995, released in June 2000, and begun in 1991, at the urging of the Chair of the United States Senate Committee on the Judiciary. The study, spearheaded by

Professor James S. Liebman, found that during the 23-year period, 5,760 defendants were sentenced to death nationally (id. at 4). Of those defendants, 4,578 (79%) appealed their death sentences directly to the state's highest court (id.). Some 1,885 (41%) of these defendants had their death sentences reversed (id.). Of nearly all of the remaining defendants, 248 had their death sentence reversed during further post-conviction review at the state level (id.). Finally, 599 of the remaining defendants had their death sentences reviewed in Federal courts, which overturned the death sentences of 237 (40%) defendants because of serious error (id.). Overall, only 313 of those sentenced to death were executed (id.). In summary, “ [n]ationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%” (id. at 5). The “overall error-rate” is “the proportion of fully reviewed capital judgments that were overturned at one of the three stages due to serious error” (id.). “'Serious error'” is defined broadly to include “error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial” (id.). The study identified the most common errors as:

“(1) egregiously incompetent defense lawyering (accounting for 37% of the state post-conviction reversals), and (2) prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty accounting for another 16%-19%, when all forms of law enforcement misconduct are considered)* * *” (id.).

For reversals that occurred at the state-post conviction level,

“an astonishing 82% (247 out of 301) of the capital judgments that were reversed were replaced on retrial with a sentence less than death, or no sentence at all. In the latter regard, 7% (22/301) of the reversals for serious error resulted in a determination on retrial that the defendant was not guilty of the capital offense”[31] (id. [specifying that the statistics include reversals from 1973 to April 2000][emphasis in original]).

Since the occurrence of serious errors was not limited to the sentencing stage, neither should the application of the heightened reliability standard be so limited. While a serious error would, in theory, require reversal without the application of heightened reliability, at the trial level, heightened reliability seeks to avoid such errors. And on appeal, heightened reliability seeks to ensure that a court does not overlook a serious error.

While the two other issues addressed below -- the failure to permit rebuttal testimony and the failure to exclude a juror for cause -- would, standing on their own, require reversal, the case for reversal is made stronger by the application of heightened scrutiny to those rulings.

Rebuttal Testimony

In this case, the jury's determination that defendant did not suffer from extreme emotional disturbance did not meet the heightened reliability standard primarily because the trial court precluded defendant from offering the expert testimony of Dr. Sanford Drob. At the trial, defendant did not dispute that he killed three victims and attempted to kill a fourth. The jury's acceptance of the defense of extreme emotional disturbance was his only hope. Defendant was also aware that if found guilty, the same jury would, at the sentencing stage, decide whether he suffered from post-traumatic stress disorder and whether he committed the murders under emotional distress, both of which were mitigators. Thus, his life depended on whether the jury believed that he was suffering from extreme emotional disturbance. Accordingly, during opening arguments, counsel for defendant focused completely on extreme emotional disturbance. Counsel started by saying, “In this opening statement I want to outline for you our defense. Our defense of extreme emotional disturbance and what we expect the evidence to show.”

The court and the prosecution were aware that defendant had retained Drob, a forensic psychologist, and Dr. H. Westley Clark, a psychiatrist. Drob and Clark were both on defendant's witness list. The defense retained Drob to perform numerous tests on defendant at the urging of Clark who reviewed the results of the tests. Before the trial commenced, defense counsel did not make clear that Drob would be called to testify. In fact, when the prosecutor requested defense counsel to turn over results of the Rorschach test administered by Drob, defense counsel argued that it was unnecessary because counsel was not clear whether Clark had relied on the test, and that “[a]t this point in time we do not anticipate calling Drob in the guilt- innocence phase. At which time we decide otherwise we would of course provide everything that Dr. Drob has done.” At another point, counsel stated that “[o]ur position, Judge, is that Dr. Drob would not be testifying at the guilt-innocence phase.” The prosecutor, on the other hand, argued that “Dr. Drob is on defendant's witness list. Dr. Drob may testify * * * Dr. Martell [the prosecution's expert witness] in the interest of completeness wants to see everything that psychologists and psychiatrists did in relation to this defendant before rendering his opinion.”

Nevertheless, during defense counsel's direct examination of Clark, the prosecutor objected to the question: “Doctor, I am going to ask you to comment, if you will, about Doctor Martell's report and the differences in your mind, if you'd just comment generally.” At an ensuing side bar, the court and defense counsel engaged in the following dialogue:

“COURT: All right, first of all, the jury has no idea what doctor Martell's report is, so what is he going to say?

“DEFENSE: Well, Judge, I think he's only going to comment on Doctor Martell's not finding PSTD (post traumatic stress disorder). I can wait.

“COURT: I think it's better to wait because we have not heard from Martell.

“DEFENSE: He's referred to the report.

“COURT: He hasn't really referred to what his findings were. He just refers to tests that he did. I think it's sort of anticipating Martell's testimony before we know what it's going to be, and I think it would be better to bring him back, I guess.

“DEFENSE: Sure. I can do that.

“COURT: I think that would be better. I think that would be better. This way it's not only confusing. You're getting one person interpreting somebody else and then responding to it.

“DEFENSE: I asked him a question whether to go there or not, but I thought in general, since he'd already talked about the report - _but we can save it.

“COURT: He did not talk about a specific finding. I think we'd better bring him back.”

Defense counsel's direct of Clark ended shortly thereafter, without any further questions about Martell's report.

Early in his direct, Clark sought to convince the jury of two diagnoses of defendant that served as the groundwork for the rest of his testimony. The first diagnosis was that defendant suffered from mild to moderate brain damage due to his having had spinal meningitis as a child. Clark initially suspected that defendant suffered from mild brain impairment because of the unusual number of accidents he had while working for the Army and for the Department of Corrections, and because very often spinal meningitis results in brain damage. To confirm this, Clark asked that defendant be given neuropsychological tests. When asked about the results of these tests, administered by Drob, Clark stated that they confirmed that defendant suffered from mild to moderate brain damage even though his IQ was normal. Since people with mild brain damage often suffer from psychological problems, Clark also reviewed the tests for evidence of such problems. When asked what these tests showed, Clark discussed the results of the Rorschach test, which established the second diagnosis: that defendant functioned in a rigid manner, and tried to go along with authority; that he had a tendency to deny his surroundings; that he displayed a “style of flight into fantasy;” and that he was pessimistic and showed signs of depression.[32] Clark noted that a test administered by Martell, the Million Clinical Multiaxial Inventory-III (MCMI-3), supported the finding that defendant functioned in a rigid way. Clark also quoted from a section of Martell's report which stated that defendant repressed anger.

Clark went on to explain that defendant's “flight into fantasy” was the product of a “chronic pervasive perceptual problem,” which prevented him from “self-monitor[ing] things except in a very rigid way.” This often results in an inability to deal with problems. The mild brain damage, coupled with the psychological problems, led defendant to rely on drugs to manage his life problems. Defendant's neurological and psychological problems, Clark testified, affected every aspect of defendant's life.[33] It affected him in school, in the Army, and more importantly, at the Correction Department. Clark testified that based on his extensive experience with victims of post-traumatic stress disorder, “people who are vulnerable going into high, intense stress [jobs or situations] tend to develop PTSD (post- traumatic stress disorder) at a higher level than people who are not.” Because of his neurological and psychological problems, defendant was vulnerable, and he entered a job that, as Clark explained in detail, is highly stressful.

After setting the groundwork, Clark got to the heart of the testimony: that after talking to defendant, he was satisfied that defendant developed post-traumatic stress disorder after being exposed to numerous stressful experiences, primarily the riot, which constituted the “traumatic” in post-traumatic stress disorder because it produced a sense of fear, horror and helplessness. The second symptom was defendant's recurrent distressing recollection of the trauma. The third symptom was defendant's avoidance of feelings associated with the trauma, such as not associating with correction officers, and failing to recollect important aspects of the trauma. The fourth symptom included defendant's sleep disturbance and difficulty in concentrating.

Clark testified, “Clinically, one [of] the things that the testing did not adequately address, but in clinical he shows post-traumatic stress disorder, which is a[n] important concomitant of all this.” While the tests themselves did not show that defendant was suffering from post-traumatic stress disorder, the diagnosis that defendant had neurological and psychological problems was essential to the diagnosis that defendant developed post-traumatic stress disorder as a result of having a highly stressful job. With respect to Clark's referring to Martell's tests, three references, two of which were general, supported the specific diagnosis Clark was discussing, and were not prompted by a direct question about the tests.

Despite defense counsel's initial ambivalence about whether to call Drob or not, during a scheduling break in the prosecution's cross-examination of Clark, defense counsel reminded the court of Drob, and that the day before he had received “the raw data from Martell.” Defense counsel then explained how he expected to proceed:

“DEFENSE: That [the prosecution's direct of Martell] finishes up, I would need overnight for Drob. However, if we determine that Clark does not need to remain to surrebut Martell and Drob does, it's Drob, then we can proceed tomorrow. If its Clark, then we can proceed Friday, but either way, we both anticipate that there is no problem finishing Friday.

“PROSECUTION: Right.

“COURT: Assume nobody has to be to the dentist, the doctor, the foot doctor, the eye doctor.

“DEFENSE: I think that we'll be able to make a call at the end of Martell's direct. We'll be able to confer with Clark. I mean obviously, if I don't have to surrebut, I don't want to.”

After Clark was cross-examined, and another witness for defendant testified, Martell took the stand. Martell testified that he had observed Clark's testimony, something which the prosecutor noted is out of the ordinary. The reason he did it, Martell testified, was because “Clark has told you and all facts that he was relying on so I can take all of that into consideration in providing you with my opinion.” Immediately thereafter, Martell mentioned that Drob was in the court observing him. The prosecutor then asked, “Clark has moved on to other tasks, is that right, as far as you know?” Martell said that he did not know, and then he said that he did not see Clark in the court.

Martell testified that he examined defendant for two days. The two days were spent “talking and taking tests.” Martell administered either 25 or 26 tests, some of which were different from the ones Drob had administered. Martell juxtaposed the results of his tests with the results of Drob's tests on a chart. Of course, Clark had already testified and defense counsel could not have argued that Martell should not

discuss Drob's tests. For the first half of his testimony, Martell discussed the specific tests he administered and how they compared with Drob's results. Afterwards, the prosecutor asked the following question:

“Q

So overall the conclusion of your testing did you observe any serious problems, neuropsychologically for the defendant?

“A

No.”

During the second-half of his testimony, Martell refuted Clark's conclusions, such as that meningitis is associated with brain damage or that defendant suffered from post-traumatic stress disorder. Afterwards, the prosecutor asked the following question:

“Q

Is there anything in his neuropsychological behavior to suggest that he was upset or emotionally out of control at the time he did these murders?

“A

There is nothing.”

After Martell's cross-examination, defense counsel sought to have Drob, rather than Clark, testify. The prosecution, however, objected, arguing that Drob could have testified on direct, that Clark referred to Drob's material in his testimony, that the defense had an opportunity to criticize Martell during cross-examination, and that the decision not to call Drob on direct was strategic. The court, after listening to Drob's proffer, agreed.

The trial court should have allowed Drob to testify. Given the court's ruling on Clark's direct, that Drob could have testified during defendant's case-in-chief is immaterial. In fact, it appears that until Clark's direct, the defense did not expect to call Drob. The defense expected to rely on Clark to criticize Martell's report. However, when on direct examination defense counsel asked Clark a question addressing the findings in Martell's report, the court told defense counsel not to pursue that line of questioning until after Martell testified. The court's message was clear: once Martell testified, Clark could testify again and defense counsel could then ask him about Martell's report. Thereafter, defense counsel, apparently seeking to keep her options open, informed the court and the prosecutor that she would either call Drob or Clark, not necessarily the latter, as was the court's understanding. The court tacitly agreed, and the prosecutor said “right.” The court and the prosecution were therefore well aware of the defense's intention to call Drob after Martell testified. The need to call Drob to rebut Martell would not have arisen had the court permitted the defense witness, Clark, to answer questions about Martell's findings. It is therefore disingenuous for the prosecution to argue that the decision not to call Drob on direct was strategic.

It is also disingenuous for the prosecution to argue that Clark referred to the report in his direct. In trying to persuade the court to allow the question about the report, defense counsel also stated that Clark had already referred to it. The court, however, stated that while Clark had referred to the tests administered by Martell, he had not referred to the findings of those tests. In any event, Clark was asked only once to comment on the report, and prior to that, he referred to Martell's tests twice in a general sense, and once specifically, only to the extent that they supported the specific diagnosis he was discussing.

The failure to allow Drob to testify was not cured by the fact that Martell was cross-examined by the defense. The criticism by an expert is not the same as criticism by a lawyer. If that were the case, there would have been no need for the prosecution to present Martell, given that cross-examination of Clark would have been sufficient.

Separately, Drob's testimony would have been proper under CPL 260.30, which provides in part that:

“6. The defendant may offer evidence in his defense.

7. The people may offer evidence in rebuttal of the defense evidence, and the defendant may then offer evidence in rebuttal of the people's rebuttal evidence. The court may in its discretion permit the parties to offer further rebuttal or surrebuttal evidence in this pattern. In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case.”

Clark's testimony was thus evidence in his defense, and accordingly, Martell's testimony was rebuttal of Clark's. Under subdivision seven, the defense had the discretion to “offer evidence in rebuttal of the people's rebuttal evidence.” Following defendant's rebuttal, any further rebuttal was subject to the court's discretion. But the decision to offer rebuttal was defendant's right. The statute clearly gives the party that goes first the last word.[34] The court thus erred in refusing to allow Drob's testimony, which, as shown below, would have been proper rebuttal.

This Court has defined rebuttal evidence as either “'evidence in denial of some affirmative fact the answering party has endeavored to prove'” (People v Harris, , 57 NY2d 335, 344-345 [1982] [quoting Marshall v Davies, 78 NY 414, 420][1879]) or evidence which “'contradict[s] the testimony of a witness as to any matter upon which he has been called to give evidence in chief, provided it is not collateral to the issue'” (People v Harris, 57 NY2d at 345 [quoting Ankersmit v Tuch, 114 NY 51, 55][1889]). The first definition recognizes that the party with the burden should present all of the relevant evidence during its case-in-chief. The second definition, however, recognizes that the party with the burden should not be expected to impeach or contradict the testimony of a witness of the answering party before that witness has testified. Thus, evidence offered for the purpose of supplementing the offering party's burden is not proper rebuttal evidence. But if that evidence contradicts a statement of the other party's witness, it is proper rebuttal evidence so long as it is not collateral.

In Harris, the People had the burden of establishing that the defendant intended to kill the victim, her long time lover and companion. During their case-in-chief, the People introduced evidence dealing with the enmity between defendant and the victim, the source of which was the victim's relationship with another woman. The People did not, however, introduce evidence that on the day of the murder, defendant and victim had an argument over the phone in which the victim told defendant to stop bothering him, that she had cheated, and that she was going to inherit $240,000. During cross-examination, defendant denied that the conversation had taken place. The People could have introduced the evidence of the conversation during direct or during cross-examination since it refuted defendant's position that she had gone to the victim's house only to kill herself, and that there was no enmity between the two. Nevertheless, this Court found that it was properly admitted in rebuttal because the prosecution offered the evidence “not to establish an element of its case-in-chief (i.e., intent to kill), but merely to contradict [defendant's] testimony and to disprove the alternate state of mind [she] offered to explain her actions” (id. at 345).

Thus, under Harris, defendant had the right to offer Drob's testimony to the extent it contradicted Martell's testimony, even if it could have been offered on direct. While some of what Drob sought to offer would have been collateral, some of this testimony would have contradicted Martell. The defense attorney stated, “Dr. Drob would be testifying to refute the findings that Dr. Martell has made insofar as his psychological tests.” For example, Drob would have contradicted Martell's equating of the Ray Complex Figure with the Benton test. According to Drob, the two tests were not comparable. Drob also would have contradicted Martell's assertion that poor performance in drawing tests showed only lack of artistic ability or draftsmanship. Drob would have testified that such tests “are the most profound and most useful neuropsychological tests that we have as psychologists.” In addition, Drob would have contradicted Martell's assertion that in the tactile performance test, it is normal for the dominant hand to do better than the nondominant hand. Drob's position was that in this test, the defendant's nondominant hand did better and that this was a clear indication of brain dysfunction.

Also under Harris, defendant had the right to offer evidence in support of his case-in-chief which denied new evidence offered by the People. Martell testified to tests he administered, and any testimony by Drob concerning those tests would have been new. Clark had not discussed most of Martell's tests on direct. Defendant also had the right to challenge Martell's testimony concerning tests administered by Drob. Testimony by Drob, if permitted, would have enabled the defendant to challenge Martell's interpretation of the results of Drob's tests. For example, Drob argued that in the report, Martell noted that the Trail Making test had an irregularity, meaning an error in administering it, which according to Drob means that the test is flawed; yet Martell relied on the results of the test and glossed over the irregularity. A narrow view of rebuttal evidence is not appropriate in cases such as this one in which the evidence consists of the testimony of an expert refuting the testimony of the other side's expert. This battle of the experts increases the reliability of the jury's determination.

Contrary to the view of the Majority, admission of the rebuttal by Drob was not subject to the court's discretion. Section 260.30(7) permits the People to offer rebuttal to defendant's evidence and then permits defendant to offer rebuttal to the People's rebuttal. Only after the People's rebuttal and the defendant's rebuttal does CPL 260.30(7) give the court discretion to permit further rebuttal or surrebuttal. That same section also permits the court to allow evidence “not technically of a rebuttal nature” but which may be allowed “in the interest of justice” (see CPL § 260.30 [7]). Here, the court erred because it concluded that Drob's testimony would be surrebutal

Ultimately, what is significant is that Martell's testimony went unchallenged by an expert. Martell, however, was able to refute the findings of Clark and Drob.

It cannot be denied that the reason Drob did not testify was the court's about-face. The court's conduct would be troubling in any type of case. But it is particularly troubling considering that this is a capital case in which defendant's life depended on whether or not the jury rejected or accepted his extreme emotional disturbance defense. The fact that Drob testified at the sentencing phase of the case was no substitute for testimony that was related to the guilt phase of the trial. At the sentencing phase, the jury did not have the option to decide whether defendant committed the murders while under extreme emotional disturbance. The sentencing sheet did ask the jury whether defendant committed the murders while he was mentally or emotionally disturbed, but not whether he was under “extreme” emotional disturbance.

The verdict sheet also asked whether defendant suffered from post-traumatic stress disorder. Two jurors found that defendant was mentally or emotionally disturbed, and none found that he was suffering from post-traumatic stress disorder. It is impossible to know whether the two jurors who found that defendant was emotionally disturbed would have found that he was under extreme emotional disturbance had they listened to Drob's testimony during the guilt phase. Had one juror accepted the defense, the jury would have been deadlocked. In any event, the reliability of the jury's determination with respect to defendant's mitigation factors is called into doubt by the court's instruction that the jury could reject a mitigating factor even if it was established. Thus, not one of the jurors found that defendant served New York City as a correction officer for almost eight years even though that mitigator was undisputed.

In light of the other errors related to the extreme emotional disturbance defense, it cannot be said that, beyond a reasonable doubt, the failure to allow Drob to testify did not affect the jury's guilt verdict. Whatever the views of the Majority and the Dissent concerning the testimony of Drob, defendant had a right to have a jury determine the significance of that testimony. Defendant was thus prevented from adequately asserting his constitutional right to a defense (People v Hudy, , 73 NY2d 40 [1988], abrogated on other grounds Carmell v Texas, 529 US 513 [2000]); see also Chambers v Mississippi, 410 US 284, 294 [1973][“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.”]).

One of the other errors, as the Majority agrees, was the prosecution's arguing in summation that defendant smiled at Angela Brown, and that he smirked at Detective Whiteside, during their respective direct examinations. The People sought to convince the jury, and this Court on appeal, that the alleged smiling refuted defendant's extreme emotional disturbance defense. We reject that argument, affirming the view articulated in People v Basora (, 75 NY2d 992, 994 [1990]), that a smile is ambiguous and of minimal probative value. It is doubtful, however, that the jury arrived at the same conclusion. When the prosecutor first referred to the alleged smile at Angela Brown, defense counsel objected, but was overruled by the court. It is likely then that members of the jury considered this prosecution argument in deciding that defendant did not suffer from extreme emotional disturbance. Were this a noncapital case, we might have decided, as we did in Basora, that the error did not present a preserved question of law because counsel only made a general objection and failed to ask for a curative instruction (id.). But because this is a capital case, on appeal directly from Supreme Court, not the Appellate Division, pursuant to CPL 450.70(1) and Article IV, section 3(b) of the New York Constitution, the error is reviewable.

Another error, as the Majority also agrees, is the testimony of the family members of the victims. Prior to trial, defense counsel moved to preclude the testimony of the family members on the basis that it would be inflammatory and prejudicial. The court rejected defense counsel's argument, finding that the family members would testify to the effect that “I saw the body, and this is who it was.” In response, the prosecutor confirmed that the family members would “come in and say: This was so and so, my relation, and I went and viewed their body.” During the trial, however, the People, and to a certain extent the court, did an about-face. All of the family members called by the People testified about the lives of the victims, in a few instances, in response to the prosecutor's leading questions. After the family members testified, defendant moved to strike their testimony to the extent it went beyond the approved boundary. The court denied the motion. The People do not dispute that this issue was properly preserved. As the Majority recognizes, the testimony of the family members in this case is indistinguishable from the testimony in People v Miller (6 2 152 [1959]) and People v Caruso (246 NY 437 [1927]).

In Caruso, it was undisputed that the defendant killed a doctor because he believed that the doctor killed his child. “The real issue” was whether defendant “formed the intent to kill [the doctor], and if so, whether the killing was the result of premeditation and deliberation” (id. at 443). Although “horrified at the conceded brutality of [defendant's] acts,” the jury was bound to “decide this issue in a judicial temper. Appeals to sympathy or prejudice can be harmful” (id.). This Court found that the testimony of the doctor's wife “had no materiality upon the issues before the jury. The object of the State is clear. Although, doubtless, the result of 'well intentioned though misguided zeal,' it was an 'unseemly and unsafe' appeal to prejudice” (id.).

In this case, the testimony of the family members was no less an appeal to prejudice. The testimony distracted the jury from the real issue in this case _- whether defendant committed the murders under extreme emotional disturbance. In fact, unlike Caruso or Miller, the People in this case relied on some of the improper testimony of the family members during summation. Nothing said or elicited by defense counsel justified the People's use of the improper testimony. Rather, the prosecution was determined to make the victims and those they left behind the issue in this case. Thus, even the statement of Evelyn Davis that she had five babies, which was arguably properly admitted to show defendant's state of mind, was used by the prosecution in an improper manner. At one point, after stating that Evelyn Davis was the mother of five, the prosecutor invoked the victims as a group, and appealed to the jury, arguing, “They can't ask you for justice. I can.” The prosecutor, thus, went beyond the well-defined limits of summation (see People v Ashwal, , 39 NY2d 105 [1976]), by referring to matters not in evidence (the alleged smile), and by focusing on improper evidence (the family testimony), which led the jury away from the real issue in this case.

There is no doubt that defendant committed three homicides and attempted to commit a fourth. But this does not mean that defendant did not deserve a fair trial on the issue of whether he was suffering from extreme emotional disturbance. The Legislature has declared that a defendant who establishes the defense of extreme emotional disturbance may not be found guilty of murder (or attempted murder), but only of first degree (or attempted first degree) manslaughter, which is not a death eligible crime (see Penal Law §§ 125.20[2], 125.27[2][a]). Because the errors affected defendant's ability to effectively present his extreme emotional disturbance defense, the jury's rejection of the defense did not meet the heightened standard of reliability.

Juror No. 233

Section 270.20 (2) of the Criminal Procedure Law states that if a court makes an erroneous ruling with respect to a challenge for cause, a reversal is required if the defendant exhausts his or her peremptory challenges prior to the end of jury selection.[35]

A decision on whether or not Juror No. 233 should have been excluded for cause must take into consideration the instructions given by the court to the prospective jurors before they were questioned. The Judge gave the following instructions to the prospective jurors:

“If we have a penalty phase, the same jury will determine the sentence and the jury will be given two choices.

One will be life without the possibility of parole and the other will be death.

In reaching this sentence, the jury will be asked to consider and weigh what we calling [sic] aggravating factors and mitigating factors, which are big words for saying aggravating factors are the crime of which he has just been convicted: you will have convicted of him, [sic] and the prosecution will ask you to impose the death penalty based on the nature of this crime and what you heard about it.

The defendant will be presenting mitigating evidence, which is any fact or circumstance relating to the crime, or to the defendant's state of mind or to the defendant's condition at the time of the crime or any testimony or information as to his character, background or record.

And the defendant will ask you to consider those factors and to decide to give him life without parole.

After you heard all of that, you will be sent into the jury room, and I will give you the law on how you consider these things, and then you will go into the jury room and try to reach a unanimous verdict as to these two possible verdicts:

Life without the possibility of parole and death”(emphasis supplied).

Juror No. 233 was asked several times if she would consider child abuse as a mitigating factor and her answer was no. The answers of Juror No. 233 on child abuse, in turn, were tied to her view of whether or not she would consider mitigating factors in determining whether life or death should be the sentence. The defense was not required to go beyond the questions asked in order to establish that Juror No. 233 should have been excused for cause.

Specifically, the questioning of Juror No. 233 included the following question and answer from the prosecution:

“Q

Okay. And you put down any previous life experiences. So I take that to mean that includes all you're shaking your head no? “A

Child abuse, I'm not for that because I don't believe that because everybody is using that now. This is the way I feel. Everybody is using it to get over with something they do. They was abused when they was a child.” The defense asked Juror No. 233 the following questions:

“Q

Now, you were also asked about would you be able to consider things that we might tell you as a reason -- let's assume now that you're on the jury and you've convicted Mr. Harris, okay? We'll just pretend that that's true, all right? And you've convicted him of killing three people and attempting to kill a fourth person and what would meet your criteria for cold blood. And we would have an opportunity to try to tell you stuff to convince you not to sentence him to death, and you said that if we were to give you information that he suffered child abuse when he was a child and that that might have affected his behavior later on, that that would be something that you wouldn't think would matter very much? “A

Nope. “Q

Can you explain why that is? “A

Well, right now I feel like

everyone is using that and anyone, okay, anything they do. Their father might have hit them when they was younger, so now they're going to grow up and hate all -- uh-uh, it just doesn't work with me. The child abuse, m'm m'm. “Q

Now, we talked about child abuse already. Sometimes when people are older. They suffer traumatic experiences also. Do you think traumatic experiences that somebody went through when they were an adult could affect their behavior later on? “A

I believe so, yes. I think so. “Q

Would you feel differently about those kinds of traumas that people went through when they were adults than child abuse? “A

What kind of traumas? You mean someone suffered child abuse, as an adult just being abused? THE COURT: Give her some examples.

“Q

In this case you might hear evidence that Mr. Harris was a corrections officer, that he was involved in protecting another officer's life during an inmate riot and that he suffered significant traumatic damage at that time, psychiatric damage as well as physical -- you know, pummeling. Is that something that you could take into account as something that could affect some of his behavior later on? “A

Yes. “Q

And why do you feel differently about that than you do about child abuse? “A

Because child abuse to me really -- I mean in some ways, depending on - - I don't think a lot -- I don't really believe that everyone is being abused lately. Now we're hearing about -- what I hear, everyone is saying they was abused for everything they've done: It's because when I was two, my father hit me or when I was three, my mother touched me. I don't believe it. I don't believe it at all.”

The defense attorney challenged Juror No. 233 for cause, stating that “her inability to consider and give any weight to one of what will be one of the relevant mitigators is the basis to disqualify her from [sic] cause from serving on the jury.” The prosecutor stated that he would “rely on the record.”

The Trial Court denied the challenge. In addition to stating that it felt the juror would be open to a persuasive argument, the Court stated, “So leaving aside the question of whether every mitigator must be accepted by the juror, I have yet to decide, I don't think this is an enumerated mitigator. It is not like intoxication.”

Juror No. 233 stated that she would not consider child abuse in determining whether to impose a sentence of life imprisonment without parole. Thus, the challenge for cause should have been granted. A juror who cannot consider a mitigating factor is incapable of rendering an impartial verdict (see generally n4). In addition, nothing in CPL 270.20(f) authorizes the court to consider separately a juror's views on the guilt and sentence phases of the trial.

In People v Arnold (, 96 NY2d 358, 368 [2001]), this Court upheld the reversal of a conviction where a juror “volunteered that she had a predisposition that might prevent her from being impartial in a domestic violence case.” This Court's analysis in Arnold is particularly relevant in the present death case:

“Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused (see, People v Blyden, , 55 NY2d 73, 78; see also, People v Torpey, , 63 NY2d 361, 367-369). By contrast, where prospective jurors unambiguously state that, despite preexisting opinions that might indicate bias, they will decide the case impartially and based on the evidence, the trial court has discretion to deny the challenge for cause if it determines that the juror's promise to be impartial is credible (see, People v Williams, , 63 NY2d 882, 884- 885, 483 NYS2d 198, 472 NE2d 1026)” (96 NY2d at 363).

The duty of the defense attorney was complete when he established that the juror might not be impartial on a mitigating issue that could be determinative of life or death. It was then up to the prosecution and the court to establish that notwithstanding these views, the juror could be fair.

Hynes v Tomei

In United States v Jackson (390 US 570 [1968]), the Supreme Court struck the death penalty provision of the Federal Kidnaping Act (18 USC § 1201 [a])[36] because it "authorized the death penalty only on the recommendation of a jury, while a defendant convicted of the same offense on a guilty plea or by a Judge escaped the threat of capital punishment" (Hynes, 92 NY2d at 621). In a series of 1971 cases in which death sentences were imposed after trial under a constitutionally defective North Carolina statute, the Supreme Court summarily reversed the death sentences, relying on Jackson. In those cases (see Atkinson v North Carolina 403 US 948; Childs v North Carolina, 403 US 948; Hill v North Carolina, 403 US 948; Roseboro v North Carolina, 403 US 948; Sanders v North Carolina 403 US 948; Williams v North Carolina, 403 US 948), the Supreme Court succinctly stated: “Judgment, insofar as it imposes the death sentence, reversed, United States v Jackson, 390 US 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)” (see also Funicello v New Jersey, 403 US 948 1971] [construing a New Jersey statute]; Thomas v Leeke, 403 US 948 [1971] [construing a South Carolina statute]).

In Hynes v Tomei (, 92 NY2d 613), this Court held that it was unconstitutional for a defendant charged with first degree murder to plead guilty to capital murder under a statute that permitted a death sentence after a jury trial but did not permit a death sentence on a plea of guilty (id. at 629 n7). The Court found that the statute "explicitly provides two levels of penalty for the same offense, imposing death only on those who assert innocence and proceed to trial" (id. at 620). The Court struck the plea provisions[37] so that "a defendant [could not] plead guilty to first degree murder while a notice of intent to seek the death penalty is pending" (id. at 628).

The same issue operates in the present case as defendant was made to choose between entering a plea or going to trial, a scheme that was declared violative of Jackson in Hynes.

Assuming a new trial occurred, a relevant question would be whether the defendant could again face the death penalty. While a retrial leading to death would raise constitutional questions, the focus of the arguments before the Court was not on retrial. Several options are available. First, prior to a retrial, this Court could direct further argument limited to that issue. Second, this Court could hold this appeal in abeyance and remand the case for argument on this issue, with any decision of the trial court being immediately appealed to this Court. Third, we could vacate the judgment and direct the district attorney to state whether, on retrial, he would seek the death penalty. If he does, defendant could bring an article 78 proceeding. In that way, the parties would know whether the death penalty could be imposed and the retrial conducted under the heightened scrutiny applicable to death cases.

Accordingly, I would reverse both the conviction and the sentence.