OPINION
Chief Justice CASTILLE.
In this direct capital appeal, which has yet to be briefed, appellant Andre Staton's court-appointed counsel Thomas N. Farrell, Esquire (hereafter "counsel"), filed a Motion to Withdraw on July 21, 2010, alleging that appellant sent correspondence to counsel "terminating" counsel's representation. Counsel believed that appellant's correspondence created an obligation to move to withdraw. On the merits of the motion, however, counsel forwards a novel and cogent argument against withdrawal, which occasions this Opinion, and which we will discuss below. F or the reasons stated herein, we deny counsel's request to withdraw and direct him to file his brief.
Appellant was tried in the Court of Common Pleas of Blair County on homicide and related charges, with the Honorable Elizabeth Doyle presiding. On May 2, 2006, a jury found appellant guilty of first-degree murder and related crimes. The following day, the jury returned a sentence of death based on its finding that two aggravating circumstances outweighed four mitigating circumstances. See 42 Pa.C.S. § 9711(c)(1)(iv). On June 1, 2006, the trial court formally imposed the sentence of death. See Post-Verdict Motions Opinion and Order dated June 25, 2007. On July 25, 2007, appellant filed an appeal directly to this Court from his judgment of sentence. See 42 Pa.C.S. § 9711(h)(1).
The trial court entered an order appointing current counsel on June 30, 2009; counsel is appellant's seventh attorney in this case. On July 30, 2009, the Supreme Court Prothonotary set the initial due date for appellant's brief at September 10, 2009. Counsel has received multiple extensions of time and the brief ultimately was due to be filed on August 11, 2010, with no further extensions to be granted. On August 4, 2010, however, counsel filed an Emergency Motion to Stay Briefing Schedule, pending this Court's resolution of counsel's request to withdraw. The briefing stay request was granted and we are now in a position to rule upon counsel's withdrawal request.
The reasons for the multiple changes in counsel are not relevant to the question presented. In at least one instance, however, appointed counsel was removed after the Supreme Court Prothonotary's search of the Continuing Legal Education Board's website indicated that she was not qualified to represent a capital defendant under Pa.R.Crim.P. 801.
The initial delay in the briefing schedule was due to appellant filing a Petition to Remand the Appeal Back to the Lower Court for a Hearing. This Court granted the Petition on January 25, 2008, and remanded the matter to the trial court while retaining jurisdiction. The trial court entered an order on August 14, 2008, concluding that there were no further meritorious issues to be raised on direct appeal. Thereafter, present counsel entered his appearance with this Court on July 29, 2009. On August 7, 2009, appellant filed a Motion to Stay Briefing Schedule. W e treated the motion as a request for an extension of time and granted the request on October 13, 2009, extending the time to file the appellate brief for 90 days. Subsequently, there were two additional extension requests, which were granted, setting the final due date for appellant's brief for August 11, 2010.
The Motion to Withdraw alleges that, on June 7, 2010, appellant attempted to file a pro se post-trial motion with the trial court, in which he purported to "terminate" appointed counsel's representation and sought leave to represent himself. Counsel attaches a copy of the motion as Exhibit 1, and notes that the trial court forwarded it to him pursuant to Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993), which forbids hybrid representation. The attached motion is titled "Post Trial Motion by the Defendant Andre Staton Terminating Counsel and Seek [sic] Leave to Represent Himself." The first two paragraphs of the motion express appellant's desire to terminate counsel's representation and proceed pro se by stating:
The Defendant Andre Staton Court Appointed Attorney Thomas N. Farrell, Esq.: Legal Representation Services are Terminated. Due to Conflict of circumstances and irreconcilable differences.
The Defendant Andre Staton hereby moves this court for leave to represent himself. Invoking his State and Federal Constitutional right pursuant to Pa.R.Crim.P. pending colloquy.
See Motion to Withdraw as Counsel, Exhibit 1. The remainder of appellant's
pro se motion is confusing to say the least: appellant's primary complaint indicates a desire to litigate post-verdict motions, and complains that counsel merely filed a "statement of matters [complained of on appeal]." The motion thus reveals that appellant did not appreciate the procedural posture of the case. Appellant also does not specifically speak to whether he desires self-representation on appeal.
In his Motion to Withdraw, counsel also alleges that after appellant filed his motion, appellant sent correspondence to counsel confirming that he is purporting to "terminate" counsel's representation. Counsel avers that under such circumstances, he has an ethical obligation to submit a motion to withdraw from his appellate appointment under Pa.R.Prof.C. 1.16(a)(3) (counsel "shall withdraw from t he representation of a client if [he] is discharged"). Counsel asserts that he has "vigorously represented" appellant and would continue to do so, but believes he must submit such a request given Rule 1.16(a)(3).
Although counsel submits his request to withdraw premised upon the indigent appellant's purported "discharge" of him and expressed desire to represent himself, counsel actually argues against granting the Motion, citing several reasons. First, according to counsel, the constitutional right to self-representation is grounded in the Sixth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. Counsel argues that in 2000, the U.S. Supreme Court held that there is no Sixth Amendment right to self-representation for purposes of appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152 (2000). Counsel asserts that this Court's cases holding that there is a right to self-representation for purposes of appeal have consistently cited to the U.S. Supreme Court case of Faretta v. California, 422 U.S. 806 (1975). Faretta held that the Sixth Amendment established a right to self-representation at trial, id. a t 819-20; counsel argues that, following Martinez, it is now clear that there is no analogous federal right to self-representation on appeal. Counsel points out that the Martinez Court distinguished Faretta because the federal right of appeal is not constitutional, but statutory. Counsel further notes that in Martinez, the High Court recognized that states obviously could "recognize such a right under their own constitutions," but alleges that this Court has never decided whether Article I, Section 9 of the Pennsylvania Constitution is distinct from the U.S. Constitution for purposes of determining if there is a Pennsylvania constitutional right to self-representation on appeal. Thus, counsel concludes that this Court must determine whether a constitutional right of self-representation on appeal exists in Pennsylvania before we may consider granting the motion to withdraw to allow for such representation.
Second, counsel argues that even if this Court were to recognize a right to self-representation on appeal under the Pennsylvania Constitution, the right is not absolute. Instead, this Court has indicated that it will limit the right to self-representation when it would lead to unnecessary delay or disruption of the judicial process.See Commonwealth v. Rogers, 645 A.2d 223, 224 (Pa. 1994) (no Grazier hearing warranted when request to proceed pro se was forwarded after counsel filed appellate briefs). In this case, counsel urges us to invoke the Rogers procedural limitation on a claim for self-representation, as it is clear that appellant is of the mistaken belief that post-trial proceedings have not been completed, and because granting his request will only delay the already-delayed proceedings on appeal.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
Third, counsel makes a brief averment that even if this Court were to recognize a right to self-representation on appeal under the Pennsylvania Constitution, we should not extend the right to capital appeals. Counsel also asserts that he was prepared to submit a brief in this matter, as required, on August 11, 2010, again suggesting that allowing appellant to proceed pro se at this juncture would only delay this matter further, as it certainly would.
Counsel has also filed a Motion to File Briefs and/or to Present Oral Argument as to Whether Appellant has a Right of Self-Representation. Counsel reiterates his view that the self-representation question is a "highly significant" issue of first impression in Pennsylvania. As this Court concludes that it can timely dispose of the motion to withdraw based upon the pleadings before us, we deny the request for further briefing and oral argument.
The Commonwealth has not filed a substantive reply to the issues raised by counsel. Instead, the Commonwealth has filed a No Answer Letter in reply to the Motion to Withdraw. In the letter, the Commonwealth states that it "believes that the first inquiry in this matter needs to be whether or not the Appellant has a right to represent himself on this appeal." The Commonwealth offers no view on the merits of that first inquiry.
Counsel's withdrawal motion presents an issue, novel in Pennsylvania, respecting the question of entitlement to self-representation on appeal. When an appellate court, including this Court, has been presented with a timely request to proceed pro se on appeal, the court generally has remanded for a "Grazier hearing" to determine if the waiver of counsel is knowing, intelligent, and voluntary. In Grazier, which was decided before Martinez, this Court indicated that a defendant-appellant in a criminal case has a right to self-representation on appeal, citing to Ellis and Faretta. Grazier, 713 A.2d at 82 ("Ellis expressly recognized the right to proceed without the assistance of counsel: "[a] represented appellant may petition to terminate his representation; he may, acting pursuant to the rules of criminal procedure, proceed on his own behalf."). We then directed that when an appellant in a criminal case asks leave to proceed pro se, a remand for a hearing was necessary to determine whether the appellant wishes to waive counsel, and if so, whether the waiver of the right to counsel for purposes of appeal is knowing, intelligent and voluntary. Id.
The specific question presented in Ellis was whether the Superior Court was obligated to review a pro se brief submitted by a represented criminal appellant, i.e., whether the appellant was entitled to hybrid representation on appeal. The Superior Court reviewed the question, noting that in Pennsylvania there is a constitutional right to appeal and a right to an attorney at trial. Commonwealth v. Ellis, 581 A.2d 595, 597 (Pa. Super. 1990) ( en banc). The Superior Court then cited to Faretta, explaining that "growing out of the" Sixth Amendment was the right to self-representation. The court also cited to two other intermediate appellate court cases wherein it had permitted an appellant to proceed pro se on appeal.
Thereafter, in our Ellis opinion, we adverted to the fact that the Superior Court had cited to Article V, Section 9 and Article I, Section 9 of the Pennsylvania Constitution, as well as Faretta, in addressing the hybrid representation issue. Our independent analysis of the question, however, did not include any references to the Pennsylvania Constitution. Instead, we reiterated what we had previously stated inCommonwealth v. Colson, 490 A.2d 811, 821 (Pa. 1985), wherein we merely cited Faretta for the general proposition that a defendant has the right to proceed without counsel. Ellis, 626 A.2d at 1139.
Counsel, however, has identified a legitimate question as to Grazier's continuing vitality in light of the U.S. Supreme Court's subsequent pronouncement in Martinez; this Court has not had the opportunity to squarely address the High Court's Martinez decision.
This Court has addressed the substance of the Martinez case in only one prior decision, Commonwealth v. Davido, 868 A.2d 431, 444 (Pa. 2005). I n Davido, the appellant invoked Martinez to question whether a defendant could be permitted to proceed pro se during the penalty phase of a capital trial. Davido held that the Sixth Amendment right to self-representation applied to a capital trial, including the penalty phase. Accordingly, we distinguished Martinez on that basis. The Superior Court addressed Martinez in Commonwealth v. Faulk, 928 A.2d 1061, 1065 n. 3 (Pa. Super. 2007), concluding that, in contrast to Martinez, this Court has held that the right of self-representation continued on appeal. Faulk cited to Grazier for this proposition. But, as will be discussed herein, it is apparent that Grazier ultimately relied on federal constitutional principles, and thus, the issue counsel identifies persists.
In Martinez, the Court confronted the question of whether the appellate courts of California could deny a criminal appellant's request to represent himself on appeal, without violating the federal Constitution.Martinez, 528 U.S. at 154. The Court first explained that in Faretta, it had held there was a Sixth Amendment right to self-representation for purposes of trial. The Court then distinguished the circumstances on appeal, noting that there was no historical consensus establishing a federal right to self-representation on appeal. Indeed, the Court pointed out that appeals as of right in federal court were nonexistent until more recent times and thus appellate review of any sort was rarely allowed.Id. a t 157-59. T Court also indicated that Faretta's reliance on the rights embodied in the Sixth Amendment was not relevant. This was so because those rights were particular to the basic rights that a defendant shall have in "all criminal prosecutions," i.e., rights at trial, but do not speak to rights on appeal. Instead, the Court explained, the federal right to appeal in criminal cases is purely statutory in nature. Id. at 159-60. Turning then to the Fourteenth Amendment, the Court rejected the notion that a right of self-representation on appeal, binding upon the states, could be found in that provision; in so holding, the Court noted that a state's interest in the fair and efficient administration of justice at the appellate level outweighs any interest in appellate self-representation. Id. at 162. Thus, the Court concluded that California was not required to recognize a federal constitutional right to self-representation on direct appeal, but noted, of course, that the states were not precluded "from recognizing such a right under their own constitutions." Id. at 163.
Based on Martinez, counsel argues that this Court's finding that there is a federal constitutional to self-representation on appeal, as reflected by the procedure set forth in Grazier, has proven to be erroneous. More specifically, counsel notes, our prior cases recognizing such a right was based on our understanding that the High Court's pronouncement in Faretta applied to appeals as well as trials, andMartinez now definitively establishes that this is not the case.
Counsel is correct to the extent that he argues that our cases recognizing a right to self-representation for purposes of appeal were largely based on Faretta, and therefore, the U.S. Constitution. See Grazier, supra; Ellis, supra. This Court has not considered or determined whether there is an independently secured right to self-representation on appeal under the Pennsylvania Constitution. Unlike the federal Constitution, the Pennsylvania charter specifically recognizes a right to appeal. PA. CONST. art. V, § 9. But, our Constitution is silent concerning the right to counsel on appeal, and it is silent on the distinct question of the right of self-representation on appeal. See PA. CONST. art. I, § 9 (setting forth the rights of the accused in criminal prosecutions, including the right of the accused "to be heard by himself and his counsel. . . ."). Furthermore, the Pennsylvania Rules of Criminal Procedure, governing the waiver of counsel, cite toFaretta. See Pa.R.Crim.P. 121(A), Comment ("Paragraph (A) recognizes that the right to self-representation is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made,Faretta."). This comment gives further credence to counsel's assertion that the case law and rules governing any "right" to self-representation are founded not upon some right unique to Pennsylvania but upon reliance on the federal constitution as construed by the High Court in Faretta.
Pursuant to Douglas v. California, 372 U.S. 353, 356-57 (1963), the U.S. Supreme Court has held as a matter of equal protection that states that afford a right to appeal must appoint counsel to represent an indigent criminal defendant for purposes of a first appeal under the Fourteenth Amendment. Cf. Commonwealth v. Liebel, 825 A.2d 630, 633 (Pa. 2003) (recognizing that appellant has no federal right to counsel for purposes of discretionary appeal, but holding that in Pennsylvania there is a rule-based right).
Counsel, however, speaks too narrowly when he argues that this Court must recognize a right to self-representation for purposes of appeal under the Pennsylvania Constitution before w e may determine to grant the Motion to Withdraw and permit appellant to proceed pro se. The Martinez Court's holding that the states are not required to permit self-representation on appeal as a federal constitutional matter, and its concomitant notation that the states can recognize such a right under state governing charters, does not mean that a state can only reserve or confer such a right via an explicit state constitutional provision. Instead, such a right could be recognized or conferred as a matter of policy or indulgence by statute, court rule, or decisional law.
Although counsel identifies an important and open question concerning the right to self-representation on appeal, we ultimately find that we need not resolve the question in order to decide the instant Motion to Withdraw. Rather, for purposes of decision, we may assume that there is a right to self-representation on appeal in Pennsylvania; yet, even so, as counsel recognizes in his alternative argument, the right, even if deemed constitutionally-based, is not absolute. See, e.g., Commonwealth v. Jermyn, 709 A.2d 849, 863 (Pa. 1998).
In Rogers, supra, this Court considered whether the appellant Rogers could invoke a right to self-representation after counseled appellate briefs were filed. Rogers sought to waive his right to counsel on the basis of appellate counsel's alleged ineffectiveness. Rogers also filed a pro se supplemental brief purporting to amend the counseled brief and add new issues. The Superior Court denied the request and refused to consider the additional issues. Upon further review in this Court, we first noted that it was well-settled that "a criminal defendant or appellant has the right to proceed pro se at trial and through appellate proceedings." Rogers, 645 A.2d at 224 (citing Faretta,Ellis, and Pa.R.Crim.P. 121). We intimated, however, that the right to proceed pro se on appeal once the appeal has been filed is less clear. Citing to Ellis, we indicated that an appellant does not have the right to submit pro se filings that would "confuse and overburden the court." Id. Thus, we concluded that the appellant was prohibited from engaging in such a tactic and proceeding pro se on appeal after counsel had already filed appellate briefs on his behalf. We also emphasized that this conclusion in no way impeded Rogers' right to adequate representation, as he was free to raise counsel's effectiveness at a later time.
Rule 121 was formerly numbered Pa.R.Crim.P. 318, and it is referred to as Rule 318 in the Rogers decision.
Similarly, in the context of the right to self-representation for purposes of trial, this Court has noted that the right may be waived or limited when not timely invoked. See Jermyn, 709 A.2d at 863. In Jermyn, the appellant sought to represent himself for purposes of the penalty phase of a capital murder trial. The trial court denied the request as untimely. On appeal to this Court, Jermyn argued that he was entitled to forward his request during the pendency of the trial because the sentencing phase of a capital trial is distinct from the guilt phase. In finding that the lower court did not abuse its discretion, we indicated that there was a timeliness aspect to any such request; further, we noted, courts have refused such requests based on the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury. Id.
The instant case is one step removed from either Rogers or Jermyn, as the appellate briefs have not yet been filed and the concerns on appeal are different from those at trial. Nevertheless, the cases strongly and logically suggest that a request to proceed pro se, and a concomitant motion to withdraw, should be denied when forwarded at this late stage. The case has already been substantially delayed, first because of substitutions of counsel, then for remand, and finally, to afford counsel sufficient time to prepare a direct capital appeal brief. Counsel has indicated that he was prepared to timely file his brief on August 11, 2010, only to have appellant's attempt to "terminate" counsel and raise the self-representation issue intervene. Counsel also advises that, if the Motion to Withdraw is denied, he is prepared to file the brief on appellant's behalf immediately. Even if it is assumed that appellant has a "right" to represent himself on appeal, permitting counsel to withdraw and allowing appellant to proceed pro se at this stage in the appellate proceedings would unnecessarily impede and completely disrupt an already delayed appellate process.
We recognize that the pro se motion appellant attempted to file in the trial court did not specifically address self-representation on appeal. But, for purposes of decision of counsel's Motion to Withdraw, we will assume that the attempt to "discharge" counsel provides a sufficient basis to so construe the request.
Accordingly, under the circumstances described above, we will deny counsel's Motion to Withdraw. Counsel is directed to file the brief in this matter within fifteen days from the date of this decision. Furthermore, counsel's Motion to File Briefs and/or to Present Oral Argument is also denied.
We commend counsel for responsibly identifying the self-representation issue, and we have published, in part, to recognize that the question remains open.
Messrs. Justice Saylor, Baer, McCaffery and Madame Justice Orie Melvin join this opinion.
Mr. Justice Eakin files a concurring opinion.
Madame Justice Todd concurs in the result.
MR. JUSTICE EAKIN.
CONCURRING OPINION
I join the finding that the motion to withdraw should be denied because of untimeliness, though counsel acted entirely properly in filing the motion. I do not join the discussion of a "right to self-representation"; however thoughtful the monologue, that matter is not before us.
y heavily on evidence that the SJB sometimes preyed on area residents who were not gang members. Specifically, the People point to evidence that the SJB robbed patrons of a certain restaurant on Jerome Avenue and engaged in extortion of a local house of prostitution. However, the People identify nothing in the record from which it could reasonably be inferred that the actions of defendant and the other SJB members on the night in question were motivated by the desire to intimidate the Mexican-American community of the St. James Park area. Indeed, as previously noted (see n 6,
supra), the incident did not even occur within the SJB's territory, the home of the "civilian population" that, under the People's theory, the SJB intended to intimidate or coerce. Moreover, it should be borne in mind that a "crime of terrorism" within the meaning of Penal Law § 490.25 (1) is not established unless the alleged terroristic intent is connected to the particular specified offense underlying the charge. To paraphrase a familiar legal maxim: "`Proof of [terroristic intent] in the air, so to speak, will not do'" (
Palsgraf v Long Is. R.R. Co., 248 NY 339, 341 [1928] [citation omitted]). In any event, here, we see no evidence of intent to terrorize the Mexican-American community of the St. James Park area generally,
whether connected to or disconnected from the underlying specified offenses.
We note that the fact that the SJB sometimes victimized area residents who were not gang members (for example, by robbing them) does not equate to an intention to terrorize those victims within the meaning of the statute. If the term "with intent to intimidate or coerce a civilian population" included the intent to intimidate or coerce the direct victims of a particular crime, any specified offense involving intimidation or coercion of a group of people (such as a bank robbery) would constitute a crime of terrorism. We do not believe that the Legislature intended such a result. The People themselves appear to recognize that to constitute a crime of terrorism, the "civilian population" that the actor intends to intimidate or coerce by committing the underlying specified offense must be some group of people other than the direct victims of the crime.
To the extent the People argue, as they did at trial, that members of other Mexican-American gangs in the SJB's area of the Bronx qualify as "a civilian population" under Penal Law § 490.25 (1), we find this argument unavailing. While the term "a civilian population" might be literally susceptible to being applied to gang members of a particular ethnicity in a particular urban neighborhood or group of neighborhoods, the context of the Anti-Terrorism Act weighs against stretching the meaning of the language to cover such a narrowly defined subcategory of individuals. The direct legislative history of the Anti-Terrorism Act does not focus on the meaning of the term "a civilian population" in article 490 ( see Senate Mem in Support of Senate Bill S70002, 2001 McKinney's Session Laws of NY, at 1492-1494), but it is clear from the legislative findings set out at Penal Law § 490.00 that the Legislature intended to address extraordinary criminal acts perpetrated for the purpose of intimidating a broad range of people, not a narrowly defined group of particular individuals whom the criminal actor happens to regard as adversaries. The first paragraph of Penal Law § 490.00 reads as follows:
See American Heritage Dictionary 1366 (4th ed 2006) (defining "population" as, inter alia, "[t]he total number of inhabitants constituting a particular race, class, or group in a specified area"); New Oxford American Dictionary 1320 (2d ed 2005) (defining same as, inter alia, "a particular section, group or type of people . . . living in an area or country"); Random House Webster's Dictionary 1505 (2d ed 2001) (defining same as, inter alia, "the number or body of inhabitants of a particular race or class in a place"); Webster's Third New International Dictionary 1766 (2002) (defining same as, inter alia, "a body of persons having some quality or characteristic in common and usu[ally] thought of as occupying a particular area").
"The devastating consequences of the recent barbaric attack on the World Trade Center and the
Pentagon underscore the compelling need for legislation that is specifically designed to combat the evils of terrorism. Indeed, the bombings of American embassies in Kenya and Tanzania in 1998, the federal building in Oklahoma City in 1995, Pan Am Flight number 103 in Lockerbie in 1988, the 1997 shooting atop the Empire State Building, the 1994 murder of Ari Halberstam on the Brooklyn Bridge and the 1993 bombing of the World Trade Center, will forever serve to remind us that terrorism is a serious and deadly problem that disrupts public order and threatens individual safety both at home and around the world. Terrorism is inconsistent with civilized society and cannot be tolerated."
To decide this appeal, we need not define the minimum size of "a civilian population" that may be the target of terrorism for purposes of Penal Law article 490. Rather, it suffices to observe that the term "to intimidate or coerce a civilian population," in the context of the aforementioned legislative findings, implies an intention to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion. The intention by a gang member to intimidate members of rival gangs, when not accompanied by an intention to send an intimidating or coercive message to the broader community, does not, in our view, meet the statutory standard ( cf. Muhammad v Commonwealth, 269 Va 451, 498-499, 619 SE2d 16, 42-43, cert denied 547 US 1136 [under Virginia Code § 18.2-46.4, which defines an "act of terrorism" as any of certain crimes "committed with the intent to . . . intimidate the civilian population at large," the term "`population at large' is . . . intended to require a more pervasive intimidation of the community rather than a narrowly defined group of people"]).
The People have not directed our attention to evidence of the size of the "civilian population" that defendant allegedly was attempting to "intimidate or coerce," whether that population is defined as all Mexican-American residents of the SJB's territory or as members of rival gangs.
The foregoing conclusion is reinforced by the legislative history and judicial construction of similar definitions of terroristic intent in certain earlier-enacted federal statutes from which Penal Law article 490's definition of such intent appears to have been derived in relevant part ( see Greenberg, supra, § 39:1, at 1738 [in enacting article 490 after 9/11, "the Legislature was able to act quickly because of the model provided by existing federal antiterrorism legislation"]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 490.10, at 299 [2008 ed] ["The New York definition of `act of terrorism' was drawn from the federal definition of `international terrorism'"]).
The People seem to argue that federal statutory definitions of terrorism have no relevance to the construction of Penal Law § 490.25 (1), even if the very language of section 490.25 (1) to be construed is identical to, and presumably derived from, the preexisting federal statutes. If this is the People's position, we reject it. In this regard, contrary to the People's contention, CPL 20.40 (1) (a), which merely provides that a county has jurisdiction to prosecute an offense if "[c]onduct occurred within such county sufficient to establish . . . [a]n element of such offense," casts no discernible light on the meaning of the term "civilian population" in Penal Law § 490.25 (1).
Evidently, the "intent" language at issue on this appeal originated with the Foreign Intelligence Surveillance Act ( 50 USC § 1801 et seq. [FISA]) as originally enacted in 1978 (Pub L 95-511, § 101, 92 US Stat 1783, 1783-1784; see Perry, The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many Grails, 30 J Legis 249, 255 [2004] ["The oldest statutory definition of terrorism in federal law is the FISA definition of `international terrorism'"]). FISA's definitional section provides, in pertinent part, that activities constitute "international terrorism" if, among other things, they "appear to be intended" to accomplish one of the same three goals now delineated in Penal Law § 490.25 (1), including the intent "to intimidate or coerce a civilian population" ( 50 USC § 1801 [c] [2] [A]). The relevant legislative history offers as examples of such terrorism "the detonation of bombs in a metropolitan area" and "the deliberate assassination of persons to strike fear into others to deter them from exercising their rights" (S Rep 95-604[I], 95th Cong, 1st Sess, at 29-30, reprinted in 1978 US Code Cong Admin News, at 3931; S Rep 95-701, 95th Cong, 2d Sess, at 30, reprinted in 1978 US Code Cong Admin News, at 3999). These examples do not bring to mind violence between rival criminal gangs motivated chiefly by the desire to establish dominance between the gangs themselves rather than by the desire to create an intimidating impression on residents of the area generally.
FISA's definition of "international terrorism" has not been amended since its original enactment in 1978 ( compare 50 USC § 1801[c] with Pub L 95-511, § 101, 92 US Stat 1783, 1784). We note that one commentator has made the following criticism of FISA's use of the term "civilian population" in this context:
"What entities . . . would fall within the term `civilian population' in subparagraph 2 (A) [of
50 USC § 1801 (c)]? The entire population of a given country? The population of several countries taken together? A particular organized group within a country, such as a church or labor union? A random assortment of civilians, such as the collection of persons who happen to be standing in a bank during an armed robbery? The legislative history is not particularly helpful on this or other potential internal problems of the FISA definition" (Levitt,
Is "Terrorism" Worth Defining?, 13 Ohio NU L Rev 97, 104-105 n 31 [1986]).
In 1986, Congress enacted a statute extending federal prosecutorial jurisdiction over certain crimes committed against American nationals abroad, but included a provision limiting prosecution of such offenses to cases where the Department of Justice certifies that the offense "was intended to coerce, intimidate, or retaliate against a government or a civilian population" ( 18 USC § 2332 [d], originally enacted as 18 USC § 2331 [e] by Pub L 99-399, § 1202 [a], 100 US Stat 853, 896-897). The conference report on the bill specifically notes that it was not intended that the legislation "reach nonterrorist violence inflicted upon American victims. Simple barroom brawls or normal street crime, for example, are not intended to be covered by this provision" (HR Conf Rep 783, 99th Cong, 2d Sess, at 87, reprinted in 1986 US Code Cong Admin News, at 1960 [emphasis added]). The report further states: "The term `civilian population' includes a general population as well as other specific identifiable segments of society such as the membership of a religious faith or of a particular nationality, to give but two examples" ( id. at 88, reprinted in 1986 US Code Cong Admin News, at 1961). The explanation of the term "civilian population" as referring to "a general population" or to a "segment[] of society" as broad as a religion or nationality seems inconsistent with applying the term to a category as narrow as gang members in a particular urban neighborhood or group of neighborhoods.
Subsequently, in 1992, Congress enacted current 18 USC § 2331 (1) (Pub L 102-572, § 1003 [a] [3], 106 US Stat 4506, 4521). This provision defines "international terrorism," as relevant to this case, in substantially the same fashion as FISA defines the term, as discussed above. Like FISA and the subsequently enacted Penal Law § 490.25 (1), 18 USC § 2331 (1) provides that terroristic intent includes the intent "to intimidate or coerce a civilian population" ( 18 USC § 2331 [B] [i]). The legislative report on the bill simply notes that section 2331's "definition of international terrorism is drawn from [FISA]" (S Rep 102-342, 102d Cong, 2d Sess, at 45).
Language referring to an intent "to intimidate or coerce a civilian population" appears in other definitions of terrorism in federal law ( see e.g. 6 USC § 101 [B] [i] [Homeland Security Act of 2002]; 18 USC § 921 [a] [22] [C] [i] [Firearms Owners' Protection Act]; 18 USC § 2331 [B] [i] [definition of "domestic terrorism" added by USA PATRIOT Act of 2001, Pub L 107-56, § 802 (a), 115 US Stat 272, 376 (Oct. 26, 2001)]; US Sentencing Guidelines Manual § 3A1.4 [a] and Commentary n 4 [sentencing guidelines]). Such provisions (some of which, as can be seen from the foregoing references, postdate New York's Anti-Terrorism Act) do not appear to cast much additional light on the meaning of the same language in Penal Law article 490. There are also a number of provisions of federal law defining terrorism without reference to an intent "to intimidate or coerce a civilian population" ( see e.g. 18 USC § 2332b [g] [5] [A] [defining a "Federal crime of terrorism" as conduct violating specified criminal statutes that "is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct"]; 22 USC § 2656f [d] [2] [statute directing State Department to transmit certain reports on terrorism defines "terrorism" as "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents"]). The various definitions of terrorism in federal law are discussed in Perry, The Numerous Federal Legal Definitions of Terrorism: The Problem of Too Many Grails (30 J Legis 249 [2004], supra).
Consistent with the foregoing legislative history, courts construe the term "to intimidate or coerce a civilian population" under federal terrorism laws to refer to attempts to intimidate the general public in a given area, or a broad category of the general public in a given area ( see Boim v Holy Land Found. for Relief Dev., 549 F3d 685, 694 [7th Cir 2008 en banc], cert denied sub nom. Boim v Salah, 558 US ___, 130 S Ct 458 [donations supporting Hamas attacks in Israel "appear to be intended . . . to intimidate or coerce a civilian population" under 18 USC § 2331 (1) (B) (i)]; United States v Jordi, 418 F3d 1212, 1216-1217 [11th Cir 2005], cert denied 546 US 1067 [defendant convicted of attempting to bomb abortion clinics acted with motive "to intimidate or coerce a civilian population" so as to warrant upward sentence departure under US Sentencing Guidelines Manual § 3A1.4 (a) and Commentary n 4]). By contrast, "drive-by shootings and other street crime" and "ordinary violent crimes, for example, robberies or personal vendettas," do not satisfy the intent element of "international terrorism" under 18 USC § 2331 (1) ( Linde v Arab Bank, PLC, 384 F Supp 2d 571, 581 n 7 [ED NY 2005] [noting that plaintiffs would not prevail on their civil claims to recover for international terrorism if they "fail(ed) to prove that these acts were terror attacks, rather than `mere' street crime"]).
By no means do we minimize either the heinous nature of the criminal conduct at issue or the stark tragedy of its consequences. We see no evidence, however, that defendant's conduct was motivated by an intention to intimidate or coerce the Mexican-American community in the relevant area of the Bronx. Rather, on this record, all that can be concluded is that defendant acted for the purpose of asserting his gang's dominance over its particular criminal adversaries, namely, members of rival gangs. Such conduct falls within the category of ordinary street crime, not terrorism, even under the broad terms of Penal Law § 490.25.
Since we find that the evidence was insufficient to sustain the convictions for crimes of terrorism under section 490.25, we need not reach defendant's argument that the statute is unconstitutionally vague as applied to him.
We reject defendant's argument that the trial evidence was insufficient to support the judgment insofar as he was convicted of the specified offenses (attempted murder, manslaughter and weapon possession) as lesser included offenses underlying the terrorism charges and of conspiracy The People's chief fact witness was the aforementioned ES, a leader of the SJB and an accomplice in the crimes with which defendant was charged. It was permissible for defendant to be convicted based on ES's testimony because that testimony found support in "corroborative evidence tending to connect the defendant with the commission of [the] offense[s]" (CPL 60.22).
ES testified pursuant to a cooperation agreement with the People, under which, in exchange for his testimony, his guilty plea to murder in the second degree (and his sentence of 15 years to life) would be reduced to a plea to manslaughter in the first degree (and a sentence of 15 years).
In summary, the key points of ES's testimony were as follows: (1) he, defendant and other SJB members attended the party; (2) defendant participated in the meeting at the party where the SJB members planned to attack the aforementioned Miguel as he left the building; (3) defendant agreed at the meeting to hold a gun and, if necessary, shoot during the fight; (4) another SJB leader gave defendant a gun; and (5) during the subsequent fight with Miguel and his companions outside the church, ES saw defendant fire the gun when another SJB member called out for him to do so. The chief evidence generally corroborating ES's account and tending to connect defendant with the commission of the crimes was defendant's own written and videotaped statements, which he gave to the police when they first questioned him three days after the incident. In these statements, defendant claimed that he had attended the party with his fellow SJB members; that he had seen a fight (involving other SJB members, but not him) outside the church after the party; that, during the fight, a female SJB member (GS) gave a male SJB member a gun and the latter fired it and then handed it to defendant; that defendant ran while holding the gun for "a little bit" and then handed the gun back to GS "since [he] did not want to have any type of problems."
GS, another accomplice, was also called as a witness by the People. GS testified that she brought a gun to the party at the direction of SJB leaders, that she gave the gun to defendant toward the end of the party, and, as she fled after the shooting (which she said she did not witness), defendant called out her name and handed the gun back to her.
Notwithstanding the obvious conflicts between the two accounts, defendant's statements sufficiently corroborate the testimony of ES to satisfy CPL 60.22 (1). The statute requires only that the corroborative evidence "`tend[] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth'" ( People v Reome, 15 NY3d 188, 192, quoting People v Dixon, 231 NY 111, 116 [1921]). Moreover, "`[t]he role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it'" ( Reome, 15 NY3d at 192, quoting People v Hudson, 51 NY2d 233, 238). Here, although defendant denied having played a role in either the fighting or the shooting (or the planning of such violence), his statements corroborated ES's testimony, and tended to connect defendant with the commission of the crime, in at least three crucial respects. Specifically, in his statements, defendant admitted his membership in the SJB gang, placed himself at the crime scene and admitted having held a gun there. This sufficed to provide the necessary "`slim corroborative linkage'" ( Reome, 15 NY3d at 192, quoting People v Breland, 83 NY2d 286, 294) to the accomplice's testimony.
The corroboration requirement having been met, it was the jury's role to determine ES's credibility in light of his criminal background, his motive to cooperate with the prosecution, and the inconsistencies between his testimony and that of other witnesses. We note that, while defendant points to evidence suggesting that another SJB member fired a gun in the incident, the jury was free to reject such evidence and, in any event, was entitled to convict defendant of attempted murder and manslaughter on an "acting in concert" theory (Penal Law § 20.00) even if he did not fire any of the shots. Further, on our review of the facts pursuant to CPL 470.15 (5), we find that the judgment of conviction is not against the weight of the evidence.
We reject defendant's conclusory argument that "spillover prejudice" from the now-dismissed terrorism charges, and from the evidence admitted (without objection) in support thereof, was so great as to render it unfair to sustain the convictions on the lesser included specified offenses. First, we point out that this argument was not made to the trial court and is therefore unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits, as defendant fails to demonstrate that the jury was unable to properly consider the underlying charges. In fact, the jury demonstrated this ability in rendering a verdict acquitting defendant of the highest charge against him (murder in the second degree).
Defendant argues that he was deprived of a fair trial by the manner in which the court referred to 9/11 in its remarks to prospective jurors prior to voir dire. The court, seeking to stir the panel members' sense of civic duty, made a standard reference to jury service as a way to "speak back" to the 9/11 terrorists. Shortly thereafter, the court explained that the terrorism charge against defendant "does not mean that [he] is accused of committing a crime aimed at attacking the government or whose purpose is to make a political statement." The court then read the definition of a crime of terrorism under Penal Law § 490.25, and asked the panel whether, "remembering what I said about serving on a jury [being] one of the ways of responding to the terrorists of [9/11], . . . are there any among you . . . who believe it would be impossible to serve fairly and impartially in this particular case?"
The claim of error based on the court's remarks to the voir dire panel is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While it would have been preferable, in a case involving a terrorism charge, for the court to forgo the reference to jury service as a way to "speak back" to the 9/11 terrorists, we think it highly unlikely that the jurors misinterpreted this hortatory rhetoric as an invitation (in the words of defendant's brief) to "vindicate their own rage at the [9/11] terrorists by their treatment of [defendant's] case" that "undermined the impartiality of the proceedings." Nothing in the court's remarks likened defendant to the 9/11 terrorists; on the contrary, the court specifically explained that defendant was not being charged with politically motivated terrorism. Significantly, the trial took place a full six years after 9/11, and defendant does not claim that anything the jurors learned of his background might have caused them to connect him to the 9/11 terrorists. Further, given the vast scale of the 9/11 catastrophe, the distinction between those attacks and the crimes charged here was unmistakable.
One panel member asked whether the court was suggesting that 9/11 and defendant's alleged crimes "have something in common," and objected that the way the court was "positioning it" was, in her view, not "fair." The court responded, sua sponte, by immediately excusing that individual. We agree that the court, at that juncture, should have clarified, for the benefit of the remaining panel members, that no connection was being drawn between 9/11 and the charges against defendant. However, the panel member's objection actually shows that she fully understood that 9/11 had nothing to do with the charges against defendant.
While acknowledging that the claim is unpreserved, defendant asks that he be granted a new trial in the interest of justice on the further ground that the admission into evidence (without objection by defense counsel) of Detective Shanahan's testimony as a purported expert on gang behavior, and of Shanahan's PowerPoint presentation on the SJB's history and criminal activity, incorporated numerous hearsay statements, contrary to the dictates of the Confrontation Clause of the Sixth Amendment as authoritatively construed by Crawford v Washington ( 541 US 36). The record establishes, however, that, as the People maintain, defendant not only failed to raise such objections, but also affirmatively waived them and, indeed, sought to use the evidence in question for his own strategic ends. It is evident that this was part of a coherent strategy under which the defense acknowledged defendant's admitted gang membership and gun possession but maintained that he was a lower-tier member who was not implicated in most of the gang's criminal activity, lacked any responsibility for the shootings at issue, and did not share the terroristic intent attributed to the gang as a whole. Under these circumstances, defendant, through counsel, intelligently and knowingly waived his right to complain about the Crawford violation ( see Melendez-Diaz v Massachusetts, 557 US ___, ___ n 3, 129 S Ct 2527, 2534 n 3 [2009]), and we decline to exercise our power to review the claim in the interest of justice.
In fact, Shanahan's testimony concerned the now-dismissed terrorism charge almost exclusively.
We find unavailing defendant's argument that the performance of his lead trial counsel was so deficient as to deny him effective assistance of counsel ( see People v Benevento, 91 NY2d 708, 713; People v Baldi, 54 NY2d 137, 147; see also Strickland v Washington, 466 US 668, 687-688). To the extent defendant argues that counsel failed to make certain objections or to call certain witnesses, we presume, in the absence of a complete record developed by a motion to vacate the judgment pursuant to CPL 440.10, that counsel exercised professional judgment and strategic discretion in determining how to conduct the defense. In fact, the existing record reflects that counsel followed a coherent strategy that sought to show that defendant committed no crime beyond weapon possession, a charge that he was unlikely to defeat given the denial of his suppression motion. Further, counsel competently attacked the credibility of ES, the People's main witness, and brought out the inconsistencies between his testimony and that of other witnesses. Ultimately counsel obtained an acquittal on the second-degree murder charge, the most serious count of the indictment. While we do not condone counsel's absences and tardiness, defendant fails to establish that these had any impact on the defense.
Defendant also argues for a new trial, or, at a minimum, reversal of the attempted second-degree murder conviction, on the ground that the verdict is irreconcilably inconsistent insofar as he was convicted of attempted second-degree murder with respect to the young man who was paralyzed at the same time he was acquitted of second-degree murder with respect to the girl who was killed. This claim is unpreserved, as defendant failed to raise it before the jury was discharged, when it would have been possible to remedy any defect in the verdict by resubmitting the charges to the jury as provided by CPL 310.50 (2) ( see People v Alfaro, 66 NY2d 985, 987; People v Satloff, 56 NY2d 745, 746; People v Stahl, 53 NY2d 1048, 1050). We note that the failure to object to the verdict as inconsistent at the appropriate time may well have been a conscious tactical choice by defense counsel, since resubmitting the case to the jury to cure the inconsistency could have resulted in the acquittal on the murder charge being changed to a conviction ( see People v Alfaro, 66 NY2d at 987; People v Maldonado, 11 AD3d 114, 117, lv denied 3 NY3d 758). Under the circumstances, we decline to review this claim in the interest of justice.
We reject defendant's various arguments that his statements to the police should have been suppressed on his pretrial motion. We see no grounds for disturbing the suppression court's determination, based on credible evidence, that the police committed no violation of Payton v New York ( 445 US 573) in entering defendant's apartment when they first approached him for questioning. As the suppression court properly found, the police entered the apartment with the implicit consent of the elderly man (apparently, defendant's stepfather) who met them at the door ( see People v Pacheco, 292 AD2d 242, lv denied 98 NY2d 679; People v Brown, 234 AD2d 211, 212, 214, aff'd 91 NY2d 854). Defendant also urges that the police should have given him Miranda warnings when they began to interview him after he voluntarily accompanied them to the precinct. The record, however, fully supports the suppression court's determination that a reasonable innocent person in defendant's situation would have believed, at the inception of the interview, that the police (who never displayed their weapons) "were still in the process of gathering information about the alleged incident prior to taking any action" ( People v Dillhunt, 41 AD3d 216, 217, lv denied 10 NY3d 764). Accordingly, the suppression court properly concluded that defendant was not in custody when the interview began and that the police were not required to read the Miranda warnings at that point ( see People v Bennett, 70 NY2d 891, 893-894). As there was no initial Miranda violation, there is no need to consider whether defendant's subsequent statements were tainted. Nor is there any merit to defendant's argument that the conditions of his detention were so excessive and unreasonable as to render his statements involuntary.
During the course of the interview, before defendant gave any written statement, the police did read him the Miranda warnings.
Finally, as the case is being remitted for resentencing on the reduced counts of the judgment of conviction, defendant's argument for reduction of his aggregate sentence of 40 years to life is academic.
Accordingly, the judgment of the Supreme Court, Bronx County (Michael A. Gross, J.), rendered December 10, 2007, convicting defendant, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and sentencing him to consecutive terms of 20 years to life on the manslaughter count and the attempted murder count, and to concurrent terms of 15 years on the weapon possession count and 5 to 15 years on the conspiracy count, should be modified, on the law, to reduce the conviction for manslaughter in the first degree as a crime of terrorism to manslaughter in the first degree, the conviction for attempted murder in the second degree as a crime of terrorism to attempted murder in the second degree, and the conviction for criminal possession of a weapon in the second degree as a crime of terrorism to criminal possession of a weapon in the second degree, and, as so modified, affirmed, and the case remitted to Supreme Court with directions to resentence defendant on the reduced counts of the judgment.
Judgment, Supreme Court, Bronx County, rendered December 10, 2007, modified, on the law, to reduce the conviction for man-slaughter in the first degree as a crime of terrorism to man-slaughter in the first degree, the conviction for attempted murder in the second degree as a crime of terrorism to attempted murder in the second degree, and the conviction for criminal possession of a weapon in the second degree as a crime of terrorism to criminal possession of a weapon in the second degree, and, as so modified, affirmed, and the case remitted to Supreme Court with directions to resentence defendant on the reduced counts of the judgment.