It took nearly 20 years for authorities in Brooklyn to get a conviction in a 1991 homicide where a young man was shot in the face with a .380 caliber bullet, but a panel decision Wednesday put prosecutors back at the start of a case that’s already been tried twice.
In a 3-1 decision, the Appellate Division, Second Department, reversed Derrick Lloyd’s second-degree murder conviction in the interests of justice and granted a new trial to a defendant who was on the lam until 2007, when he was caught in Alabama attempting to obtain a driver’s license under a fake name.
The majority said Lloyd’s right to confront his accuser was violated when a prosecutor’s questions on cross examination and in summation left the impression that a non-witness had implicated the defendant.
People v. Lloyd, 2011-05527, began with a New Year’s Eve party.
The prosecution alleged that Lloyd left a party at his sister’s apartment in search of an intoxicated man who had caused a ruckus at the bash. Around 3 a.m. on Jan. 1, 1991, Lloyd found William Smith and shot him in the face, according to the prosecution.
In the second trial­—the first having ended with a hung jury—Lloyd’s sister provided an alibi, testifying that her brother had not been at the party. On cross-examination, the sister testified that she and another woman who was at the party were brought to a police station for questioning.
Over defense objections, Assistant District Attorney Jonathan Kaye pursued a line of questioning suggesting that the sister and the other woman had argued because the woman, who did not testify in the second trial and failed to identify the defendant at the first, had implicated her brother. Again, over the objections of defense attorney Calvin Simons of Brooklyn, Kaye said on summation that the sister was angry because she knew the other woman had identified her brother.
The jury, which deliberated for four days, asked the court whether there was any testimony or a statement from the woman and was advised by Kings County Acting Supreme Court Justice Mark Dwyer (See Profile) that there was not.
Lloyd was convicted of second-degree murder and second and third-degree criminal possession of a weapon. He is serving an 18-year-to-life term in state prison.
Although the defendant did not preserve for appellate review his argument that his Sixth Amendment and state constitutional (Article 1, §6) right of confrontation was violated, the Second Department opted to exercise its interest of justice authority to reach the issue.
“As the defendant correctly contends, during the cross-examination [of the sister], the prosecutor improperly gave the impression that [the other woman], who did not testify, implicated the defendant while the police questioned her,” the Second Department majority said. “Notably, the prosecutor acknowledged at the second trial that [the woman] had testified at the initial trial and … had not identified the defendant.”
The majority said the “error was exacerbated when the prosecutor, during summation, improperly argued” that the sister had gone to the woman’s home to confront her immediately after leaving the police station.
Justice Sheri Roman (See Profile) dissented, arguing that evidence of Lloyd’s guilt was so persuasive, any errors in the prosecutor’s cross examination and summation were harmless beyond a reasonable doubt.
“In my view, the other evidence of the defendant’s guilt, which included the testimony of three disinterested eyewitnesses to the shooting and additional corroborating evidence, was overwhelming and there was no reasonable possibility that the errors complained of contributed to the defendant’s convictions,” Roman wrote.
The appeal was argued Sept. 12 by A. Alexander Donn of Appellate Advocates in Manhattan. Assistant district attorneys Leonard Joblove, Rhea Grob and Terrence Heller represented the prosecution.
Donn declined comment. A spokeswoman for the Brooklyn District Attorney’s office said the matter is under review.