The Appellate Division, Second Department, at 41 Monroe Place, Brooklyn (NYLJ/Rick Kopstein)
A divided Brooklyn appellate panel has upheld a bribery conviction for a man who tried to silence testimony from three teenagers who witnessed a murder in a park.
The 3-1 Appellate Division, Second Department, majority concluded Dupree Harris had not been deprived of a fair trial for bribery when the prosecution told jurors that a fourth witness of the murder in the park had been fatally shot days before he was supposed to testify.
In People v. Harris, 2005-02998, the unsigned majority said Wednesday that the impact of the murder of the fourth witness “on the state of mind of these [three] witnesses was interwoven with the narrative of the charged crimes, and necessary to help the jury understand the case in context, because it explained the girls’ conduct in coming forward to disavow” their statements that recanted their original statements.
Justice Robert Miller (See Profile) dissented and called for a new trial, while acknowledging that Harris’ 2005 conviction was not against the weight of the evidence.
The trial court’s decision to introduce evidence of the fourth witness’ murder painted the defendant “as a man who had been involved in a heinous witness-elimination murder and the specter of that uncharged crime overshadowed the charges for which the defendant was on trial,” Miller found, noting the proceedings “unraveled to a trial within a trial.”
“A defendant should only be compelled to defend against the crimes for which he was charged,” Miller said. Because the bribery and alleged tampering happened before the fourth witness was killed, Miller said evidence of the shooting “simply did not tend to prove any material element in the case,” the judge said.
Oral arguments had taken place Jan. 31, 2013.
The bribery case stems from a September 2001 incident in which Wesley Sykes, Harris’ half-brother, fatally shot a man in a Brooklyn park.
A number of the victim’s friends saw the slaying, including three teenage girls. Another man, Bobby Gibson, also saw the shooting.
Soon after, the three girls gave taped statements to law enforcement identifying Sykes as the shooter. As the trio would later testify, Harris contacted them in May and June 2002, as Sykes’ trial neared. They had heard rumors Harris was a dangerous man, but said he lavished them with gifts, money and even had sex with one of them.
The girls then recanted prior identifications of Sykes and received $500 from Harris.
A jury was empaneled on a Thursday and Sykes’ trial was set to start the following Monday. Gibson was fatally shot over that weekend.
A man named Travis Ragsdale confessed to the crime, blaming it on a drunken argument at a party. He was later convicted of second-degree murder but acquitted of first-degree murder on a witness-elimination theory.
Harris was not charged in Gibson’s shooting.
When Gibson was shot, one of the girls could see his body in the street and testified that she thought to herself “What’s next? I guess I’m next.”
The girls told police that same weekend they took money not to testify against Sykes. They were relocated with their families by law enforcement. The trio identified Sykes at trial as the shooter and he was convicted.
Harris was indicted on three counts of third-degree witness tampering and three counts of bribing a witness.
As the majority noted, the question of whether and to what extent to admit evidence of Gibson’s murder was “the subject of extensive discussion” between the prosecution, defense and trial judge, Brooklyn Supreme Court Justice Carolyn Demarest.
For instance, before jury selection, Harris’ defense insisted Gibson’s murder was “wholly immaterial” but the prosecution said it was “impossible and ludicrous” to separate Gibson’s shooting from the current case.
Demarest instructed prospective jurors that Harris was not accused of being involved in Gibson’s murder. Before jury deliberations, she repeated to the jury that Harris was not charged in the shooting.
He was convicted of the bribery counts but acquitted of tampering and was given a 15-years-to-life sentence.
Separately, Harris was convicted in the Eastern District of New York in 2006 on drug dealing charges. He is appealing that conviction.
The majority noted that evidence of uncharged crimes are “generally excluded” pursuant to People v. Molineux, 168 NY 264. But uncharged crimes can be admitted when “completing the narrative of the events charged in the indictment and providing necessary background information.”
Here, it was correctly admitted to show why the girls told police they made false recantations and then stuck to their original stories.
The majority discarded the argument that the Gibson murder had no probative value because it happened after the girls were paid to recant.
“The absence of a credible explanation for why the girls readopted their original statements would have lent support” to defense arguments that the recantations were true.
The majority said “it cannot be fairly said on this record” that there was no proof Gibson’s murder had a role in the girls’ decision to rescind their recantations.
Harris was represented by Mark Vorkink of Appellate Advocates and Warren Landau, who was formerly with the organization.
Brooklyn Assistant District Attorneys Leonard Joblove, Morgan Dennehy and Jesse Oppenheim appeared for the prosecution.