John Scott - Reversed due to weight of evidence

Scott, John; robbery, depraved indifference; NRE: [no fields]

Suggestibility issues

[728:474]; 2nd Dept. 6/18/01; reversed, due to weight of evidence

"The [prosecution asserts that]...John Scott...was one of the two masked men who robbed a grocery store in Queens on March 21, 1996. Yet of the several persons who were present in the grocery at the time of the robbery, the [prosecution] produced none who, at trial, identified [Scott] as one of the robbers. There is no proof that [Scott] ever admitted to having participated in the robbery, and there is no physical evidence linking him to the crime. The only evidence linking [him] to the crime consists of the proof of a single extra-judicial [i.e., out-of-court] identification made by one witness based not on [the perpetrator's] appearance, but based instead on [the perpetrator] having spoken a few words in a voice which the identifying witness thought matched that of the taller of the two robbers." [Latter emphasis original.]

"The chief witness for the [prosecution] was William Vizcarrondo, who worked in the grocery where the robbery occurred...[His] trial testimony concerning his extra-judicial voice-based identification of [Scott] constitutes the cornerstone of the [prosecution's] case. Yet Vizcarrondo was not produced at a pre-trial Wade hearing* which was conducted in this case in order to permit the [prosecution] to meet [its] burden of proving that the extra-judicial voice-based identification was untainted by any suggestiveness."

[* That being the case, it's not clear why Vizcarrando was permitted to tesify at trial. Did the prosecution simply 'skip' the 'formality' of having their only inculpatory witness testify at the pre-trial hearing, knowing they wouldn't have to pay any price for doing so?]

"[T]he jury had no opportunity to hear [Scott's] voice, or to assess its allegedly distinctive quality. Furthermore, the jury had no opportunity to hear the voices of the five other members of the lineup from which [Scott] was selected. Had the [prosecution] proved that their principal witness selected [Scott] from a lineup consisting of other deep-voiced men, then the weight to be afforded to any evidence relating to such identification would certainly be stronger than if it were to appear that [Scott] was instead chosen from a lineup in which every other participant had a voice noticeably higher than his own."

from NRE synopsis (by Ken Otterbourg):

"The taller of the two robbers told Vizcarrondo to give him the money in the cash register and also 'run the shine,' which Vizcarrondo took to mean he had to hand over his jewelry...At some point during the robbery, a shot was fired but nobody was hit."

"Detective Gary Russo of the [NYPD] led the investigation. Because both robbers wore masks, Vizcarrondo couldn't offer a detailed description of the men. But he told Russo that he was able to see a little patch of skin around the eye holes of the tall robber's mask that suggested the robber was a light-skinned black man. Vizcarrando also said the tall robber had a distinctive voice, one that he would later testify was different from any he had ever heard.

"On March 29, 1996, police in Queens arrested John Scott for his involvement in a February shooting at his mother's house in the Astoria neighborhood. (He would be acquitted of those charges.) While at the police station, Scott agreed to take part in a lineup* for the bodega robbery. Each person repeated the phrase 'Run the shine,' and Vizcarrondo selected Scott, in part based on his 'deep' voice, and also that his skin color appeared to be similar to that of the tall robber."

[* There's something fishy here. Why would a suspect in one case 'agree' to appear in a lineup for a different case? Did Scott have (much of) a choice? Did police already suspect him in the bodega robbery, yet fail to tell him this when he 'agreed' to appear in the lineup for it?]

"Scott was then charged with [10 robbery-related counts]...and three counts of depraved indifference to human life for aiming and firing his weapon.

"At a pre-trial hearing, Scott's attorney tried to suppress Vizcarrondo's 'ear witness' identification."

"The judge denied Scott's motion to suppress, noting 'There was nothing elicited in the testimony to indicate that the voice identification was suggestive in any way.'"*

[* That's a very misleading statement: Because the prosecution was somehow able to avoid Vizcarrondo testifying at the pre-trial hearing, one of the primary purposes of whichis to determine what evidence should be suppressed because it's tainted in some fundamental way (that's why these are also called 'suppression hearings'), the defense had far less opportunity to show that the voice ID was suggestive. In any event, without an audio recording of this 'ear witness' procedure, it was essentially impossible for the defense to discover any hard evidence of suggestiveness. This is very similar to the position that child-sex-abuse defendants are in, in the absence of an electronic recording of the interviews. (See Suggestibility section.) Moreover, shouldn't the burden be on the prosecution to prove that the procedure wasn't suggestive?]

"The jury convicted Scott..."

"On June 18, 2001, the...Appellate Division vacated his conviction and dismissed his indictment. The court wrote that the trial court erred in allowing jurors to hear testimony about the voice identification."

"After his release from prison, Scott sought compensation for his wrongful conviction from the...New York Cout of Claims. Under the state's Unjust Conviction and Imprisonment Act, Scott needed to prove his innocence to receive an award.

"At the claims trial, both he and an alibi witness said that Scott was not in Queens at the time of the robbery. The witness testified that he and his then-girlfriend had been prepared to testify at Scott's criminal trial, but Scott's attorney had located them too close to trial and was unable to get them admitted as alibi witnesses."*

[* So, some permutation of the following seems to have occurred: a) the lawyer wasn't diligent enough about finding these witnesses; b) the lawyer failed to ask the judge for a continuation, to give him more time to find them; c) the judge (unreasonably) failed to grant the lawyer a continuance.]

"On February 6, 2006, a Court of Claims judge ruled that Scott had proven his innocence. He was then awarded $100,000 in state compensation."

[All emphases added unless otherwise noted.]