Opinion
No. 111542.
12-11-2015
Clinton TURNER, Claimant, v. STATE OF NEW YORK, Defendant.
Leon Friedman, Esq., for Claimant. Eric T. Schneiderman, Attorney General, By: Janet L. Polstein, AAG, for Defendant.
Leon Friedman, Esq., for Claimant.
Eric T. Schneiderman, Attorney General, By: Janet L. Polstein, AAG, for Defendant.
ALAN C. MARIN, J.
This is the decision following the liability trial of Clinton Turner's claim for unjust conviction and imprisonment under section 8–b of the Court of Claims Act. Mr. Turner was arrested on October 17, 1987 for the robbery of William Clarke earlier that day. In August of 1988, he was convicted by a jury in Queens County of first degree robbery and grand larceny in the fourth degree. Turner was sentenced to a term of 10 to 20 years on the robbery charge with a concurrent sentence of 2 to 4 years for the larceny conviction. He was paroled in 1997.
On July 21, 2004, the judgment of conviction was vacated in a federal habeas corpus proceeding on the basis that Clinton Turner's lawyers were not informed that William Clarke, his accuser, had a criminal record, and that Clarke in his testimony to the jury, stated that he had no criminal record:
"[T]here has been a violation of due process based upon Brady v. Marylandfor failure to turn over material impeachment evidence; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony which the prosecutor should have known was false."
[Turner v. Schriver, 327 F. Supp 2d 174, 187 (E.D. N.Y.2004)].
The Testimony of William Clarke and Clinton Turner
The claim turns on two competing narratives. Turner denied robbing Clarke, testifying that the two had known one another and been involved in the drug trade in Turner's neighborhood. For his part, Clarke denied that he had known claimant or that he bought or used drugs.
Turner's narrative is set forth in his Court of Claims testimony and at his criminal trial in 1988. Clarke testified only in connection with Turner's criminal prosecution—before the grand jury and at the trial. With respect to Clarke's grand jury testimony, which was three pages, there was a certification issue, but it would have had no effect here in any case.
He also testified in a deposition taken April 30, 2007 (defendant's exhibit A).
A potential additional piece of information offered in affidavit form was ruled inadmissible by this Court (Turner v. State of New York, 38 Misc.3d 1201(A) [Ct Cl 2012], appeal dismissed120 AD3d 796 [2d Dept 2014]).
The testimonial narratives by the protagonists are, by and large, all we have; there are no eyewitnesses, alibi witnesses or police laboratory results. At the criminal trial, in addition to Turner and Clarke, the jury heard from Officer John Cardo and Detective Paul Krien of the New York City Police Department.
The witnesses who took the stand at the 8–b trial were Turner, his wife Lametrous Turner, Ramon Vargas, and very briefly, lawyer Arthur Trakas, who had filed a 440 motion on Turner's behalf. The testimony of Mr. Vargas, a long time resident of the Bland Houses in Flushing, Queens, covered the layout of its buildings.
William Clarke's Narrative
October 17, 1987 was a Saturday and at 4:45 a.m., Mr. Clarke stopped in the Candlewood bar in Flushing. He was "looking for a few friends that worked with me ... [and stayed for] less than 15 minutes" (cl exh 1, p. 109). His friends were not there, and Clarke started walking back to his car, a 1972 Ford Mustang, which was parked about a block and a half away in front of a Dunkin' Donuts, that was open all night.
Clarke was a half block from his car when he could see that its two small back windows were broken. As he moved closer, he saw an individual going through the glove compartment. Clarke said the two of them looked at each other for "a second" (id.,p. 112) and then the man got out of the passenger side and started to run: "And I started to chase him. I chased him across the street and into the projects. He ran into a basement door. I ran into there" (id.,p. 114).
Clarke had chased the individual into a basement hallway of one of the buildings in the Bland Houses, a development of the New York City Housing Authority, colloquially known as the projects. There were a "whole bunch of people standing there," (id.,p. 115) and one of them jumped out from behind a pillar and started slashing at Clarke with a knife. The slasher had a hood on, demanded that Clarke give him all his money and ripped the wallet from his back trouser pocket.
The assaulter told him to take his trousers off, but Clarke kicked him in the chest causing his hood to drop off. Clarke saw the face of the man he later identified as Clinton Turner. Turner then ran out the same door the two men had come in, but Clarke took a different route:
"I ran up the stairwell going out to the front of the projects, because I was scared, and returned to my car" (id.,p. 118).
Back at his car, Clarke now saw three teenaged males going through it; Turner, whom he described as "at least 30 years old," was not one of them (id.,p. 126). Clarke says he picked up a pipe and was going to smash the windows of a Toyota that the three youths had headed for, "but then I noticed that the window was broken, and the car was stolen [so] I chased them into Dunkin' Donuts and waited for the police to come" (id.,p. 120). Once the three were inside the restaurant, they "locked the door" (id .,p. 121).
Clarke testified that he had never been in the Bland projects, did not know Turner, and did not use drugs.
Clinton Turner's Narrative
At the time of his arrest for robbery, Mr. Turner was 29 years old and staying with his mother on College Point Boulevard in Flushing, in a building that was one of several that comprised the Bland Houses.
Turner said that in and around the Bland Houses in the 1980's, "There was a huge drug problem ... The best I can describe it is if you were to picture what Mardi Gras can be like, this was how it was. It was like a carnival atmosphere, drugs were everywhere ... You could get crack, you could get heroin, you could get anything you want." He said that each building had a different brand of marijuana on offer. Buyers would come from far afield: "Pennsylvania, Connecticut, everywhere, to get drugs from the projects."
Claimant explained his role in all this:
"I was one of the runners, and, you know, the drug dealers would stay hidden and we would actually go get the money from the guys that wanted it. They would pull up and ask us, would you go get two coke for us, would you go get this for us, and give us—me the money and I would get it or somebody else, one of the other runners."
Claimant recalls that he first met Clarke early in the summer of that year, 1987. Clarke was sitting on a bench in a park at the Bland Houses. Turner obtained for Clarke what he wanted that day—crack cocaine, and it became a fairly regular arrangement. Claimant recalled Clarke buying crack on about 20 different occasions, although a little later in his testimony, it sounded even more frequent: that he'd come into the neighborhood "About three times a week, toward the weekend." Turner said that Clarke sometimes gave him $100, sometimes $80 and once $70.
Clarke drove into the area and would usually sit in his parked car for the drug deal. In fact, Turner testified that he once drove with Clarke to his residence in Bayside, Queens so he could pick up money to complete a sale. Turner said that at the time he was addicted to drugs and that "drugs were primary in my life ... people pay me for doing things for them with drugs, sometimes with cash."
Turner testified that at first they had a smooth relationship, but after a while, he would bring him the drugs and Clarke would take them and drive off without paying. In response, Turner took his share in a portion of the drugs meant for Clarke, apparently without Clarke at first knowing he was being shorted.
Claimant remembers this coming to a head on Friday evening October 16, 1987. Clarke went into the basement of one of the buildings, put some of the substance in his crack pipe and it clogged up his pipe; "it wasn't real ... and he got angry."
Clarke asked him to take the crack back to the dealer, but Turner explained that doing so would be dangerous; the dealers would beat or kill him because they could not have word get out that there was something wrong with their product. "So I told him I wouldn't do that. He then asked me to ... give him my pipe because his pipe was clogged up and he couldn't smoke anymore, and that was the last time I seen Mr. Clarke."
On Friday night, Turner recalls that he went home at about 7:30 or 8 p.m., and stayed there through the morning of the next day. He said that his mother had an 11 p.m. curfew, and she would lock the door at that time. Turner said he did not have a key because his actual residence was in Kew Gardens (also Queens) where he lived with his girlfriend, whom he later married in prison in 1992—Lametrous Turner.
On Saturday evening, Turner walked into a clam bar which was near the Candlewood bar "to get change to board the bus." Turner said that his money was on the bar counter, he turned away to talk to someone and the next thing he knew the money was on the cash register. He jumped over the counter, retrieved his money and jumped back over. Claimant said he made no contact with the bartender, who was "a pretty big fellow."
In any event, as soon as Turner walked out, he was arrested for disorderly conduct. At the precinct, "I was in there under an alias ...," and thought that he was about to be released when Detective Krien came through. He knew Turner and realized he had not given his correct name. Krien asked him about a robbery, took him upstairs to take part in a lineup and Turner ended up being charged with armed robbery.
Evaluation of the Two Narratives
To begin with the accuser, William Clarke: what stands out is that Clark lied about a material fact—telling the jury that he did not have a criminal record. The pattern jury instructions for both civil and criminal juries instruct the jury that if they find a witness has lied about a material fact, they may disregard the witness' entire testimony or the portion that it determines to be false (PJI 1:22; 1CJI § 7.06).
Officer John Cardo and Detective Paul Krien each spoke to Clarke and what he told them differed from his trial testimony. Officer Cardo testified that Clarke had told him that when he first went back to his car he was approached by four individuals, including one carrying a knife and wearing a ninja mask who robbed him. At the criminal trial, Clarke denied telling the police that anyone was wearing a ninja mask or a ski mask. [8–b tr p. 212].
Consider some of the particulars of Turner's criminal trial testimony:
* Clarke did not live in the Bland Houses, near them or in the part of Queens in which they were located and said he had never been in the projects. Yet he testified that "the guys I work with get together and they go ... almost every Friday night" (cl exh 1, p. 131) to the Candlewood bar, which is only a block or so from the Bland Houses. Clarke did not indicate how close he worked to the Candlewood bar.
On that subject, this exchange on cross-examination is not persuasive:
"Q. Now, approximately what time was it that you arrived at the bar on this morning?
A. Quarter to five.
Q. Did you know that bar closes at four o'clock?
A. It was closed and they weren't letting anybody in, but I told them I was supposed to meet my friends there from work. They were only letting people out of the bar. They let me in for five minutes to see if they were there. They weren't there and I left."
As quoted earlier, on his direct testimony, Clarke said that he was in the Candlewood bar "less than 15 minutes," which, strictly speaking, is not inconsistent (id., p. 109).
[id.,p. 132].
* Clarke's considerable effort to show how he managed to see Turner's face seemed contrived. For its part, the prosecution acted as if such testimony was inadequate; they called Officer Cardo back to the stand for this exchange to prove that Clarke did not previously know Turner:
"Q. Officer Cardo, what if any information did you learn from Mr. Clarke concerning the perpetrator with the knife as to his name?
A. Nothing.
Q. What if any information did you learn from Mr. Clarke concerning the nickname of the perpetrator?
A. Nothing."
[id.,pp 213–14].
* For an unarmed man who was alone, Clarke's stated course of action seemed reckless, if not unbelievable. Three teenage males around his car: not to worry; Clarke picks up a pipe and traps them in a Dunkin' Donuts. As for the older individual he had earlier seen rifling his glove compartment, Clarke chased him into the basement of the housing project that he claimed he had never been in before. In that basement, with a "whole bunch" of onlookers, not necessarily his allies, Clarke kicks his knife-wielding attacker in the chest, knocking his hood off so that he can later be identified.
Even Clarke may have thought his testimony did not sound credible and tried to fix it when he could—specifically, he had to admit to some fear. That's why he went out the front of the projects "because I was scared" (id.,p. 118).
* As much as things could have changed in over 20 years, the video of the chase route that claimant made in 2009 illustrates a basic idea (cl exh 21). Namely, given the circumstances, the route from in front of Dunkin' Donuts to the basement of a building in the Bland Houses would have been a varied and difficult terrain to negotiate, which included, for example, passing under elevated rail tracks (cl exh 22). Moreover, Clarke testified that he left the basement by going up a staircase, a different way than he had come in—how did he know about the staircase, and that it would take him to the front of the projects.
Leaving aside what the video generally showed, the Court will not take into account the specifics that claimant pointed to. These include whether the basement or building had a pillar from which the assailant emerged and if Clarke, who at one point was described as 6 feet, 7 inches, had enough space in the hallway to extend his leg so as to kick a person in the chest.
Eight photos were submitted into evidence by claimant for the same purpose (exhibits 32–A though 32–H). Ramon Vargas' testimony was concerned with the layout and configuration of the Bland Houses. Mr. Vargas lived there from 1956 until about 2005. He was not part of the staff, but knew Turner and his wife, and conceded on cross-examination that he was testifying out of friendship for them.
Clinton Turner's narrative set out above comes from his 8–b trial. His testimony in his own defense in 1988 was not as lengthy, but essentially consistent (as was his 2007 deposition testimony).
Turner was not the ideal of a model citizen in 1987. On the weekend in question, he had two physical or near-physical encounters—the jump over the bar which led to his arrest for disorderly conduct, and a conflict in a jewelry store the Friday evening before.
Claimant in 1987 was addicted to heroin and crack cocaine, and said, not too credibly, "I really didn't have use for money at the time," apparently to show he had no motive for robbery (but he did talk about getting paid in drugs for his work as a runner).
Turner's 8–b trial testimony was not seamless. He was somewhat inconsistent on his payments and dealings with Clarke and when he began to short him with drug fillers. Turner did not identify where Clarke lived although he testified that he once went with him to his apartment.
His wife did not add anything to what happened on October 17, 1987 when she took the stand in the Court of Claims. Mrs. Turner testified that she had been living with claimant since 1977, off and on, before they married in prison. Mrs. Turner testified that she had no personal knowledge of what actually took place. She was not asked about his whereabouts on that early Saturday morning, although on a key issue, Mrs. Turner stated that she had seen Turner with Clarke two or three times in 1987.
* * *
Section 8–b of the Court of Claims Actrequires that the claimant prove his innocence by clear and convincing evidence. That standard is defined by the Pattern Jury Instructions as one which satisfies the trier of fact that it is "highly probable" from the evidence that what claimant or plaintiff claims is what actually happened (PJI 1:64). Evidence which is clear and convincing is not equivocal, nor is it open to opposing inferences (Acosta v. State of New York, 22 AD3d 367 [1st Dept 2005]; Alexandre v. State of New York, 168 A.D.2d 472 [2d Dept 1990], appeal dismissed77 N.Y.2d 925 [1991]).
To this trier of fact, it is not a close call between the two narratives. Many aspects of the accuser's story lack credibility. In addition, Turner came across as deeply and unrelentingly convinced of his innocence. Such belief existed at the time of his criminal trial when he would not accept a plea offer from the prosecution of two to four years. See Taylor v. State of New York, 24 Misc.3d 931, 936 (Ct Cl 2009). This trier of fact concludes that Turner is innocent of the crimes charged to the jury.
Don Taylor had turned down three offers from the prosecution, the last of which, offered during jury deliberations, was two to four years.
The unjust conviction statute requires that the claimant prove that he or she is innocent of the charges in the accusatory instrument, which are those that go to the jury (claimant's exhibit 13). Exhibit 13 includes not only robbery I and grand larceny IV, but robbery III, of which the jury also convicted Turner, but that count was dismissed by Justice Joseph G. Golia (see footnote 1 of Turner v. State of New York, 14 Misc.3d 699 [Ct Cl 2006], affirmed 50 AD3d 890 [2d Dept 2008]).
--------
There is one more step. Section 8–brequires that the claimant prove that he "did not by his own conduct cause or bring about his conviction" (paragraph [d] of subdivision 5). The Law Revision Commission in its proposal to the Legislature that became the basis for section 8–bgave five instances of such disqualifying conduct: removing evidence, falsely giving an uncoerced confession, inducing a witness to give false testimony, suppressing testimony or concealing the guilt of another (McKinney's 1984 Session Laws of New Yorkat p. 2932). They were examples, not meant to be exclusive. In Moses v. State of New York, 137 Misc.2d 1081 (Ct Cl 1987), a false alibi offered by claimant precluded recovery because it was determined to have brought about Mr. Moses' conviction.
Mr. Turner did not engage in any of these acts which have been found to be disqualifying conduct under subdivision 5(d). Nor have any other acts or omissions been presented which would fall under the provision.
In sum, the Court concludes that by clear and convincing evidence: Clinton Turner is innocent of the crimes charged to the jury and that he did not cause or bring about his conviction. The defendant State of New York is fully liable to claimant under section 8–b of the Court of Claims Act, and the Clerk of the Court is directed to enter interlocutory judgment against the defendant thereon.
The Court will contact the parties with regard to proceedings as to Mr. Turner's damages.