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United States v. Morrison

August 25, 2006


The opinion of the court was delivered by: Hurley, District Judge


By Notice of Motion dated June 26, 2006, defendant made an omnibus motion seeking various items of relief.*fn1 These requests will be addressed seriatim under the precise captions utilized by Mr. Cleere in the Notice of Motion, absent quotation marks.

1. Dismissal Based Upon Speedy Trial Violation(s)

Point 1 of Mr. Cleere's affirmation in support of defendant's pretrial motions is primarily directed at a purported Sixth Amendment violation of defendant's right to a speedy trial.*fn2 "'Whether excessive delay violates the Speedy Trial Clause [of the Sixth Amendment] depends on a balancing of four factors: (1) the length and (2) reason for the delay, (3) whether the defendant timely asserted his rights, and (4) whether the defendant has been prejudiced by the delay.'" (Cleere Affirmation, dated June 26, 2006 ("Cleere Aff.") ¶ 3 (quoting United States v. Jones, 91 F.3d 5, 7 (2d Cir. 1996) which, in turn, cites Barker v. Wingo, 407 U.S. 514, 530 (1972)).)

The above listing is not meant to be exhaustive, nor are any of the four factors "either a necessary or sufficient condition to [a] finding of a deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533.

Here, defendant's prejudicial period of pretrial detention*fn3 is more than counterbalanced by the reasons for the delay (see July 21, 2006 Order at 3-8), the absence of other articulated prejudice caused by the delay (such as the loss of a witness (see Barker, 407 U.S. at 533)), and the fact that defendant "did not [prior to entry of current counsel] want a speedy trial." Id. at 534. Indeed, prior to that time, newly retained counsel serially requested time to familiarize themselves with the case and to further pursue plea negotiations. (See July 21, 2006 Order at 3-8.) And, as explained in Barker, the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." 407 U.S. at 532. That is so because "[w]hether and how a defendant asserts his right [to a speedy trial] is closely related to the other factors" identified by the Supreme Court, including the reason for the delay and the personal prejudice sustained as a result of the delay. Id. at 531.

In sum, defendant has failed to establish that he has been denied his Sixth Amendment right to a speedy trial vis-a-vis the charges in the first superseding indictment.*fn4

2. Disclosure of Rule[s] 404(b), 608 and 609(b) Evidence and a Luck Hearing

In the government's Memorandum of Law submitted in opposition to defendant's omnibus motions, the government details the evidence that it will seek to introduce as part of its direct case under Federal Rule of Evidence 404(b), as well as its intent to utilize Morrison's 1991 conviction for criminally negligent homicide, pursuant to Rule 609(a)(1) and (b), should defendant testify.*fn5

In Mr. Gallo's July 28, 2006 "REPLY TO GOVERNMENT'S OPPOSITION" to defendant's motion brought on by Mr. Cleere, Mr. Gallo does not challenge or otherwise comment concerning the government's position re its Rule 404(b) proffer. However, Mr. Gallo has challenged the government's intent to utilize defendant's criminally negligent homicide conviction for impeachment purposes on the ground that "the prejudicial effect far outweighs whatever slight, if any, probative value" that may legitimately be attached to this evidence. (Gallo's Reply at 6.)

Mr. Morrison was convicted of criminally negligent homicide fifteen years ago. For that, he was sentenced to a conditional discharge. Based on the information proffered by the defense, it appears that the defendant recklessly discharged a firearm resulting in the death of a youngster.

The Court agrees with defendant. The probative significance of his 1991 conviction to the case at hand is marginal at best, and its potential for causing unfair prejudice to the defendant is significant. Accordingly, should defendant take the stand, the government, based on the information presently before the Court, will not be permitted to utilize this conviction under Rule 609(a)(1) for purposes of impeachment. The same holds true under subdivision (b) of the Rule given that the criminally negligent homicide conviction does not "involve[] dishonesty or false statement."

3. Disclosure of Brady Material

(a) Applicable Law

Under Brady v. Maryland, 373 U.S. 83, 104 (1963) and its progeny, the government is required to disclose to the defense all material evidence*fn6 in its actual or constructive possession that is favorable to defendant bearing on either guilt or punishment. Included within the ambit of Brady is information which may be utilized to impeach a government witness. Giglio v. United States, 405 U.S. 150, 154 (1972). Brady/Giglio material (hereinafter referred to collectively as "Brady" material) must be turned over to the defense sufficiently in advance to allow "for its effective use at trial." United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). With the above general principles in mind, attention will be turned to defendant's Brady requests.

(b) Defendant's Requests

Invoking Brady, defendant has made both specific (pertaining to a microcassette) and general disclosure requests.

(i) Specific Request for Microcassette

Mr. Cleere explains the specific item sought under Brady thusly:

The defendant, Rodney Morrison respectfully requests the disclosure of certain items seized by the government during [the execution of] an August 2004 search warrant that contain recorded statements of government witnesses threatening Mr. Morrison. Additionally, the defendant seeks preclusion of testimony by government witnesses if no disclosure of the items discussed below is made.

Specifically, defense counsel has become aware that Wynette Randall (a former employee of the Peace Pipe Smoke shop now a government witness) recorded certain phone calls made to the Peace Pipe Smoke shop by Tony Phillips (also a former employee of the Peace Pipe Smoke shop now a government witness) in which Tony Phillips attempted to extort money from Mr. Morrison, threatening violence if payment was not forthcoming. Said calls by Phillips were recorded by Randall (Mr. Morrison's secretary at the time) on microcassette. As of the present date, the cassettes in question (listed on the search warrant inventory) have never been retrieved. Search Warrant inventory attached hereto as Exhibit A. The Government is under obligation to disclose all statements made by government witnesses. As such, if no disclosure of the cassette tapes in question is made, the government should be precluded from calling Tony Phillips and/or Wynette Randall as witnesses in the case against Mr. Morrison or from using their statements and/or testimony in any way against Mr. Morrison. (Cleere Aff. ¶¶ 17-18.)*fn7

(ii) Defendant's General Requests

Paragraph 23 of Mr. Cleere's affirmation calls for the production, in essence, of any Brady material in the actual or constructive possession of the government, regardless of the format in which such material is found. To assure that the government complies with its Brady obligations, "it is requested that the prosecution's file be produced in Court and examined by the Court and defense counsel." (Id. ¶ 25.)

c) Discussion

(i) ...

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