This case is not published in a printed volume and its disposition appears in a table in the reporter.
Joyce Slevin Assistant District Attorney
Defense Attorney: Robert J. Boyle, Esq.
Yvonne Lewis, J.
By decision, dated the 27th day of August, 2003, United States District Court Judge Edward R. Korman remanded the matter, sub judice, to this court for a hearing to determine whether or not the prosecution had knowingly utilized perjured testimony at Mr. Lamont Johnson's 1987 jury trial on two counts of Murder in the Second degree for which he was sentenced to two consecutive terms of twenty years to life.
Counsel for the defense has additionally petitioned this court for an order, pursuant to CPL 440.10 (1), (a), ( c), (d), (f), (g), and (h), vacating the judgment of conviction on the grounds that 1. perjured testimony had indeed been utilized at Mr. Johnson's trial; 2. "newly" discovered evidence revealed that (i). the sole eyewitness admitted to having falsely accused Mr. Johnson,
( ii). a previously unknown eyewitness identified two others as the perpetrators of the mentioned crimes, ( iii). another witness confirmed that one of those perpetrators had confessed to her, ( iv). an alibi witness exonerated Mr. Johnson, and, ( v). the case detective had canvassed the neighborhood with a single picture of Mr. Johnson despite the fact that no one had at that point linked him to the crimes; and, 3. the ineffectiveness of trial counsel who permitted the improper impeachment of a non-hostile prosecution witness with his prior grand jury testimony, without requesting a limiting instruction by the court that such prior statement should be considered solely as to the issue of credibility.
In support of its requests, the defense synopsised the trial testimonies as follows: in the early morning hours (approximately 3:30am) of June 24, 1986, eyewitness Selvin Spencer (a/k/a Raheem) heard gunshots, then saw Mr. Johnson run past him in profile with a gun chasing after someone, whereafter he heard someone say, please don't kill me, followed by additional gunshots. At trial he referred to Mr. Johnson as "Majesty," whereas in the grand jury he had said "Magnetic." When questioned by the police the day after the shooting, Mr. Spencer denied being an eyewitness; but, a few days later admitted to having been a witness, gave a fictitious name, but never identified Mr. Johnson. Marvin Lamar testified that he saw one of the shootings, and that Mr. Johnson, with whom he had had a fight that summer, was not the shooter although he resembled him. The prosecution was thereupon permitted to impeach Mr. Lamar with his prior grand jury testimony wherein he had indicated that the shooter had been the guy with whom he had fought. No objection was made thereto by trial counsel or limiting instruction requested by him or ever given by the trial judge relegating that use of prior grand jury testimony for credibility purposes only. Mr. Johnson presented two alibi witnesses; to wit, his sister's friend, LaShaun Grant, with whom he and his sister, Tanya, had spent the night, and Rochelle Brown, his mother's co-worker, who had driven her home, saw him enter the apartment with a young woman at approximately two to two-fifteen in the morning (close to the time of the homicides) and remain for the approximately additional hour that she stayed in the house watching a movie. Finally, Mr. Lamar's girlfriend, Celeste Shim, asserted that when she heard gunshots, she had gone to the window and seen two men, neither of whom was Mr. Johnson, shoot a third party.
On March 14, 1990, Mr. Johnson's CPL 440.10 motion to set aside his convictions, predicated on the assertion that Selvin Spencer had been coerced by the police and investigators to falsely testify against him, the affidavit of an alibi witness, Alvin Sonny McKoy, and the unsigned statement of one, Denise Williams, who represented that a Rodney Pender had confessed to her that he had committed the murders with "Magnetic" was denied. The Appellate Division denied leave to appeal on July 15, 1990. The defense also acknowledges that on the 11th day of February, 1991, the Appellate Division, Second Department, denied Mr. Johnson's appeal, finding that his convictions were sufficient as a matter of law, that the lack of a circumstantial evidence charge and a limiting instruction vis-a-vis Mr. Lamar's impeachment did not constitute reversible error, and that Selvin Spencer's identification testimony had not been violative of Mr. Johnson's due process (See Peo. v. Johnson, 170 A.D.2d 535 [2d Dept., 1991]). Leave to appeal to the Court of Appeals was denied (See Peo. v. Johnson, 77 N.Y.2d 996 ). On December 20, 2003, another CPL 440.10 motion was denied although supported by affidavits from 1. Selvin Spencer that he had been coerced by the police and committed perjury at Mr. Johnson's trial, 2. Eric McKenzie that the police had attempted to have him falsely accuse Mr. Johnson of the subject crimes, and 3. Arhtur Brodie (a/k/a Hicks) that he had witnessed Rodney Pender and "Magnetic" running from the crime scene. Appeal was denied by the Appellate Division on April 5, 1994. Mr. Johnson's repeated CPL 440.10, reargument and renewal motions based on FOIL documents, dated July 2, 1996, July 3, 1998, and March 1, 2001, to this court and appeals thereof to the Appellate Division were all denied.
Selvin Spencer died in August, 2004, prior to the hearing that had been ordered by United States District Court Judge Edward R. Korman and which was ultimately held on December 15, 2004, January 19, 2005, April 6, 2006, June 21, 2006, September 19, 2006, October 19, 2006, November 9, 2006, and December 18, 2006. Mr. Spencer's three post trial affidavits and an unsworn statement were admitted into evidence on consent to the effect that he had been coached by the prosecution and police, paid, and promised leniency with parole and a pending case to falsely testify against Mr. Johnson. He also admitted that he had lied about threats from Mr. Johnson in 1992. Victor Berry, Spencer's brother-in-law and a convicted robber, testified that Mr. Spencer had admitted the foregoing to him at two family affairs. Arthur Brodie, who is serving a life sentence for felony murder, indicated that he had heard gunshots and thereafter seen "Ron K" and "Magnetic," with guns in hand, run by him and his wife (now deceased) who had been seated on a stoop. He indicated that "Magnetic" resembled Mr. Johnson but had a different complexion and that he knew both from the area, although they (he, Magnetic and Mr. Johnson) were neither friends nor enemies. He never went to the police, but in 1992 gave an affidavit to an investigator on behalf of Mr. Johnson, with whom he was subsequently housed at the same jail. Denise Williams, who knows Mr. Johnson, his nickname, "Majesty," and knew Ron K since Junior high school, testified that in 1986, the latter confessed to her that he and a "Magnetic" committed the subject murders. She furnished proof that Ron K had been killed in 1987. Alvin "Sonny" McKoy, incarcerated in North Carolina since 2002, testified that he had known Mr. Johnson from the neighborhood but had not associated with him, and that he and Selvin Spencer, his "get high partner," had observed a dead body on the ground after exiting the location at which they had been doing drugs on the night of the double homicides. Case detective Chmil testified that he and his partner, Detective Cavuto, responded to the crime scene four hours after the shootings (on June 24, 1986), that the witnesses agreed that two black males emerging from a maroon vehicle had been murdered, and that the victims were thereafter identified (as Lance Gonzalez [a/k/a Tata] and Damon Rogers). A .32 caliber shell casing had been recovered from the noted vehicle. The next day (June 25, 1986), an anonymous caller alleged that "Umajesty" and "Natural" had done the killings as a result of a fallout over a robbery, which neither detective ever investigated, much less confirmed. With "Natural" subsequently identified as Michael Sennon and no further information on "Umajesty," both detectives inexplicably claimed that by midday of the 24th, they considered Messrs. Sennon and Johnson suspects. Detective Cavuto testified that Mr. Johnson was a suspect in four other cases with which he was never charged, but he couldn't pinpoint when he obtained that information or that Ron K, possibly Rodney Ford, was also a suspect in one of those cases. Detective Chmil admitted to canvassing the area with a single photograph of Mr. Johnson in his pocket, and being told by Marvin Lamar that one of the two males who had been chasing one of the victims had been wearing "Cazal" eyeglasses, had been called "Mag" (with a hard G sound), and that he had had a fight with him that summer. Mr. Lamar, after failing to respond to the precinct as requested, finally identified Mr. Johnson in a photo array conducted at his house on June 26, 1986 at 10pm. Although Jerry Brown and Selvin Spencer had been approached when they were together on the street and interviewed 15 minutes apart at the precinct house, Detective Chmil initially testified that Mr. Spencer was taken to the precinct by himself and then couldn't recall whether the two had been together in the vehicle. In addition, Mr. Brown never indicated that he had been with Mr. Spencer when he witnessed the shootings but not the perpetrators. Mr. Spencer in his interviews with the prosecutor and detectives indicated that he had been with "Jerry" when he witnessed the shootings, but never identified either shooter by name or nickname, only that he knew them from the area. In fact, he gave the police a fictitious name for himself. Both detectives claimed ignorance as to whether Mr. Sennon was ever interviewed; however, the police reports (DD5) not only showed that he had been arrested and interviewed but that Detective Cavuto was going to investigate his alibi. John Parron, current Chief Executive Officer of the janitorial service (See-Clear maintenance Company) at the IBM facility that Mr. Sennon had represented as his alibi, who in 1986 oversaw payroll and administration for the company as its Chief Operating Officer, indicated that records from that period are no longer available; however, the standard practice then in effect was not to permit employees at the IBM facility to leave the premises during their meal breaks. The case detectives admitted only to having given Mr. Spencer carfare, and that Mr. Sennon was never arrested and charged with the double homicides.
Former Assistant District Attorney (ADA) Brian Harnick, who had been assigned the subject matter on June 26, 1986 after Mr. Johnson's arrest, presented the case to the grand jury wherein Marvin Lamar and Selvin Spencer testified; he so tried the case. Though Spencer had indicated in the grand jury that he had seen Mr. Johnson as he chased one of the victims along Myrtle Avenue, toward and down Sumner Avenue (as had all other witnesses), at trial he testified that Mr. Johnson had run in the opposite direction along Myrtle towards Throop Avenue. Though he admitted that defense counsel had told him of Mr. Lamar's recantation prior to trial, ADA Harnick had no recollection of reaching out or questioning him as to any contact with defense counsel prior to calling him as a trial witness, only that after court Mr. Lamar had mentioned receiving some kind of threat. ADA Harnick also recalled Mr. Spencer asking him to take care of an open New York county robbery case, having spoken of threats against his family from an unknown source which had caused him to initially refuse to testify at trial, and having called someone, whom he (ADA Harnick) did not see, "Majesty" while in the pens.
A detective Louis Savarese, who had investigated an unrelated June 6, 1986 shooting asserted that the shooting victim had placed Messrs. Sennon and Johnson at the scene as merely being present but doing nothing. The shell casing from that shooting was matched to the same weapon utilized in the double homicide. That shooting victim, Eric McKenzie, testified that he, Natural, Kev (Natural's brother), and Mr. Johnson had been together until Ron K and Magnetic arrived, and that the latter had been standing behind him before he was shot in the back of the head. He stated that he never informed the police as to who shot him since he had been planning to retaliate on his own. He also indicated that Ron K and Mr. Johnson had been arguing over jewelry. Finally, he advised that while in the Rikers' Law Library in 1992 or 1993, he had heard Mr. Spencer apologize and admit to Mr. Johnson that he had given false testimony against him, and that he at no time had heard Mr. ...