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The People of the State of v. Calvin L. Harris

July 28, 2011


Appeal from a judgment of the County Court of Tioga County (Hayden, J.), rendered October 5, 2009, upon a verdict convicting defendant of the crime of murder in the second degree.

The opinion of the court was delivered by: Mercure, J.


Calendar Date: January 10, 2011

Before: Cardona, P.J., Mercure, Spain, Malone Jr. and Stein, JJ.

Following a lengthy trial, defendant was convicted in 2007 of murder in the second degree for killing his wife, Michele Harris (hereinafter the victim), who was last seen on September 11, 2001. Neither the victim's body nor any murder weapon has ever been found. Within hours after the verdict, an individual, Kevin Tubbs, came forward alleging that he had information relevant to the victim's disappearance. Defendant's ensuing CPL 330.30 motion to set aside the verdict was granted, and a new trial was ordered (People v Harris, 55 AD3d 958 [2008]). Following the second trial, defendant was again found guilty of murder in the second degree. County Court denied his subsequent motion to set aside the verdict, and sentenced him to a prison term of 25 years to life. Upon defendant's appeal, we now affirm.

Initially, we reject defendant's argument that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence. The proper standard for appellate review of a conviction based on wholly circumstantial evidence is the same as in any other criminal case: "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (People v Ficarrota, 91 NY2d 244, 248 [1997] [internal quotation marks and citations omitted]; see People v Hines, 97 NY2d 56, 62 [2001]; People v Wong, 81 NY2d 600, 608 [1993]). While the danger that the trier of fact may leap logical gaps in the People's proof forms the basis for the circumstantial evidence charge to be given to the jury, the Court of Appeals has clarified that the standard set forth in that charge is only for the trier of fact, rather than an appellate court reviewing legal sufficiency (see People v Hines, 97 NY2d at 62; People v Norman, 85 NY2d 609, 620-622 [1995]; People v Williams, 84 NY2d 925, 926 [1994]; see also People v Rossey, 89 NY2d 970, 971-972 [1997]; People v Wong, 81 NY2d at 608). Thus, it is settled that "'the jury should be instructed in substance that it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence'" (People v Ford, 66 NY2d 428, 441 [1985] [emphasis added], quoting People v Sanchez, 61 NY2d 1022, 1024 [1984]). In contrast, although close judicial supervision may be necessary in circumstantial evidence cases, the appellate courts' function in reviewing legal sufficiency remains limited to assessing solely "'whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People'" (People v Hines, 97 NY2d at 62, quoting People v Williams, 84 NY2d at 926; see People v Norman, 85 NY2d at 620-621).

Further, "the People are entitled to the benefit of every reasonable inference to be drawn from the evidence" (People v Cintron, 95 NY2d 329, 332 [2000]; see People v Hines, 97 NY2d at 62).*fn1 As a practical matter, then, we must "assume that the jury credited the prosecution witnesses and gave the prosecution's evidence the full weight that might reasonably be accorded it" (People v Benzinger, 36 NY2d 29, 32 [1974]; see People v Bierenbaum, 301 AD2d 119, 131 [2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]). In reviewing legal sufficiency, we also must be mindful that "[t]he possibility that someone other than [defendant] may have committed the crime does not preclude a guilty verdict"; even in circumstantial evidence cases, "the jury [remains] free to assess the evidence and to reject that which it finds to be nonpersuasive" (People v Ford, 66 NY2d at 437). That is, "it is for the jury to determine what evidence is to be believed and what evidence is to be discredited, as long as that decision does not involve any logical inconsistencies" (People v Kennedy, 47 NY2d 196, 204 [1979]). Acquittal is not mandated in a circumstantial evidence case simply because "every bit of evidence submitted to the jury [is not] inculpatory rather than exculpatory" (id.), or because certain evidence, "when . . . evaluated in isolation, [is] susceptible to arguable inferences which at first blush seem consistent with [a] defendant's claim of innocence" (People v Bierenbaum, 301 AD2d at 132). Rather, we must review all the evidence presented as a whole, "cast in its aggregated and interwoven symmetry, and after applying all natural and reasonable inferences" that favor the People (id. at 132-133), determine whether the jury could logically conclude that the elements of the crime were proven beyond a reasonable doubt.

Viewed under that standard, the proof herein is legally sufficient to establish that defendant intentionally caused the death of the victim at their home on the night of September 11, 2001. Specifically, although there is no direct evidence, the People demonstrated defendant's guilt through circumstantial proof of motive, intent, opportunity and consciousness of guilt, as well as evidence of the victim's sudden disappearance and her spattered blood in the garage and kitchen in the family home.*fn2

Turning first to motive, defendant is correct that such evidence "does not establish any element of the crime, and cannot take the place of proof of [defendant's] actual commission of the crime" (People v Marin, 65 NY2d 741, 745 [1985]). Nevertheless, that truism does not provide a basis for discounting the evidence of motive here. Indeed, "evidence of . . . motive cannot be ignored in examining the evidence in the light most favorable to the prosecution" (id. [emphasis added]; see People v Kimes, 37 AD3d 1, 13-14 [2006], lv denied 8 NY3d 881 [2007]; People v Bierenbaum, 301 AD2d at 135; People v Seifert, 152 AD2d 433, 443 [1989], lv denied 75 NY2d 924 [1990]). Particularly in circumstantial evidence cases, "'motive often becomes not only material, but controlling'" (People v Toland, 284 AD2d 798, 804 [2001], lv denied 96 NY2d 942 [2001], quoting People v Fitzgerald, 156 NY 253, 258 [1898]; see People v Thibeault, 73 AD3d 1237, 1239-1240 [2010], lv denied 15 NY3d 810 [2010], cert denied ___ US ___, 131 S Ct 1691 [2011]).

The record demonstrates that at the time of the victim's death, her marriage to defendant was nearing its end, and the two were in the midst of unsuccessfully attempting to negotiate a divorce settlement. The marriage was marked by infidelity; both defendant and the victim were having intimate relationships with other people prior to the commencement of divorce proceedings. When the victim initially told defendant on December 8, 2000 that she wanted a divorce, he reacted explosively. The victim's sister-in-law, who telephoned that evening, reported hearing defendant screaming at the victim, as she pleaded with him not to come near her and attempted to flee. Despite defendant using his truck to block the victim's car in the family garage, she was eventually able to retreat to the home of her brother and sister-in-law. Shortly thereafter, the victim removed all of defendant's guns from the family's house and brought them to her brother's home.

Although defendant and the victim had four young children and she did not work outside the home during the marriage, defendant stopped providing her with money once she announced her intention to divorce him. The victim took a job as a waitress at a local restaurant, and continued to live separately from defendant within the family home. Defendant contacted the victim's friends and family, seeking assistance in convincing her to discontinue the divorce proceedings, and declared that "there wasn't going to be a divorce and she wasn't going to get half of his business."*fn3 Although he also informed the victim's family of his concerns regarding her drug use, he told them that he blamed the victim for his own unfaithfulness with other women, citing the victim's failure to keep the family home clean. Ultimately, Supreme Court directed defendant to pay various bills, as well as $10,000 in counsel fees for the victim's attorney and $400 per week in maintenance to the victim, and scheduled the case for a jury trial in October 2001.

Settlement negotiations between defendant and the victim throughout the summer of 2001 were unsuccessful. In August 2001, the victim rejected defendant's final settlement offer that would have resulted in an award of custody of the children to the victim and $740,000, with $200,000 to be paid to her immediately and $54,000 per year for a period of 10 years. Rather than accept that offer, the victim filed an order to show cause approximately one month before the murder, requesting an appraisal of defendant's automobile dealerships and $30,000 for the appraisal fee. In light of these circumstances, the jury could rationally conclude that defendant had a motive to kill the victim -- i.e., avoiding the expensive, impending appraisal of his business and the trial scheduled for October 2001, as well as preventing the divorce itself and concomitant equitable distribution of his assets (see People v Bierenbaum, 301 AD2d at 135).

The proof of intent is closely related to evidence of motive in this domestic violence homicide case. The People argued that defendant's intentional murder of the victim was the culmination of a cycle of abusive, controlling behavior that intensified after she rebuffed his attempts to prevent the divorce.*fn4 In support of that theory, they offered evidence of defendant's prior threatening and intimidating behavior toward the victim. Apart from defendant's explosive reaction when the victim told him in December 2000 that she wanted a divorce, the most notable evidence came from the victim's hairdresser, Jerome Wilczynski. He testified regarding a telephone conversation that the victim had with defendant during her last salon appointment in July 2001. The victim tipped her cell phone so Wilczynski could hear defendant, who told the victim: "Drop the divorce proceedings. I will f***ing kill you, Michele. Do you hear me? I will f***ing kill you. I can make you disappear. F*** you, you bitch. Drop the divorce proceedings."

Although the dissent concludes that this threat was too attenuated in time to support a reasonable inference that defendant had the intent to kill in September 2001, defendant made this statement just two months prior to the murder and disappearance of the victim. Furthermore, the statement belies defendant's assertions that he had come to terms with the dissolution of his marriage -- a conclusion that we could reach only by improperly viewing the evidence in the light most favorable to defendant, as opposed to the People.*fn5

In addition, the People presented testimony from the wife of one of defendant's brothers, MaryJo Harris, regarding an incident in 1996 that shed light on the victim's actions in removing defendant's guns from the family home. MaryJo Harris stated that the victim had called her from a closet in her home, upset, frightened and whispering that she had a disagreement with defendant, who began opening and closing the chamber of a shotgun. MaryJo Harris indicated that on the weekend after the murder, she confronted defendant about this incident and other threats reportedly repeated by the victim, to which defendant first responded by calling the victim a habitual liar, but ultimately admitted that he may have threatened the victim. Based upon this evidence, the jury could properly find that defendant possessed an "intent to focus his aggression on one person, namely, his wife -- his victim" (People v Bierenbaum, 301 AD2d at 150; see People v Thibeault, 73 AD3d at 1239).

With respect to proof of opportunity, the victim's boyfriend testified that she visited his residence on September 11, 2001, after finishing her work shift and having a drink with two coworkers at the bar of the restaurant where they worked.

She left her boyfriend's apartment around 11:00 P.M. to go to the family home, which was about 20 minutes away. Defendant later told police investigators that although the victim generally stayed out late after work, she always came home, and that September 12, 2001 was the first morning that she had not returned to care for the children. At approximately 7:00 A.M. on September 12, defendant called Barbara Thayer, the babysitter for the children, told her that the victim had not returned home and asked if Thayer could provide last minute childcare. Thayer agreed and, when she arrived at the couple's home, found the victim's car at the end of their quarter-mile long driveway with the keys still in the ignition and the victim's cell phone inside the car.

Thus, the People demonstrated that the victim returned home and that approximately seven hours then passed until defendant called Thayer the next morning. In addition, the People introduced evidence that defendant and the victim lived in an isolated, remote location surrounded by woods with logging trails and paths with which defendant was familiar, having regularly traveled through the woods and surrounding property on all-terrain vehicles and snowmobiles. Viewing the evidence in the light most favorable to the People, defendant and the victim were the only people -- apart from their sleeping children aged 2 through 7 -- at their isolated residence on the night the victim disappeared, thereby establishing defendant's opportunity to murder the victim and dispose of her body on that particular night (see People v Kimes, 37 AD3d 1, 14 [2006], supra).

In order to demonstrate defendant's consciousness of guilt, the People provided proof of defendant's actions on the morning of September 12, 2001, and in the weeks subsequent to the victim's disappearance. Thayer testified that when she arrived at the couple's residence and told defendant that the victim's vehicle was at the end of their driveway, he refused to help look for the victim despite Thayer's stated concern that she might be hurt. Instead, defendant drove Thayer to the end of the driveway, telling her that the victim went to New York City. When Thayer expressed her disbelief that the victim would go to New York City without her vehicle, defendant suggested that the victim had "hitched a ride" -- i.e., that she had dropped off her vehicle at the family home and hitch-hiked to New York City on the night of September 11, 2001, despite the massive terrorist attack on the City earlier that day and without informing anyone or arranging for the care of her children. Without first asking if the keys were in the ignition of the victim's vehicle, he then had Thayer drive it back to the house. He proceeded to direct Thayer regarding what she should do for the rest of the day, without mentioning the victim's name or the possibility that she might return home. Similarly, defendant did not mention the victim to the family's second babysitter -- who began watching the children on the afternoon of September 12 -- despite the presence of State Police, dogs and helicopters at his house.

On the weekend after the victim disappeared, defendant's sisters-in-law confronted him with his alleged prior threats to the victim. Both witnesses testified that defendant became upset when confronted with the victim's statement that he had said he would kill her and that her body would not be found. He ultimately admitted, however, that he may have made the statement but did not mean it. Francine Harris testified that defendant then became pale, went into the bathroom and looked as if he had been physically ill when he returned a few minutes later. Francine Harris further testified that she answered a telephone call from defendant's father that weekend during which he informed her that the victim's body had been found in a shallow grave at his cottage. When Francine Harris relayed this information to defendant, he immediately responded that the victim's body had not been found and called his father "a buffoon."

Thayer testified that one week after the victim disappeared, defendant told her that he wanted all of the victim's belongings out of their house. He told Thayer that she could sell all of the victim's possessions at a garage sale and that he would split the money with her. Approximately two weeks later, on the victim's birthday, defendant convinced his reluctant girlfriend to spend the night at his house, telling her that the victim would not be coming home that night. Finally, we note that two witnesses testified regarding a conversation with defendant on September 14, 2001, during which he told them that police had found a spot of blood the size of a loaf of bread in his garage, despite the fact that police had not yet told him any details regarding the amount of blood or the size of the blood stain found in the garage.

While proof of consciousness of guilt is generally considered a weak form of evidence, "its probative weight is highly dependent upon the facts of each particular case" (People v Cintron, 95 NY2d 329, 333 [2000], supra). Unlike the dissent, we cannot conclude that the probative value of such evidence in this case is limited, particularly when viewed in the context of the additional evidence. Defendant's actions -- including his implausible explanation to Thayer regarding the presence of the victim's vehicle at the end of the driveway on September 12, 2001, his response to the statements of his sisters-in-law regarding his prior threats and the alleged discovery of the victim's body, his seeking to sell all of the victim's belongings so soon after her disappearance, and his assurance to his girlfriend that the victim would not be returning -- indicate consciousness of guilt or, at the very least, are inconsistent with his claimed lack of knowledge of the victim's whereabouts (see People v Bierenbaum, 301 AD2d 119, 135-139 [2002], supra; People v Seifert, 152 AD2d 433, 443-444 [1984], supra).

Perhaps most troubling, though, is the physical proof regarding the victim's blood, which consisted of evidence that hundreds of recent stains had been caused by the spattering of her blood. The stains were found on two doors, door casings and a throw rug in the kitchen adjacent to the garage, and on the garage floor of the home. A senior police investigator, Steven Anderson, described how blood changes color from red to brown as it dries and stated that the victim's blood, which he observed in the home on September 14 and 15, 2001, was red. He indicated that the blood was diluted and portions of it had been wiped away while still moist.

An expert witness for the People, Henry Lee, testified that the victim's blood, which he examined in photographs, would not appear that same red color after a month. Lee confirmed Anderson's opinion that the blood found was consistent with a clean-up attempt, and also explained that the shape of the stains demonstrated that the victim would have been at or below a height of 29 inches when her blood was spattered. Anderson, Lee and defendant's expert further testified that there was a transfer stain on the throw rug consistent with a bloody object containing the victim's DNA being placed on the rug. Thayer indicated that she laundered the blood-spattered rug twice a month, giving rise to a reasonable inference that the stains were a few weeks old at most. Although defendant suggested that the blood resulted from the victim's April 2001 car accident, that explanation is inconsistent with the age of the blood found and, in any event, refuted by the testimony of a sheriff's deputy that the victim suffered no injuries in the accident.

In sum, the People presented evidence of defendant's motive, expressed intent to kill the victim and make her disappear, opportunity to do so on the night that the victim vanished, and evidence of his consciousness of guilt. This proof, in addition to the hundreds of still-red stains caused by the spattering of the victim's blood, provided sufficient circumstantial evidence for the jury to infer that, after the victim's return home, defendant incapacitated her in the kitchen and repeatedly struck her while she was at a height below 29 inches with an object that was placed on the throw rug, and that he then took her to the garage where she bled an additional amount that was largely wiped away while the blood was still moist. Particularly given the lack of any plausible explanation for the victim's recently spattered blood in the family home, a "valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial" (People v Williams, 84 NY2d 925, 926 [1994], supra).

Although the dissent notes that no additional signs of struggle in the home or injuries on defendant's body were found, the victim was small-framed -- approximately 5 feet 2 inches tall and weighing about 90 pounds at the time of her death -- giving rise to a reasonable inference that defendant could have overpowered her without a struggle when she first entered the home (see People v Kimes, 37 AD3d at 14). The lack of blood on the family mop or in any of the sinks does not indicate, as the dissent posits, that there was no clean-up attempt of the recently-deposited blood, particularly when the expert testimony regarding the diluted appearance of the blood is viewed in the light most favorable to the People. Similarly, while no blood was found in defendant's truck or his all-terrain vehicles, an employee testified that defendant directed him to wash his truck inside and out when he first went to work on September 12, 2001.

The dissent, pointing to the victim's drug abuse and romantic involvement with two men during the months prior to her disappearance, also concludes that other people had motives to cause the victim to disappear. While, as noted above, Tubbs came forward after defendant's first trial to indicate that he had seen another man arguing with the victim at the end of the driveway during the early morning hours of September 12, 2001, the jury was free to disregard this testimony as lacking credibility. Tubbs did not come forward for six years after the victim's disappearance despite extensive publicity, and defendant acknowledges that the jury may have rejected Tubbs's testimony due to his "flashes of anger and impatience," "intemperance," and "emotional outbursts" while testifying. Tubbs's testimony was also contradicted by that of a neighbor, who stated that she heard only a car door closing at the end of the driveway -- which the People argued was defendant closing the door to the victim's vehicle after he moved it to that location from the garage. The neighbor testified that she heard no arguing, raised voices or other commotion from the end of the driveway. In any event, there was no evidence presented that either of the individuals with whom the victim was romantically involved prior to her death had any animosity toward her or motive for killing her, that either individual had access to the areas of her house and garage where her blood was found spattered, that she was bleeding when Tubbs allegedly saw her, or that either individual had previously threatened to kill her and make her disappear, as defendant had.

Furthermore, after viewing the evidence in a neutral light, we cannot conclude that the verdict was against the weight of the evidence. In that regard, we must remain mindful that the jury is the final arbiter of credibility (see People v Davis, 72 AD3d 1274, 1276 [2010]; People v Johnson, 70 AD3d 1188, 1190 [2010]). The appellate courts give great deference to the jury's assessment of witness credibility because "juries have a superior ability to 'separate the true from the false with a degree of accuracy which, according to the theory of our law founded on the experience of many generations, cannot be attained by reviewing judges'" (People v Romero, 7 NY3d 633, 644 [2006], quoting People v Gaimari, 176 NY 84, 94 [1903]). The jury here rejected the testimony of defendant and Tubbs, and appropriate deference must be given to those credibility determinations, rather than setting them aside, as the dissent does. In light of that standard of ...

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