by Douglas Ankney

The Court of Appeals of New York reversed Deshawn Deverow’s murder conviction after concluding the trial court’s evidentiary rulings deprived him of “a meaningful opportunity to present a complete defense.”

At 12:30 a.m. on December 29, 2012, a woman identified as B.M. called 911 to report that a man “just got shot in the head in front of [her apartment] building” at 249 Beach 15th Street in Queens, New York. She stated that she saw the shooters leave the scene in a beige Jeep Wrangler. During the call, B.M. said, “They’re still shooting, ma’am,” and the operator responded, “Okay, I hear it.”

Another caller, identified as anonymous Caller 7, reported that “somebody just got shot” at the same location. Caller 7 did not see the shooting, but heard about 15 shots and reported that the shooter “ran off in a car.” Caller 7 said the victim was “laying down on the sidewalk” and stated he was calling to “save somebody’s life.”

Anonymous Caller 21 reported a shooter who was “still around.” Caller 21 said that there had been two volleys of shots, about eight in the first and five in the second, fired from an “assault rifle.”

Police recovered nine .45 caliber shell casings from across the street, and they recovered 14 assault rifle shells and live cartridges about 250 feet further up the street on the opposite side from the .45 caliber shell casings.

A man identified as “R.M.” was the only eyewitness to testify at the jury trial of Deverow and his codefendant, Jamane Yarbrough. R.M. testified that he and his girlfriend “R.J.” had spent the evening walking around town together. The two of them approached 249 Beach 15th Street when he saw Deverow and Yarbrough — who were across the street and in the location where the .45 caliber shell casings were recovered — draw weapons and fire into a crowd on the other side of the street. One bullet struck Xavier Granville in the head, killing him. R.M. testified that about 13 shots were fired.

Deverow presented a justification defense, claiming that people from the crowd fired at him first. He attempted to call R.J. as a witness, who would have testified that she was not with R.M. at any point on the night of the shooting. The trial court precluded this testimony on the grounds that it would serve only to impeach R.M. on a collateral issue.

Deverow also sought to introduce B.M.’s 911 call and the two anonymous 911 calls as present sense impressions or excited utterances, for the truth of the matter asserted in those calls. But the trial court denied this application, ruling that none of the calls were admissible because there wasn’t sufficient evidence corroborating the statements contained in the calls.

After the jury convicted Deverow, he appealed. The Appellate Division affirmed his conviction, and the Court granted Deverow leave to appeal

The Court observed that “criminal defendants must be afforded ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683 (1986). “Although this ‘right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence,’ People v. Hayes, 950 N.E.2d 118 (N.Y. 2011), a trial court must not apply the rules ‘mechanistically to defeat the ends of justice.’” Chambers v. Mississippi, 410 U.S. 284 (1973). Consequently, “a court’s discretion in evidentiary rulings is circumscribed by” the defendant’s constitutional right to present a defense. People v. Carroll, 740 N.E.2d 1084 (N.Y. 2000).

Nevertheless, a “party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility.” People v. Alvino, 519 N.E.2d 7 (N.Y. 1987). The purpose of this rule is “to avoid undue confusion and unfair surprise on matters of minimal probative worth.” People v. Knight, 600 N.E.2d 219 (N.Y. 1992). But when the evidence is “clearly probative of [a] witness’s ability to accurately recall or to observe the details of” the relevant event, such evidence is not collateral and is admissible. People v. Jenkins, 501 N.E.2d 586 (N.Y. 1986).

Turning to the present case, the Court determined that R.J.’s proffered testimony was probative of R.M.’s ability to observe and recall details of the shooting. At trial, R.M. testified that he was with R.J. until “seconds” before he witnessed the shooting and that he was at the scene to walk R.J. home. If R.J. had testified as indicated by Deverow, her testimony would have directly contradicted a significant portion of R.M.’s account and undermined R.M.’s testimony pertaining to how and where he encountered Deverow and Yarbrough on Beach 15th Street — immediately before they allegedly fired their weapons, the Court explained. Since R.M. was the sole eyewitness to testify at trial and the only person claiming that Deverow fired first, R.J.’s testimony would not be collateral to factual issues to be decided by the jury, the Court determined.

The Court further observed that the three 911 calls are admissible as present sense impressions. This exception to the hearsay rule applies to statements that are “(1) made by a person perceiving the event as it is unfolding or immediately afterward” and “(2) corroborated by independent evidence establishing the reliability of the contents of the statement.” People v. Cantave, 993 N.E.2d 1257 (N.Y. 2013). The Court stated that such statements are “deemed reliable ... because the contemporaneity of the communication minimizes the opportunity for calculated misstatement as well as the risk of inaccuracy from faulty memory.” People v. Vasquez, 670 N.E.2d 1328 (N.Y. 1996). The standard for corroboration of present sense impression requires “some independent verification of the declarant’s descriptions of the unfolding event.” Id.

The Court concluded that each 911 call in the instant case satisfied the contemporaneity requirement. It recounted: “The calls came from the scene of the crime, at the time of the crime. During B.M.’s call, gunshots were still being fired, as acknowledged by the 911 operator. Caller 7 stated that ‘somebody just got shot’ and was ‘trying to save someone’s life’ by making the call, demonstrating the caller’s belief that there was a need for urgent medical attention. Caller 21 spoke in hushed tones because the person the caller perceived as the gunman had just left the scene on foot, and urged the officers to be careful, evincing a belief that the danger had not passed.”

And as for being sufficiently corroborated, the Court observed: “The statements of B.M. and Caller 7, that a man had been shot outside of 246 Beach 15th Street, were corroborated by the discovery of the victim’s body on the sidewalk at that location. B.M.’s call specifically stated that the victim had been shot in the head; the victim’s cause of death was a bullet wound to the head. Caller 7’s report that there were about 15 shots was corroborated by R.M.’s testimony at trial that there were 13 shots in the first round of shooting. Caller 21’s statement that there were two rounds of shots, totaling about 13, fired by a man with an assault rifle in front of 289 Beach 15th Street, was corroborated by the 14 assault rifle shells recovered outside 288 Beach 15th Street that the People introduced into evidence. …” Thus, the Court ruled that the trial judge’s evidentiary rulings deprived Deverow of “a meaningful opportunity to present a complete defense” thereby depriving him due process, i.e., a fair opportunity to defend himself against the prosecution’s accusations. See Chambers.

Accordingly, the Court reversed the Appellate Division and ordered a new trial. See: People v. Deverow, 190 N.E.3d 1161 (N.Y. 2022). 

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