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PEOPLE v. SMITH
63 N.Y.2d 41 (1984)
Court of Appeals of the State of New York.
Argued April 23, 1984.
The institution's dumpsters also were searched that evening. Two corrections officers climbed inside some of the
dumpsters and tried to examine the refuse. One officer saw some plastic bags in the gate corridor dumpster, but could not get at them. In the early morning on May 16, the institution's garbage truck was brought in, and the dumpsters at industry, the gate corridor, the mess hall and the administration corridor were emptied into the truck and compacted, while corrections officers shone their flashlights onto the garbage. The search failed to turn up Payant's body. Later that morning, Green Haven's civilian garbage truck operator, accompanied by two corrections officers, took the truckload of garbage to a dump in Amenia, where the garbage was spread out and examined with the aid of a bulldozer. At that time Payant's body was found encased in three plastic bags, her hands tied behind her back, her clothes in disarray, and a cord tied around her neck. The location of the body led the truck operator to believe that it entered the truck via the industry or the first two gate corridor dumpsters. Plastic bags and cord were present in the package room, and the cords in the venetian blinds of the Chaplain's office had recently been replaced by defendant and others. The plastic bags had been taped together by masking tape. Masking tape was kept in the Chaplain's office. Payant's identification card and badge case were found in a utility closet near H block on May 18. An examination of those items yielded insufficient fingerprints for any identification. Hairs were found near the door to the rear room — the library — of the Catholic Chaplain's complex, and also in the closet of that room. Examination showed those hairs to be microscopically similar to samples of Payant's hair, but it was not possible to make a positive identification. In addition, hairs were found in the belt buckle area and in the bra on Payant's body. Those hairs were found to be microscopically similar to defendant's hair, although again a positive identification could not be made. Several stains in the Chaplain's office tested for blood were negative. Some scrapings from the office did reveal blood, but there was not sufficient quantity to determine its source or age. Dusting of the office and the 55-gallon drum for fingerprints produced nothing. The plastic bags, cord and tape found with the body of Donna
Payant were also examined. While one plastic bag was similar to bags taken from Green Haven, the others were not. Although all 11 pieces of masking tape used on the bags were determined to be from the same roll, the ends of that tape could not be matched to the end of the roll of masking tape found in the Chaplain's office, which was of similar width. No fingerprints were found on the tape. The cord on the body did not match the cord removed from the Chaplain's office venetian blinds on May 27, 1981. The first autopsy on Payant's body was performed during the evening of May 16, revealing multiple injuries both before and after death. The premortem injuries included injuries to the face and head which could have rendered her unconscious instantly, injuries caused by the cord around her neck and hands, and certain injuries on her chest, including a curvilinear erosion on the upper right portion and amputation of both nipples. The postmortem injuries were consistent with the compacting and bulldozing of the garbage. The pathologist testified that his findings were consistent with the theory of the murder posited by the People. A second autopsy was performed on May 19, 1981 by a pathologist who also reviewed photos taken at the first autopsy. He concluded that Payant had died of strangulation. Most of Payant's premortem injuries were found to be internal, which would not produce much external bleeding, including trauma to the head that could have caused rapid loss of consciousness. The pathologist was of the opinion that the amputation of the nipples was caused by a human bite and that the mark on the upper right chest, which occurred shortly before death, could have been a human bite mark. For this reason, he contacted a forensic odontologist. Because of the perceived importance of the wound on Payant's upper right chest, an expert photogrammetrist was employed to reproduce photographs of that area of her body in life-size. These and other materials subsequently were examined by several forensic odontologists retained by the People and by the defense. The bite mark evidence was highly significant: if the curvilinear erosion on Payant's upper right chest was defendant's bite mark there was no innocent explanation
for its presence there. The People produced four forensic odontologists (Drs. Homer Campbell, Arthur Goldman, Lowell Levine and Neal Riesner) who testified that the mark was a bite mark made by defendant. The prosecution's expert witnesses used two methods of identification. First, they compared a stone model of defendant's teeth, as well as impressions made in aluwax from the model, with the life-sized photograph of Payant's chest, identifying by visual observation individual characteristics of defendant's teeth, such as shape of the arch and tooth shape, spacing and rotation, upon which their opinions were based. Second, the prosecution experts made photo-to-photo comparisons of the Payant mark and a bite mark known to have been made by defendant on human tissue four years earlier. The expert witnesses for the defense — three forensic odontologists (Drs. Haskell Askin, Lester Luntz and Irvin Sopher) — were of the opinion that the mark was not defendant's bite mark, and indeed was not a bite mark at all. Their opinions were in large part based on a different technique involving the production of transparencies, made from a model of appellant's teeth, which were laid over the photograph of the mark on Payant's body. Although the defense technique was portrayed as a controlled method by which the results could be objectively evaluated, in fact the experts acknowledged that steps in the production of the transparencies were subject to human variations and that, whichever technique was used, there was no completely objective method of identifying a bite mark. The methods used all depended in part upon expert judgments to establish relationships between teeth and marks. Finally, the People introduced the testimony of an inmate (Robert DiBona) who was housed in the same unit as defendant. That inmate testified that on May 16, 1982, approximately one year after Payant's death and after defendant had been charged with her murder, he and appellant were speaking when defendant, who seemed to be in a very emotional state, "blurted out * * * that he was being driven and he couldn't help himself, that he had to do what he had to do", and that "he shouldn't never have made the phone call, that he deserved to die." The inmate
believed that the reference to the phone call related to defendant's case.
1. Defendant was actually given three consecutive sentences of 25 years to life, but they were imposed under section 70.30 of the Penal Law as it existed before the 1978 amendment (L 1978, ch 481, § 24), and therefore merged into a single 25-year-to-life term. 2. The testimony of the remaining experts, both for the prosecution and for the defense, was substantially similar to that of Drs. Levine and Luntz, respectively. 3. "PC," denoting "Protective Custody," refers to the inmates. 4. In a noncapital case, "[t]he power to review a discretionary order denying a motion to vacate judgment upon the ground of newly discovered evidence ceases at the Appellate Division." (People v Crimmins, 38 N.Y.2d 407, 409.) Even in a capital case, this court has been most reluctant to substitute its discretion "to overturn the lower courts' exercise of discretion in denying a motion for a new trial upon the ground of newly discovered evidence." (Id., at p 416.) 5. The People urge that defendant has no standing to attack the statute on this basis because he has not actually shown any mitigating circumstances, and the statute must be evaluated as applied to him. Where the statute is attacked because it affords no opportunity to show mitigating circumstances, a defendant can hardly be denied review for failure to show any. It would be nothing short of outrageous to put a defendant to death because his counsel failed to make an offer of proof of mitigating circumstances, when the statute did not permit the sentencer to consider any mitigating circumstances. Moreover, death penalty statutes have been reviewed without a specific showing by defendant that the constitutional defects actually prejudiced him. (See, e.g., Roberts [Stanislaus] v Louisiana, 428 U.S. 325; Woodson v North Carolina, 428 U.S. 280; and People v Davis, 43 N.Y.2d 17.) 6. In the Supreme Court's most recent decision on the subject, Eddings v Oklahoma (455 U.S. 104), the majority did not perpetuate the reservation as to life-time inmates. 7. While the dissent notes that evaluating deterrence and alternate punishments is for the Legislature, not the courts, such considerations are hardly to be ignored by us in light of the Supreme Court's reference to deterrence as a basis for its persistent "lifer" reservation (see Lockett v Ohio, 438 U.S. 586, 604, n 11). In order to determine the proper application of that reservation, it is obviously necessary to consider the basis on which it rests. 8. For example, mental defect short of insanity (see, e.g., Lockett v Ohio, 438 U.S. 586, 612-613), which is not specified in New York's statute, might be a mitigating circumstance. While the dissent takes comfort from the Supreme Court's approval in Proffitt v Florida (428 U.S. 242) of a death penalty statute which contained a limited list of mitigating factors, the court later made clear that, in approving the Florida statute, "six Members of this Court assumed * * * that the range of mitigating factors listed in the statute was not exclusive" (Lockett v Ohio, 438 U.S. 586, 606, supra). Similarly, the Court's approval of the Texas statute in Jurek v Texas (428 U.S. 262) rested on the conclusion of three Justices that the statute was broadly interpreted so as to permit the sentencer to consider whatever mitigating circumstances the defendant might be able to show. (Lockett v Ohio, 438 U.S. 586, 607, supra.) 9. Our conclusion is consistent with the results reached by other courts. (See Shuman v Wolff, 571 F.Supp. 213, 217, app pending ["(i)mposing mandatory capital punishment for the life term prisoner who intentionally kills is to consider but one aspect of the character and record of the individual while ignoring totally the circumstances of the crime for which he is being sentenced"]; State v Cline, 121 R.I. 299, 303 ["a death sentence imposed by a sentencer who is not statutorily authorized to consider mitigating circumstances is a nullity"]; Graham v Superior Ct., 98 Cal.App.3d 880, 888 [a mandatory death penalty "is not sufficiently narrow to encompass a consideration of mitigating factors required for a finding of constitutionality"].) 1. At oral argument counsel could recall no similar New York homicide and only one foreign case has been called to our attention (see State v Cline, 121 R.I. 299). 2. These elements distinguish this subdivision of section 125.27 from the subdivision invalidated in People v Davis (43 N.Y.2d 17). The Davis decision actually involved two appeals, one from a conviction for killing a police officer, and the other for killing a correction officer. Defendant Davis' judgment of conviction was modified because of a failure of proof. In the companion James case, defendant was convicted of murdering a correction officer and sentenced to death. We declared the subdivision involved in that case unconstitutional because, unlike this subdivision, it failed to take into account the character of the offender (Penal Law, § 125.27, subd 1, par [a], cl [ii]). * As noted in the majority writing, defendant had been sentenced to three consecutive sentences of 25 years to life, once for kidnapping and twice for murder (see People v Smith, 59 N.Y.2d 156, 160, 162, 163) imposed under former section 70.30 of the Penal Law. These sentences merged into a single 25-year-to-life term.
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