The People v. Darrell Hemphill

• Court: New York Court of Appeals
• Decided: July 19, 2022
• Docket: 82 SSM 12
• Status: Published

Opinion

State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 82 SSM 12 The People &c., Respondent, v. Darrell Hemphill, Appellant.

Claudia Trupp, for appellant. Paul A. Andersen, for respondent.

MEMORANDUM:

Upon reargument, following remand from the Supreme Court of the United States,

the order of the Appellate Division should be affirmed.

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The sole question now before us is whether the admission at defendant Darrell

Hemphill’s trial of third party Nicholas Morris’s plea allocution, in violation of defendant’s

Confrontation Clause rights under the Sixth Amendment, is harmless beyond a reasonable

doubt (see Hemphill v New York, 595 US —, —, 142 S Ct 681, 693 n 5 [2022]). For the

following reasons, we hold that the evidence of defendant’s guilt was overwhelming and

that the error was harmless.

Defendant was convicted by a jury of murder in the second degree for the shooting

death of a two-year-old bystander. The People presented evidence that Ronnell Gilliam and

another man had a street altercation with a family. The man with Gilliam then returned to

the scene and fired a 9-millimeter firearm at the family group, missed, and fatally struck

the child victim. The primary disputed issue was the shooter’s identity.

The People originally prosecuted Morris, an associate of Gilliam, for the murder.

However, forensic testing of a blue sweater matching eyewitness descriptions of the

shooter’s attire, recovered from a plastic bag hidden in a closet in defendant and Gilliam’s

grandmother’s apartment, provided a single-source DNA profile matching defendant’s

DNA, not that of Morris. The People consented to a mistrial after concluding that, based

on the DNA and other evidence, Morris was not the shooter. Morris pleaded guilty to

possession of a .357 magnum firearm in exchange for dismissal of the murder indictment

and immediate release. The People then prosecuted defendant for the murder.

At trial, defendant maintained that the shooter was Morris, relying primarily on

Morris’s initial prosecution for the crime. However, there was overwhelming evidence that

defendant, not Morris, was the shooter. Gilliam, pursuant to a cooperation agreement,

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testified that defendant was the shooter. According to Gilliam, defendant ran off shortly

after the fight, and Gilliam telephoned both defendant and Morris. Before Morris arrived,

defendant returned, pulled out a gun, and started shooting. After the shooting, Gilliam and

defendant ran to their grandmother’s nearby apartment and met up with Morris. Morris and

defendant each gave Gilliam a firearm for disposal: defendant, the 9-millimeter used in the

shooting and Morris, a .357 magnum revolver. Defendant gave Gilliam his blue sweater

and told him to “get rid” of it. Gilliam disposed of the firearms, but not the sweater, and

then fled to North Carolina with defendant. Defendant called Gilliam to report that Morris

had identified Gilliam as the shooter and arranged for an attorney to accompany Gilliam to

the police to falsely identify Morris as the shooter. When Gilliam learned that Morris did

not identify him, Gilliam recanted and informed the police that defendant was the shooter.

Defendant is tall and slim and has a tattoo on his upper right arm. Eight eyewitnesses

identified the shooter as a tall, slim, black man wearing a blue sweater, and several

identified defendant as the shooter. Gilliam, defendant’s grandmother, and another

eyewitness who knew defendant before the incident, testified that defendant was wearing

a blue sweater on the day of the shooting. The blue sweater found in the grandmother’s

home and the DNA match were admitted into evidence. Descriptions from various

eyewitnesses that the shooter had a tattoo on his arm provided additional evidence of

defendant’s guilt. Although witnesses described the sweater as having long sleeves, several

nevertheless caught glimpses of the shooter’s tattoo, which one witness testified was

because the sleeves may have been rolled up. In contrast, the consistent witness testimony

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at trial was that Morris did not match the description of the shooter.* He weighed 240

pounds, had no tattoos, and had a large scar down the side of his face—an identifying

characteristic not mentioned by any eyewitness. Given the explicit testimony by Gilliam

and additional eyewitnesses identifying defendant as the shooter, the physical evidence

matching the eyewitness descriptions and linking defendant to the blue sweater, and proof

of defendant’s flight from New York shortly after the shooting and his evasion of

authorities by use of an alias, the evidence of defendant’s guilt was overwhelming.

Further, “there is no reasonable possibility” that the erroneously admitted plea

allocution “might have contributed to defendant’s conviction” (People v Crimmins, 36

NY2d 230, 237 [1975]). The plea allocution neither exculpated Morris nor inculpated

defendant as the shooter, thus allowing defendant to argue to the jury that Morris was the

perpetrator. Indeed, it merely supported a conclusion that Morris possessed a .357 magnum

revolver on the day in question, and Gilliam had already testified to that alleged fact.

Finally, the prosecutor’s reliance on the plea was exceedingly minimal. Under these

circumstances and in light of the other, overwhelming evidence of defendant’s guilt, the

error below was “harmless beyond a reasonable doubt” (id. at 237, citing Chapman v

California, 386 US 18 [1967]).

* That three witnesses initially misidentified Morris as the shooter does not compel a different conclusion, given the chaotic circumstances of the shooting and the fact that the shooter’s face was partially obscured. Additionally, several of these witnesses had seen coverage of the shooting on television and in print media—including photographs of Morris—thereby potentially biasing their identifications. -4- -5- SSM No. 12

On review of submissions pursuant to section 500.11 of the Rules, upon reargument, following remand from the Supreme Court of the United States, order affirmed, in a memorandum. Chief Judge DiFiore and Judges Rivera, Garcia, Wilson, Singas, Cannataro and Troutman concur.

Decided July 21, 2022

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