Wednesday, November 27th, 2013

Refusal to Allow Defendant to Present Surrebuttal Evidence Requires New Trial

United States v. Murray, No. 11-0351-cr (2d Cir. Nov. 27, 2013) (Leval, Sack, and Hall), available here

This published decision holds that the district court’s refusal to allow the defendant to present surrebuttal evidence to respond to new evidence introduced by the government on rebuttal denied  him his right to present a meaningful defense. Judge Hall dissents.

A jury found Murray, a firefighter, guilty of four counts relating to the cultivation of marijuana plants in the basement of a Bellerose, Queens, home owned by Cody, a fellow firefighter who knew Murray. The trial was essentially a credibility contest between Cody, who pled guilty and testified for the government, and Murray, who testified in his own defense. Cody claimed that Murray hatched the idea of growing marijuana in Cody’s house and that Murray was intimately involved in the crime. Murray, in contrast, testified that he knew nothing of the marijuana and visited Cody’s home only about five to seven times to do construction work there.

To rebut Murray’s testimony, the government presented cell site records for Murray’s phone showing that approximately 100 calls bounced or “pinged” off a cell tower near Cody’s house during the relevant three-month period. The implication was that Murray had lied about visiting Cody’s home only a few times.

The defense sought to present a surrebuttal witness to show that Murray was in the presence of the cell tower for reasons other than to visit Cody’s house. The district court refused to allow the witness to testify, holding that the cell phone evidence did not meaningfully incriminate the defendant because the jury had previously learned that such evidence did not necessarily mean that the defendant was at (or even near) Cody’s house.

The court of appeals held that the refusal to allow the surrebuttal evidence was an abuse of discretion that required a new trial. First, the Court rejected the government’s argument that Murray had a full opportunity to present the evidence in question on his direct case and therefore had no right to a “second chance” on surrebuttal. Judge Leval’s majority opinion ruled that “[u]ntil the government offered the cell tower evidence on its rebuttal case, the question whether Murray did or did not make other visits to the general area of Cody’s house had no relevance whatsoever to any issue being tried.”

Second, the Court disagreed with the district court’s ruling that the surrebuttal evidence was unnecessary because the government’s cell site evidence was not meaningfully incriminating. The Court noted that the government had repeatedly emphasized the cell tower evidence in summation, and that the evidence “easily could have influenced the jury” to reject Murray’s testimony and accept Cody’s. Accordingly, the refusal to allow the defense to rebut the evidence was not harmless.

Judge Hall, dissenting, would affirm the conviction on the ground that the government’s cell tower evidence did not raise a “new issue” that the defendant was entitled to counter on surrebuttal.    

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