Christopher Livingston - Misleading Forensic Evidence

Livingston, Christopher; murder; NRE: false/misleading forensic evidence, inadequate legal defense

[550:739]; 2nd Dept. 1/29/90; reversed, due to improper jury instruction "The circumstantial evidence charge given by the trial court failed to include language which clearly conveyed the concept that the evidence must exclude beyond a reasonable doubt every reasonable hypothesis of innocence...Although we find that the proof of [Livingston's] guilt was legally sufficient to sustain the verdict, it was not overwhelming. Consequently, the failure to instruct the jury on the reasoning process to be followed cannot be considered harmless error, and reversal and a new trial are required."

from Records and Briefs:

[4] "Sometime after 10 p.m. on April 4, 1986, Nelson Vouse was shot and killed on Hinsdale Street in Brooklyn...[At trial, Livingston] asserted his innocence, suggesting that someone else had fired the fatal shot while he and Vouse were standing near each other on the street. One witness, who was looking directly at both men when the shooting occurred, observed that [Livingston] was not carrying a gun. A second witness who saw [Livingston] run from where Vouse had been shot, also testified that [Livingston] had not been holding a gun. No gun was recovered at the scene."

[23] "Medical examiner Gutierrez found...that the bullet must have been fired from at least 18 inches away ...According to Gutierrez, the bullet trajectory was front to back, at an angle going straight down from a height of 53 inches. Given that [Livingston] is 5'4" (or 64 inches), it would seem impossible for him to fire a bullet at Vouse, going straight down at an angle as Gutierrez testified, without engaging in unlikely physical contortions that could not have gone unnoticed by [Sonia (the main witness)." [Emphases original.]

"As both Sonia and [Livingston] in his statement described, only minutes before this incident a Hispanic man had shot into a group of people in which [Livingston] stood. That crowd did not contain Nelson Vouse. Moments later, at the same time she again saw [Livingston], Sonia saw a Hispanic man on the porch of the dope house. It makes sense that the dispute here in fact was between [Livingston] and the Hispanic man, not between [Livingston] and Nelson Vouse."

[Recall that Livingston was standing next to Vouse when the latter was shot. Thus, it seems that Livingston was the intended target.]

[25] "[W]hile Sonia directly observed [Livingston] and Vouse from the time they started talking and walking until the shot rang out, she never saw a gun, although she was able to see both men's bodies and arms clearly. Nor did she see either man raise his hands or fists in a gesture of argument while she watched them talk. If [Livingston] had been the killer, certainly she would have seen him raise his hands, seen the gun, seen the flash of the shot against the evening sky. However, she saw none of those things; she only heard the shot, saw Vouse fall and [Livingston] run." [Emphases original.]

"Hinkson [the other eyewitness], who was able to see [Livingston's] hands as he was running immediately after the shot was fired, also testified that Livingston had no gun as he ran past him. Thus, if [Livingston] had been the killer, he would have to have dropped the gun at the scene. However, as [26] Officer Williams -- who arrived moments later -- testified, no gun was found despite a search of the area." [Emphasis original.]

[32] "It is fundamental that an indictment is not probative of guilt...In instructing the jury as to the basic legal principles applicable to all criminal cases, a trial court must include a charge [i.e., instruction] that the indictment is of no evidentiary value."

[33] "The Court's [Thaddeus E. Owens] instruction that 'each indictment is the best evidence of the charges against the defendant' flew in the face of this fundamental principle of law."

[35] "Here, it is likely that the jury viewed the instructions as a directed finding of fact, and the fact of the indictment as evidence of guilt."

"In addition to the errors above, the Court's circumstantial evidence charge omitted critical facts essential to an appropriate charge [instruction], thereby skewing this close case irrevocably in the prosection's favor.

"In order for a conviction to rest upon purely circumstantial evidence, the charge [instruction] must include three elements: that the inference of guilt must flow naturally from those facts proven; that all of the facts must be inconsistent with innocence; and, finally, that those facts proven must exclude each and every reasonable hypothesis of innocence."

"[T]he entire charge [instruction] regarding circumstantial evidence failed to inform the jury that as between two permissible inferences, one of guilt and one of innocence, [Livingston] was entitled as a matter of law to the latter."

from NRE synopsis (by Maurice Possley):

"At about 10 p.m. on April 4, 1986, Nelson Vouse left the house of a friend...in Brooklyn on foot. At about the same time, 19-year-old Christopher Livingston left the front porch of a house...on the opposite side of the street where he had been talking to two girls.

"Livingston and Vouse, who knew each other, but not well, were both walking in the same direction. As they passed a [certain] house, they were walking side by side. At that moment, a single gunshot rang out and Vouse was fatally struck in the chest. Livingston fled.

"Livingston was identified as walking alongside Vouse at the time of the shooting. When police interviewed him, he said that earlier that day, he had been confronted by a Hispanic man who fired a shot at him. He denied shooting Vouse or even having a gun at the time of the shooting.

"On April 9, 1986, a New York police crime lab technician found gunshot residue on Vouse's clothing and concluded that the shot had been fired at close range. Because Livingston was the only person close enough to Vouse to have fired the fatal shot, he was charged with second-degree murder.

"Livingston went on trial in Kings County...in the summer of 1987. The crime lab technician testified that based on the amount of gunshot residue found on the clothing, she believed the shot that killed Vouse was fired from less than five feet away.

"Witnesses testified that the only person that close to Vouse was Livingston, although none of the witnesses said they saw a gun or saw Livingston fire a gun. In fact, two witnesses said that Livingston and Vouse both had their hands in their pockets when the shot was fired.

"A jury convicted Livingston of second-degree murder and criminal possession of a firearm, although no gun was ever found. Livingston was sentenced to 20 years to life in prison.

"In 1990, the Appellate Division...reversed the convictions and ordered a new trial. The court held that the judge had given faulty jury instructions.

"In January 1991, Livingston went on trial for a second time. Livingston's attorney presented the testimony of a woman who lived [on the street in question] and said that she had seen a man come out of a house where drugs were sold daily and fire a shot toward Livingston. She said that Livingston never had a gun and ran after Vouse was shot.

"Peter DeForest, a criminalistics professor at John Jay College of Criminal Justice, testified for the defense that based on his analysis of the gunshot residue, there was no way to say definitively how close the gun was to Vouse when it fired the shot that killed him.

"'The bottom line is I don't know whether this [gunshot] is within five feet or outside of five feet,' DeForest said. 'It's simply not determinative.'

"On January 25, 1991, a jury acquitted Livingston and he was released. Livingston sought compensation in the New York Court of Claims. In July 1992, Livingston was sitting in his car in the Bronx when a man on a motorcycle pulled up next to him and fatally shot him."

[All emphases added unless otherwise noted.]