Larry Gurley - False Accusation

Gurley, Larry ; murder; NRE: perjury/false accusation, no crime, prosecutor misconduct, withheld exculpatory evidence

[386:640]; 2nd Dept. 7/12/76; affirmed, but two dissenters [from dissent :] "(1) the Trial Judge's charge [i.e., jury instruction] on the subject of justification suffered from highly prejudicial defects of omission and commission and (2) the evidence adduced at the trial was not legally sufficient to establish [Gurley's] guilt beyond a reasonable doubt. The former failing would require a new trial...but because of the latter even more critical and fundamental failing, the indictment must be dismissed...[Gurley] stands convicted of the August 30, 1971 gunshot murder of José Moreno and the attempted murder of Felix Miranda. The shootings allegedly took place in front of a two-family house in Brooklyn, in which the two major prosecution witnesses resided; Beulah Gowins lived on the second floor, Juanita Miranda lived downstairs...[The latter] was the only person the prosecution produced who testified that she saw [Gurley] fire the gun...[She] testified that until she entered a 'drug-free' program in October, 1971 [i.e., 1-2 months before the shooting], she was on drugs, using about four bags pf narcotics pr day. She further testified that her husband [Felix Miranda, the 'attempted murder' victim]...was a stickup artist and that he was in the habit of carrying around 'a few' guns with him.

"[Gurley] testified that some time before August 30, 1971 Felix Miranda had demanded of him the address of [Gurley's] friend 'Robert' (Juanita's boyfriend, by whom she had become pregnant). [Gurley] replied that he only knew the block on which Robert lived. Because of the refusal to furnish the actual address, Felix shot [Gurley] in the right arm a week before the subject incident. The bullet shattered [Gurley's] ulna and he was in the hospital for two days, emerging with his right arm encased in a double cast down to his knuckles. [Gurley] is right-handed.

"According to [Gurley], on August 30, 1971 Beulah Gowins called him at about noon and told him, to come over to her house. [Gurley] told her that her mother was shopping and that he was 'watching the kids' but would be over as soon as possible. At about 5 P.M. Gowins came over to get him...[Gurley] and Beulah Gowins arrived at the latter's apartment and, about two minutes later, Felix Miranda entered with a male friend.

"[Gurley] testified that Felix then 'looked at' Beulah, and said something to her in Spanish. She then said to [Gurley] 'Larry, I do not want any trouble. Would you please leave?' At that moment Felix and his friend were standing near the door. Felix had his hand in his pocket; his friend then left to go downstairs. Juanita was in the bedroom of Beulah's apartment during all of that time. [Gurley] then left with Felix, following right behind as they walked downstairs.

"According to [Gurley], at the foot of the stairway and at the doorway to the house, he saw, standing to his right ('he appeared to be hiding'), the man who had accompanied Felix to Beulah's apartment and had then left. Another man (apparently the deceased, Moreno) was standing in the center of the doorway. As [Gurley] and Felix reached the bottom landing, Felix began hitting [Gurley] on the head with a pistol. [Gurley] turned, grabbed the gun barrel with his left hand and struck Felix with his right arm cast. The gun went off, wounding Moreno.

"The struggle between [Gurley] and Felix spilled over, with [Gurley] falling into the street and Felix the other way. Felix then came over and began to stamp and kick [Gurley]. Felix hit him in the face and then lunged toward the gun to pick it up, but [Gurley] grabbed it and shot at Felix...[Gurley] then staggered home and, later that evening, surrendered himself to the police.

"Thus, [Gurley's] version was that he was assaulted by Felix Miranda and, in the course of the ensuing life-and-death struggle, Moreno was accidentally shot and Felix Miranda had been shot in self-defense.

"The prosecution presented a totally different version. Their witnesses to the events, Juanita Miranda and Beulah Gowins, painted a picture containing none of the self-defense elements related by [Gurley] and was to the effect that [Gurley] fired the gun deliberately and without justification, and did so from the street, aiming at the doorway of the building...The testimony of [Gurley's] ballistics expert strongly tended to disprove the prosecution theory and to support [Gurley's] version.

[T]he prosecution evidence was to the effect that, from the street, a right-handed man, with his right arm in a cast as a result of a shattered ulna, deliberately and knowingly 'took on' Felix Miranda (a 'stick up artist' in the habit of carrying a 'few' guns), and two companions, and that [Gurley] chose to accomplish this task on a public street by using his cast-enclosed arm to transfer a small-caliber, generally inaccurate 'belly' gun into his left hand, making an announcement which could be heard on the second floor, and firing at the entranceway to the building.

"The prosecution case was built upon testimony of the drug-addict, living-on-welfare wife of the 'stick-up artist,' having children by him but claiming to be separated from him. Though Juanita claimed otherwise, the inference is strong that, at the time of the shooting and the ensuing police investigation, she and her drug addiction were being supported by means of a welfare fraud in which she and Felix were engaged, and also by means of the fruits of Felix's 'profession.' She had strong reason to protect Felix and to see that he would not be charged with and convicted of a crime."

[602:184]; 2nd Dept. 10/4/93; county court grant of a new trial (not in Westlaw) affirmed

"Appeal by the Supreme Court, Kings County (Rappaport, J.), dated May 7, 1992, which granted [Gurley's] motion...to vacate his judgment of conviction on the ground of newly discovered evidence and ordered a new trial.

"After a jury trial in 1972, [Gurley] was convicted, inter alia , of murder. According to the People, while standing in the street, [Gurley], aiming from the waist, shot the victim who was standing upon the stoop of a building, which would cause an upward track of the bullet into the victim's body. Nonetheless, the victim's autopsy report established that the bullet's track in the body was downward. This factual predicate tended to support [Gurley's] assertion that the victim was accidentally shot from an elevated position, over [Gurley's] shoulder, while [Gurley] was on top of the stoop struggling to wrest the gun from another person. According to [Gurley], at the time of the shooting, the victim was down at the street level. However, on cross-examination, the prosecutor elicited from [Gurley's] expert witness that the bullet which entered the victim's body might have deflected its path after striking the sternum. This testimony indisputably relied on the parties' understanding that the bullet which entered the victim's body was not a .22 caliber bullet, which would have fragmented had it struck a bone in the victim's body, but rather, was a larger .25 caliber bullet.

"In 1991, [Gurley] moved...to vacate the judgment of conviction on the ground, inter alia , of newly discovered evidence, i.e., a supplemental police report, which had not been made available to [Gurley] during the 1972 trial, and which established that the bullet found in the victim's body was a .22 caliber bullet and not a .25 caliber bullet." [Motion granted.]

NRE synopsis (by Maurice Possley):

"On June 17, 1994, the prosecution dismissed the charges.

"Gurley filed a lawsuit in the New York Court of Claims seeking compensation for his wrongful conviction, but it was dismissed. He filed a federal civil rights lawsuit, which was settled for more than $200,000."