Sundhe Moses - False Confession / Perjury / Misconduct.

Moses, Sundhe; murder; NRE: false confession, perjury/false accusation, police officer misconduct, misconduct that is not withholding evidence, witness tampering or misconduct interrogating co-defendant, misconduct in interrogation of exoneree

Suggestibility issues

[689:652]; 2nd Dept. 6/1/99; affirmed

"[T]he verdict of guilt was not against the weight of the evidence..."

94 N.Y.S.3d 540; Kings Cty. Ct. 1/11/18; motion to vacate granted, due to recantations and police misconduct

"In 1995, when...Moses was nineteen years old, he was charged [with numerous crimes stemming] from a shooting...wherein two males exited a vehicle and shot into a crowd of people. Four-year-old Shamone Johnson was struck by two bullets and died. [Three other people] were wounded.

"[Moses] was identified in a photo array by two eyewitnesses, Sharron Ivory and Octavia Moore. [Two days later,] Detective Louis Scarcella and another officer picked [Moses] up at his home...Thereafter, [he] was interviewed at the precinct by several teams of detectives without being read his Miranda warnings.* He initally denied participating in the homicide and offered the alibi that he would later offer at trial. During this time, he was the subject of a lineup. Moore identified [Moses] in the lineup, but was unable to identify him at trial. In a later lineup, Ivory...also identified [Moore] in the lineup, but was unable to identify [him] at trial."

[* Nickel was never read his Miranda rights.]

"Besides the pre-trial identifications by Moore and Ivory, the only other evidence pointing to [Moses] was an inculpatory statement that he allegedly made to Detective Joseph Falcone after being read Miranda warnings [nearly seven hours after the police had picked him up]."

[According to this supposed statement, Moses "fired one time into the crowd," and a second man fired 4-5 times.]

"[Moses], however, testified on his own behalf at trial and stated that his statement was coerced...[He] stated that Detective Scarcella and other detectives threatened him but only Detective Scarcella struck him in the face, choked him while pressing his head against a wall and blew cigar smoke in his face. [Moses] testified that the other detectives held him down...[He] also offered an alibi witness, the mother of a friend, who testified that [Moses] was in her apartment at the time of the homicide. [One of the shooting victims] testified that he selected a filler [i.e., not Moses] during one of [the] lineups.

"Since the trial, both witnesses [Ivory and Moore] have recanted, in whole or in part, their identification of [Moses] that was made prior to trial. Neither eyewitness identified [Moses] at trial.

"[At a 2017 hearing on the motion to vacate, Moses] offered the testimony of Terrance Morgan, who was acquitted of the murder in a separate trial, but convicted of criminal possession of a weapon.

"Morgan testified that...during the summer of 1995, after Ben O'Garra was murdered, a dispute began between his neighborhood and another rival Brooklyn neighborhood. The dispute resulted in numerous shootings between Morgan's housing project and the housing project where the person who was believed to have killed Ben lived.

"At some point, Morgan was asked to participate in a shooting in revenge for the death of Ben O'Garra...[H]e was picked up by a car and driven to Brownsville with an unknown 'younger dude' and Juju, a drug dealer he knew from the neighborhood. He stated that [Moses] was not with him in the car. According to Morgan, Juju was murdered after the shooting.

"Morgan gave a far more detailed confession to the police than the statement that [Moses] was alleged to have given.

"Morgan remained unequivocal in his statement that [Moses] was not involved in the shooting.

"At the [2017] hearing [on the motion to vacate,] Detective Scarcella was confronted with his involvement in numerous convictions that the Kings County [Court] has vacated, such as Jabbar Washington; Vanessa Gathers; John Bunn; Shabaka Shakur; Rosean Hargrove; Roger Logan; David Ranta; Derrick Hamilton; Robert Hill; Alvena Jenette; and Darryl Austin...[T]he purpose of the testimony was to demonstrate that [Moses] now had a good faith basis...to impeach Detective Scarcella. That impeachment testimony consists of actual findings in the judicial opinions in the cases cited above, as well as public statements issued by the [Kings Cty. DA] in support of motions to vacate some of these convictions. The nature of this impeachment testimony is well documented and consists of, for example, a determination by the Hon. Desmond Green in the case of People v. Lewis a.k.a. Shabaka Shakur, dated May 24, 2015, that Detective Scarcella has a 'propensity to embellish or fabricate statements.'"

from NRE synopsis (by Maurice Possley):

"On August 27, 1995, three men, one dribbling a basketball, strolled up to a public housing project in the Brownsville neighborhood of Brooklyn...Two of the men opened fire with handguns, killing four-year-old Shamone Johnson, who was roller skating. Four others were wounded: [an 8-year-old, a 13-year-old, a 16-year-old], and 19-year-old Alex Moore.

"The two gunmen got into a car where a third man was waiting and sped off."

"Moses was suspected after Larry Cole, who lived in the housing project where the shooting occurred, told police he had heard on the street that Moses was involved. Cole had a history with Moses, who lived in the same housing project. In 1989, Cole tossed boiling water on the then-13-year-old Moses, causing burns on his abdomen and arm. Moses's mother got an order of protection against Cole. Cole was also ordered to pay restitution, although he never did.

"On August 30, 1995, three days after the shooting, [NYPD] Detective Robert Schulman showed a photographic array containing Moses's photo to Sharron Ivory, a witness to the shooting. Schulman reported that Ivory identified Moses as one of the two gunmen.* Schulman also reported that Octavia Moore, another eyewitness, selected Moses's photograph as well."**

[* Though perhaps technically true, it's extremely misleading: After Ivory failed to recognize any of the gunmen, a detective pointed to Moses and told Ivory to select him. (See below.)]

[** Based on Moore's subsequent affidavit, Schulman must have been lying. (See below.)]

"On September 1, 1995, Schulman conducted a live lineup and reported that Octavia Moore identified Moses again...Moore's brother...who had been wounded, also viewed the lineup, but did not identify anyone. Schulman conducted a separate lineup that same day for Ivory and Alex Moore...Schulman said Ivory identified Moses, but Alex Moore identified a filler.

"Detective Joseph Falcone said that by the end of the day, Moses had confessed to being one of the gunmen. As a result, Moses was charged with second-degree murder, four counts of assault, and criminal possession of a weapon.

"Moses went on trial in April 1997. Octavia Moore testified that she identified the gunman as the person in the #1 spot in the lineup -- which was Moses. However, when asked if she saw the gunman in court, she said she did not. She testified that the person she identified was a light-skinned black man, unlike Moses, who had dark skin."*

[* This is very odd. If the above details are correct, the person she had identified in the lineup was Moses. So, how could she have 'mistaken' a dark-skinned black man for a light-skinned one?]

"When Ivory testified, he also said he did not see the gunman in the courtroom."*

[* Fishier still. It's quite unusual for one witness to have (supposedly) identified a suspect in an array or lineup, and then, not been able to identify that same person in court. But for this to be the case with two witnesses -- that's virtually unheard of.]

"Detective Falcone testified that he and his partner questioned Moses, who initially denied involvement in the shooting and claimed he was at the home of a friend, Raynelle Clinkscale, playing video games at the time of the shooting. Falcone testified that about 30 to 40 minutes into the interrogation, however, Moses admitted that he, Morgan, and a third man he did not know went to the housing project and committed the crime. He said that he and Morgan fired the shots while the third man drove a getaway car.

"Moses testified that at the time of his arrest, he was enrolled in commnity college. He said that he was at Raynelle's house at the time of the crime. After he appeared in the lineups, he was taken to an interrogation room where, during the course of the day, at least five different detectives took turns questioning him.

"Moses said that after repeatedly denying involvement, Detective Louis Scarcella struck him in the face. Other detectives held him down while Scarcella choked him. Moses said he was terrified because he did not know what else the detectives might do, so he ultimately admitted to the crime. He said that when he signed the statement -- which he had not prepared -- he tried to smudge his signature as a way of signaling that he was not acting voluntarily.

"Detective Scarcella testified that his only involvement in the case was to arrest Moses on the orders of his superiors. He claimed he left the station around 11 a.m. that day and was not present when Moses signed the statement.

"Clinkscale's mother, Renee Flowers, testified that she came to her father's apartment that day and found Clinkscale and Moses playing video games. She made dinner and they all left her apartment shortly after 10 p.m. -- hours after the shooting had occurred.

"On April 14, 1997, the jury convicted Moses..."

"His appeals were unsuccessful. However, in May 2013, the [Brooklyn DA's] Office wrote to Sundhe that his conviction was under review by the office's conviction review unit because of Scarcella's involvement."

"On December 3, 2013, Moses was released on parole, despite his refusal to admit involvement in the crime. Moses's lawyers, Ron Kuby and Leah Busby, presented the evidence of Scarcella's involvement as well as recantations by Octavia Moore and Sharron Ivory to the parole board.

"Moore signed an affidavit saying that contrary to her testimony at trial, she never identified anyone positively. Rather, she had said one of the men in the lineup 'looked familiar.' When she got to court, she realized that the man she said was familiar was not Moses.

"Ivory also signed an affidavit saying that when he was shown the photographic lineup, he did not see either of the gunmen. However, the detective pointed to Moses and told him to pick him out. Ivory said that when he came to court, he refused to identify Moses because he felt he was no longer under the control of the police or the prosecution."

"In July 2015, Kuby filed a motion to vacate Moses's convictions, citing the evidence of Scarcella's misconduct as well as the recantations of Sharron Ivory and Octavia Moore. In addition, Terrence Morgan provided a sworn statement admitting that he was involved in the shooting and that Moses was not involved. Morgan said that the other gunman was a man he knew as 'Juju,' who had been murdered a few years after the shooting.

"Morgan said the shooting was in retaliation for the murder of Benjamin 'Killer Ben' O'Garro on August 17, 1995 -- 10 days earlier. O'Garro was fatally shot standing at a pay phone in the Fort Greene neighborhood of Brooklyn. According to Morgan, O'Garro was murdered because he stole jewelry from rapper Notorious B.I.G. at an awards ceremony."

"In January 2018, [Brooklyn] Justice Dineen Riviezzo granted the motion for a new trial and vacated Moses's convictions. The judge ruled that had the evidence of Scarcella's misconduct been presented to the jury in Moses's trial, he might have been acquitted."

"On February 16, 2018, the prosecution dismissed the charges."

"Moses received a $3.7 million settlement from the City of New York in 2019. He also filed a claim in the New York Court of Claims which he settled in 2020 for $3,500,000."

[All emphases added unless otherwise noted.]