Second-degree murder count reversed, leaving murder one conviction

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A state appeals court has reversed a second-degree murder conviction but affirmed a first-degree murder conviction for the killing of a witness for the prosecution.

Defendant Willie T. McCullough was convicted in November 2015 before Monroe County Court Judge Christopher S. Ciaccio, of first- and second-degree murder.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, reversed the second-degree murder conviction because it is a lesser included offense of first-degree murder.

McCullough was charged for his involvement in the fatal shooting of a person who was expected to testify in a pending assault case against him.

McCullough’s appellate attorney, Donald M. Thompson, argued that Ciaccio should have granted a challenge for cause to prospective juror No. 8m but the issue was not preserved for appellate review because McCullough’s trial lawyer did not join in the challenge for cause made by a codefendant.

“We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice,” the Fourth Department wrote.

The court also rejected McCullough’s contention that Ciaccio should have granted a defense challenge for cause to prospective juror No. 10 due to that prospective juror’s implied bias.

The prospective juror and the prosecutor were neighbors for only six months, and there was no indication that they ever socialized, according to the decision.

“It appears that the prospective juror did not recognize the prosecutor until the prosecutor raised the issue himself,” the court wrote.

Thompson also argued that there was insufficient evidence to support a first-degree murder conviction, and the verdict is against the weight of the evidence.

“We reject those contentions,” the court wrote.

A defendant is guilty of first-degree murder when, with the intent to do so, they cause the death of a person who was a witness to a crime and the death was caused for the purpose of preventing the victim’s testimony, according to he decision.

“A defendant’s motive to eliminate a person as a witness must be a substantial factor in the murder, even though the defendant may have had mixed motives … The motive can be inferred from a defendant’s conduct and the surrounding circumstances of the crime,” the court wrote.

According to the evidence presented in the trial, there was a pending assault case against McCullough involving the victim and the victim was cooperating with the prosecution.

“The intent to kill the victim, as opposed to injure the victim, was established by evidence that five shots were fired at the victim,” according to the decision.

“The record presented no evidence of another motive for the killing, such as robbery; no personal effects or valuables were taken from the victim,” the court wrote.

“We conclude that the People established that defendant’s motive to hinder his prosecution for the assault was a substantial factor in the murder, and the evidence is thus legally sufficient to establish defendant’s guilt,” the court ruled.

“We further conclude that the verdict is not against the weight of the evidence. However, we agree with defendant, and the People concede, that count 2 of the indictment, charging intentional murder in the second degree must be dismissed as a lesser included offense of murder in the first degree,” the panel wrote.

Thompson also argued that the court should not have admitted hearsay evidence found in a pocket of McCullough’s coat.

“We reject that contention.  The evidence was not hearsay because it was not offered for its truth, but rather to establish a connection between defendant and codefendant,” the court ruled.

“Contrary to defendant’s further contention, we conclude on this record that the court’s cautionary instruction, which the jury is presumed to have followed, sufficiently informed the jury that the evidence was not being offered for the truth of its content,” the court ruled.

“Contrary to defendant’s further contention, the opinion testimony of the expert medical examiner, based upon … her review of autopsy materials, was properly admitted at trial and did not violate defendant’s Sixth Amendment right to confrontation,” the court wrote.

“The record reflects that the testifying expert, who did not perform or observe the autopsy, reached her conclusions based on an independent review of the proper materials rather than the conclusions of the performing medical examiner,” the court wrote.

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