23-6400 United States v. Kidd

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of December, two thousand twenty-five.

PRESENT:

PIERRE N. LEVAL BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6400

DARNELL KIDD, a.k.a. BLACK, a.k.a. DONNEY, a.k.a. DONNEY BLACK,

Defendant-Appellant. MARCUS CHAMBERS, a.k.a. CHINO, a.k.a. CHI D, a.k.a. SP,

Defendant. * _____________________________________

For Defendant-Appellant: HARRY SANDICK (Bharath Palle, on the brief), Patterson Belknap Webb & Tyler LLP, New York, NY.

For Appellee: OLGA I. ZVEROVICH (Christopher D. Brumwell, Steven J. Kochevar, and James Ligtenberg, on the brief), Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Nelson S. Roman, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the April 14, 2023 judgment of the district

court is AFFIRMED.

Darnell Kidd appeals from a judgment of conviction following a jury trial in

which he was found guilty of using a firearm in furtherance of a crime of violence

that resulted in death, in violation of

(j)(1), for which he received a

sentence of 420 months’ imprisonment. On appeal, Kidd argues that (1) the

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

2 district court improperly excluded two 2011 police reports that contradicted the

trial testimony of two government witnesses about Kidd’s movements on the day

of the murder; (2) the district court wrongly denied his motion for a mistrial after

a government witness testified to seeing Kidd at a state probation office; and

(3) the evidence at trial was insufficient to establish the predicate act of violence

underlying his conviction – namely, a Hobbs Act robbery of the victim. We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal, to which we refer only as needed to explain our decision.

We review a district court’s evidentiary rulings under the deferential abuse-

of-discretion standard, “disturb[ing] its rulings only where the decision to admit

or exclude evidence was manifestly erroneous.” United States v. Skelos,

(2d Cir. 2021) (internal quotation marks omitted). That standard governs

our review of a denial of a motion for a mistrial, too. See United States v.

Deandrade,

(2d Cir. 2010). Finally, we review challenges to the

sufficiency of the evidence de novo, viewing the evidence in the light most

favorable to the government and upholding the jury’s verdict “if any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

3 doubt.” United States v. Atilla,

(2d Cir. 2020) (internal quotation

marks omitted).

I. The District Court Did Not Abuse Its Discretion by Excluding the Police Reports.

Kidd first argues that the district court erred in refusing to allow him to

introduce into evidence two police reports prepared by Detectives Peter Martin

and Kevin Farrelly while investigating the murder of Jonathan Johnson more than

a decade earlier for the White Plains Police Department. According to the police

reports, government witnesses Karon Johnson and Skandia Delacruz both

identified a third individual – Mark Jones – as the person who accompanied Kidd’s

co-defendant, Marcus Chambers, to meet with the victim while Kidd stayed

behind. Kidd contends that the district court should have admitted these out-of-

court statements pursuant to the residual hearsay exception of Federal Rule of

Evidence 807. 1 We disagree.

The so-called residual hearsay exception allows for the admission of hearsay

statements “very rarely, and only in exceptional circumstances.” Parsons v.

Honeywell, Inc.,

, 907 (2d Cir. 1991) (internal quotation marks omitted).

1At trial, Kidd also argued that the statements were admissible under Federal Rule of Evidence 613(b), but he does not make this argument on appeal.

4 We have explained that Rule 807 permits hearsay to come into evidence only

where “(i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the

most probative evidence addressing that fact; (iv) its admission is consistent with

the rules of evidence and advances the interests of justice; and (v) its proffer

follows adequate notice to the adverse party.” 2 United States v. Dawkins,

(2d Cir. 2021) (internal quotation marks omitted). The burden is on the

proponent of the evidence to show that an exception to the rule against hearsay

applies. See United States v. Doyle,

, 543–44 (2d Cir. 1997).

As the district court pointed out, Kidd failed to demonstrate that the

statements contained in the police reports had sufficiently strong “indicia of

reliability” to justify their admission. J. App’x at 173. At trial, the detectives

themselves testified that their reports were inaccurate – intended only to

“correspond with the theory that [they] had” of the case “at the time,” and not to

“accurately indicate” what the witnesses had said about who accompanied

Chambers on the day of the murder. Id. at 146, 166. Detective Martin explained

2 Under Rule 807, “a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception” where “(1) the statement is supported by sufficient guarantees of trustworthiness – after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement,” and “(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”

5 that he “flipped” Delacruz’s identifications of Kidd and Jones so that his report

“contain[ed] the opposite of what she said about who stayed” behind with her.

Id. at 146, 149. That account was somewhat corroborated by an audio recording

of Martin’s April 2011 interview of Delacruz, in which Delacruz confirmed that

Chambers “walked off with, with Jules” – that is, Kidd – to meet the victim. See

Suppl. App’x at 67. Detective Farrelly, for his part, emphasized that his report

was “colored” by the police’s “working theory” that it was Jones who went with

Chambers to meet Jonathan Johnson shortly before the robbery and murder. J.

App’x at 166. Farrelly could not “attest that the report that [he] wrote up [wa]s

an accurate account of what Karon Johnson said during the interview,” id. at 167,

making his report vulnerable to concerns about “(1) insincerity, (2) faulty

perception, (3) faulty memory, and (4) faulty narration,” United States v.

Cummings,

(2d Cir. 2017) (alteration adopted and internal

quotation marks omitted). 3

3 While the inconsistencies in these important reports are problematic, we have held that evidence of irrelevant law-enforcement misconduct can “shift the focus away from the relevant evidence of the defendants’ wrongdoing to the tangentially related misdeeds” of law- enforcement officers, creating “the very real possibility that the jury would improperly discredit the government’s case in reaction to [the law-enforcement agents’] allegedly gross misconduct.” United States v. Malpeso,

(2d Cir. 1997). Accordingly, misconduct alone (if any occurred here) does not permit the admission of otherwise inadmissible evidence.

6 It bears noting that the district court allowed defense counsel to examine

Karon Johnson and Delacruz on the statements attributed to them in the reports

incriminating Jones, rather than Kidd, but neither witness said he or she had made

the statements described in the detectives’ reports. In fact, Karon Johnson said

that he believed his 2011 statements to Martin were consistent with his trial

testimony that Kidd accompanied Chambers to meet the victim on the day of the

murder. See Tr. at 138 (“I believe I told [detectives] the person with the blue hat

and blue shirt” – Kidd – “went with Chino [Chambers] that day to the drug deal.”)

On this record, we cannot say that the district court abused its discretion in

determining that the statements in the 2011 reports were not “supported by

sufficient guarantees of trustworthiness” to warrant their admission into evidence.

Fed. R. Evid. 807(a)(1); see also United States v. DeVillio,

, 1190 (2d Cir.

1993) (emphasizing that the residual hearsay exception is only to be “applied in

the rarest of cases”). Because both Karon Johnson and Delacruz were available to

testify about what they said in their respective interviews – and given the lack of

evidence suggesting that either witness had an incentive to testify other than

truthfully on the question – we are not persuaded that the police reports

7 constituted the “most probative evidence” on who accompanied Chambers that

day. Dawkins,

(internal quotation marks omitted).

II. The District Court Properly Denied Kidd’s Motion for a Mistrial.

Kidd next argues that the district court abused its discretion in denying his

motion for a mistrial after Karon Johnson testified that he had encountered Kidd

at a state “[p]robation” office following the murder. J. App’x at 106. In a pretrial

ruling, the district court permitted the government to ask a “very leading

question” concerning this meeting. Suppl. App’x at 14. But given the potential

prejudice that might flow from the revelation that Kidd was on probation (and

thus had a prior conviction), the district court – without objection from Kidd –

instructed the government to refer to the probation office as a “government

agency.” Id. at 11. Although the government complied with the court’s

instruction, the witness inadvertently referred to seeing Kidd at “probation” one

time during his direct examination. This prompted Kidd to move for a mistrial,

which the district court denied.

A mistrial is a “drastic remedy,” United States v. LaFroscia,

(2d Cir. 1973), to be “used with the greatest caution, under urgent circumstances,

and for very plain and obvious cases,” Renico v. Lett,

, 774 (2010)

8 (internal quotation marks omitted). Karon Johnson’s single reference to seeing

Kidd at a “probation” office does not satisfy this high standard.

To begin, the reference to probation was “isolated, apparently unintentional

on the part of the prosecution, and incidental to legitimate areas of inquiry.”

Deandrade,

(footnote omitted). The government had abided by the

district court’s pretrial ruling authorizing leading questions, continued to refer to

probation as a “government agency” in subsequent questions, and consented to

striking the reference from the record. Karon Johnson’s slip of the tongue, in

other words, was nothing more than “a fleeting portion of a response to a proper

question.” United States v. Fermin,

(2d Cir. 1994) (affirming denial

of motion for mistrial where witness’s reference to defendants’ criminal records

was “inadvertent,” “ambiguous,” and “immediately corrected” by a “curative

instruction”), overruled on other grounds by Bailey v. United States,

(1995); see also United States v. Taher,

, 30–31 (2d Cir. 2016) (no abuse

of discretion where district court denied motion for mistrial “after an isolated

instance in which a witness inadvertently revealed that [defendant] ‘went to jail’

instead of using the phrase ‘became unavailable’”).

9 The district court also issued a curative instruction proposed by Kidd

himself, directing the jury that it “may not use reference to a probation office for

propensity purposes.” Tr. at 162. This curative measure helped alleviate any

prejudice caused by the reference. See United States v. Batista,

(2d Cir. 2012) (underscoring that “because we presume that a jury follows the

instructions of the court, the burden is even higher” for a mistrial where the court

“promptly provided the jury with curative instructions”).

Finally, the fact of Kidd’s presence at a probation office did not necessarily

imply that he had been convicted of a crime; indeed, he could have been there in

connection with another person’s term of probation. Given that any inferences to

be drawn from Kidd’s presence at a probation office were at best speculative, and

in light of the extensive evidence of Kidd’s guilt – including his involvement in the

murder, as well as his participation in other criminal activity – it is “extremely

unlikely” that Karon Johnson’s passing reference to “probation” “contributed to

the guilty verdict.” United States v. Castano,

(2d Cir. 1993). We

have consistently affirmed the denial of mistrials in similar circumstances. See,

e.g., United States v. Smalls,

, 85 (2d Cir. 2018), as amended (Apr. 20,

2018); United States v. Latulas,

(2d Cir. 2017). Under such

10 circumstances, we cannot say that the district court abused its discretion in

denying Kidd’s motion for a mistrial.

III. There Was Sufficient Evidence of a Completed Hobbs Act Robbery.

Kidd finally challenges the sufficiency of the evidence concerning the

predicate act of violence – namely, Hobbs Act robbery – underlying his conviction.

Again, we disagree.

Hobbs Act robbery requires the government to prove that a defendant

(1) obtained or took the property of another; (2) against the victim’s will by actual

or threatened force, violence, or fear of injury; (3) thereby delaying, obstructing, or

affecting interstate commerce. See

(a). Kidd concedes that

Hobbs Act robbery constitutes a “crime of violence,”

(c), and

therefore functions as a valid predicate offense for his conviction under

(j)(1). He nevertheless asserts that while the government put forth

“evidence of an attempted robbery,” it failed to prove that Jonathan Johnson’s

homicide “was committed in the course of a completed robbery.” Kidd Br. at 46.

In particular, Kidd contends that the government demonstrated only that he and

his accomplice tried to steal marijuana from Jonathan Johnson, not that they

actually did so.

11 A defendant contesting the sufficiency of the evidence “bears a heavy

burden.” United States v. Coplan,

(2d Cir. 2012) (internal quotation

marks omitted). Here, ample evidence demonstrated that Chambers and Kidd

stole marijuana from Jonathan Johnson. Karon Johnson, for example, testified

that upon returning from meeting Jonathan Johnson, Chambers “adjusted . . . a

Ziplock bag of weed that was in his pants” before “t[aking] off” with Kidd. Tr. at

133. Another witness saw Chambers and Kidd running and recalled that one of

them “was holding his pants” in a manner consistent with being in possession of

a bag of marijuana. Id. at 225. Delacruz explained that while she and Chambers

did not have drugs when they traveled to White Plains that day, the pair returned

to Yonkers with a “couple of Ziploc bags” of marijuana. Id. at 302, 329–30.

Kidd makes much of the fact that marijuana and other valuables were found

on Jonathan Johnson’s body by police officers, suggesting that his killers had

abandoned the plot to rob him after the shooting occurred. But it is hardly

“illogical,” as Kidd insists, that Chambers and Kidd “stole some of the marijuana

while also leaving marijuana and other valuables” behind. Kidd Br. at 46.

Having murdered Jonathan Johnson, Chambers and Kidd had a strong motive to

flee the scene quickly, which was consistent with their taking some of Johnson’s

12 marijuana, but leaving some money and marijuana behind. Viewing the

evidence in the light most favorable to the government, as we must, we cannot say

that no “rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Atilla,

.

* * *

We have considered Kidd’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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