EVIDENCE DEFENDANT COMMITTED A BANK ROBBERY ONE MONTH AFTER THE CHARGED MURDER WAS NOT ADMISSIBLE UNDER MOLINEUX TO FILL IN A GAP IN THE EVIDENCE OR EXPLAIN A RELATIONSHIP WITH A WITNESS OR TO SHOW A CONSCIOUSNESS OF GUILT; A WITNESS SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY DEFENDANT THREATENED TO KILL ANOTHER WITNESS UNDER THE “OPENING THE DOOR” THEORY BECAUSE THERE WAS NO MISLEADING TESTIMONY WHICH NEEDED TO BE CORRECTED (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the evidence defendant committed a bank robbery one month after the murder should not have been admitted. The Second Department also found that the evidence defendant had threatened to kill another witness should not have been admitted under the “opening the door” theory:

… [T]he evidence of the bank robbery did not fill a gap in the story or illuminate the defendant’s motive, nor was it necessary to explain the nature of the relationship between the defendant and the witness since the nature of the relationship had already been explained by the witness in detail … .

… Supreme Court should not have admitted the testimony regarding the bank robbery as evidence of the defendant’s consciousness of guilt. “Evidence of flight is admissible as circumstantial evidence of consciousness of guilt” … . However, here, the testimony, which contained allegations that the defendant robbed a bank in order to fund his evasion of authorities, was unnecessary given that the People had already established that the defendant fled to Florida and Texas after the murder … .

… Supreme Court also erred in its determination that the defendant “opened the door” on cross-examination to allow the People to elicit testimony that the defendant previously threatened to kill another witness. “The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court” … . “The ‘opening the door’ theory must necessarily be approached on a case-by-case basis” … . “[A] trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … . Here, on cross-examination, defense counsel mostly questioned the witness about the previous lies that the witness told authorities related to certain observations that he made on the night of the murder, which the People had already elicited on direct examination. This did not create a “misleading impression” that required corrective testimony … . People v Smith, 2023 NY Slip Op 01106, Second Dept 3-1-23

Practice Point: This decision demonstrates the limits that should be placed on allowing Molineux (other-crime) evidence to come in. Evidence defendant committed a bank robbery after the charged murder was not necessary to fill in a gap in the proof, explain a relationship with a witness or to demonstrate a consciousness of guilt. Testimony the defendant threatened to kill another witness was not admissible under the “opening the door” theory because there was no misleading testimony to be corrected.