Unchallenged Testimony Sends Trial Over Slain Child to Top Court

The Supreme Court took up a case Monday over gunfire in the Bronx that struck and killed a 2-year-old bystander. One suspect took a plea to a simple gun charge, and the state used that man’s testimony to convict another. 

(Image by Adam Love from Pixabay via Courthouse News)

WASHINGTON (CN) — One afternoon in April 2006, there was a street fight in the Bronx that ended with the death of a bystander, 2-year-old David Pacheco.

Fifteen years later, the Supreme Court agreed Monday to decide whether the man convicted of that murder was wrongly denied the chance to confront a witness against him.

Per its custom, the court took up the case this morning without any comment — one grant in a sea of denied cases — but petitioner Darrell Hemphill notes that division among state courts on testimonial hearsay requires resolution in Washington.

“We’re very grateful that the court has decided to review the case, and we look forward to showing at the merits stage why the decision is wrong,” Hemphill’s attorney, Jeffrey Fisher of Stanford Law School’s Supreme Court Litigation Clinic, said in an email.  

Hemphill was implicated in the case by DNA many years after New York’s first lead suspect, Nicholas Morris, pleaded guilty to a gun-possession charge after a mistrial. Importantly, though Pacheco was killed with a bullet from a 9 mm handgun, he pleaded to possession of a .357 revolver.

Hemphill notes that a police search of Morris’ home did turn up ammunition for that .357 but a 9 mm cartridge as well. He says it was it cousin, Ronnell Gilliam, who was in the street fight that turned fatal for Pacheco. Nevertheless it was Hemphill’s DNA on a blue sweater from Gilliam’s apartment that led to Hemphill’s indictment in 2013. Witnesses described the shooter as a thin Black man wearing a blue top. 

Like Morris, Gilliam pleaded guilty to a lesser charge, receiving a five-year sentence instead of the 25 that involvement in the murder would carry. Gilliam testified at trial that the 9 mm belonged to Hemphill, and prosecutors closed the loop with the admission of Morris’ plea about the .357 revolver.

The New York Court of Appeals upheld Hemphill’s conviction by finding that Hemphill had “opened the door” to testimony from Morris that might otherwise be considered hearsay because he created a “misleading impression” that Morris owned a 9 mm. Prosecutors said the allocution was necessary for correcting the claim. 

Hemphill is serving a 25-year sentence.

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