Victim’s violent past cited as Brooklyn self-defense case heads to Albany

December 31, 2012 By Michael Virtanen Associated Press

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According to Carl Watson’s account, the rival livery cab driver he shot dead in 2007 was a violent bully who was approaching his car in a threatening fashion and reaching toward his waist, where he was known to carry a gun.

A Brooklyn jury rejected Watson’s self-defense claim, convicting him of manslaughter for killing Livingston Powell. Now New York’s highest court is considering whether Watson should have been allowed to introduce more evidence of Powell’s troubled past, including crimes Watson didn’t specifically know about, to justify shooting the unarmed man.

The Court of Appeals will decide whether to grant Watson a new trial and revise century-old case law meant to exclude prejudicial evidence. The court is set to hear arguments Thursday, with a decision expected a month later.

“Human nature has not changed so much that it is now safe to say that a jury cannot be prejudiced by exposure to evidence of a victim’s prior misdeeds, or be persuaded to conclude that, whatever the circumstances of the particular incident, the victim was a troublesome person who deserved to die,” Brooklyn prosecutors wrote in their court brief.

According to court documents, the immediate facts for Watson, now 52 and serving a 13-year prison sentence, included an argument with Powell, who told him to leave a corner where both were among fellow livery drivers waiting for fares. Powell, nicknamed “Danger,” had talked about a previous shootout with police. He argued and had fistfights with other drivers, including one whose tooth was knocked out. That day, he shoved Watson.

The Jamaican emigre did leave, but he returned later with his brother, who argued with Powell and exchanged threats. That evening, Watson filed a police complaint over the shoving incident. He returned to the corner the next day with a gun in the car.

Powell walked up to the car, wearing protective gloves with cutoff fingers, making fists and allegedly reaching for what Watson believed was a gun. Watson picked up his own gun, shot Powell once in the abdomen and drove off.

Watson’s attorney argued that Powell was the initial aggressor, had made several past references to his guns, and had displayed a knife a half-dozen times. He said Watson, described by colleagues at the nursing home where he worked as peaceful, was justified.

“When a guy like Danger reaches, you don’t think he’s coming out with his address book,” he argued.

The judge refused to allow evidence from Powell’s criminal past, citing New York case law that would allow it only if Watson knew about incidents or if they had been directed against him. The lower court also noted that Powell’s convictions were “largely remote in time.”

Corrections records show that Powell, who was 43 when he died, first went to prison two decades earlier in 1984 for assault and then in 1989 for weapons possession.

Prosecutors argue that the jury heard from other drivers about Powell’s violent reputation and in defense cross-examination heard from a detective that he had shootouts with police. They also argue that it wouldn’t change Watson’s guilty verdict, and that he could have safely retreated and driven away from his last confrontation with Powell instead of shooting.

Watson’s appeals lawyers said 45 other states that have considered the issue decided to admit evidence of a dead person’s violent character, necessary in this case to protect Watson’s due process right to present a defense.

“New York is currently one of only three states with a rule of total preclusion,” they wrote.