 Detroy Livingston (Photo: Theodore Parisienne, New York Daily News)
Two officers with the New York Police Department arrived four minutes later. They saw that the two security gates, one for the window and one for the door, were both down. They lifted the door gate and went inside. Jairam Gangaram, who was 32 years old and a clerk at the store, had been shot in the chest and leg and would die a few minutes later. Edward McClean, also a store employee, was shot in the stomach and arm and later taken to Cumberland Hospital. He survived.
The police took several photos of the store, including the entrance and the interior, but they failed to secure the property. The store, which sold marijuana as well as drinks, cigarettes, and snacks, was burglarized the next day.
McClean told one of the officers at the scene that he had been delivering potato chips to the store when two individuals followed him inside after Gangaram opened a locked steel door. The men showed guns and indicated their intent to rob the store, McClean said, but they left after the shooting without taking any money.
A detective tried to interview McClean the next day, but he was still in the ICU. He was interviewed on December 13 and told a detective that as he approached the store with the chips, a Black man inside told Gangaram to “Open the door for your partner.” McClean said he recognized this man from the neighborhood. As Gangaram opened the door, another Black man with a stocking over his face pushed McClean inside and shot him. He said he then heard two or three more shots.
On December 24, 1982, 19-year-old Tracey Evans ran into Officer Deborah Gear of the 79th Precinct and said that she had witnessed three men shoot another man inside the store. She said the three men were “Mickey, James, and Life.”
Gear wrote down Evans’s statement, which said in part: “Tracey state[d] she witnessed the shooting of a male and gave me the names . . . Mickey, James, and Life, they hang out on Gates and Fulton Aves . . . Tracey further stated that on the night of the incident she was smoking reefer with the guys. They were [boasting] about killing the guy and taking a shopping bag full of reefer. The perps also held up a numbers hole.”
Evans said she was leaving town for the holiday and would be back in mid-January to view photos and give a formal statement.
Police interviewed Evans more than five months later, on May 16, 1983.
Now, she said that she had learned about the shooting the next day, when she was smoking marijuana with Dwayne Cook (Mickey), James Mays, and Wayne Hunter (Life). Evans said that Cook said that he and 18-year-old Detroy Livingston, whom he referred to as “Crazy Detroit,” shot Gangaram and took the marijuana from the store.
Detective Leonard Ayers had Evans look at seven books containing arrest photos. She identified Livingston in the seventh book but did not make any other identifications.
Evans gave a third statement on June 4, 1983, at the offices of the Kings County District Attorney. She said that on the night of the shooting, she was coming down the block going to the store on the opposite side of the street of the bodega and saw Livingston, Cook, Hunter, and Mays rush into the store behind McClean. She ran and heard shots coming from inside the store. Evans said that she saw Livingston and the other suspects the next day. Cook described the shooting, she said, and he had a bag of marijuana with a bird stamped on it, which he said he got from the store.
On July 22, 1983, Ayers showed Evans two photographs, one of Mays and one of Cook. She identified them as two of the men involved in the shooting.
After the shooting, McClean moved to Texas, but he returned to New York on October 24, 1983, and viewed photographs at the 79th Precinct, including photos of Mays and Cook. He identified Cook as the person who shot him. McClean again described the events prior to the shooting, but now said that a 13- or 14-year-old boy was inside the store when he returned with the chips. The boy was the one who told Gangaram to open the door, just prior to the would-be robbers rushing in.
McClean was shot in the arm and stomach. He said Gangaram asked him to call 911, but his injuries prevented that. He did not know what happened to the boy. After the shooters left, McClean said, another man came into the store and asked if he should call the police. McClean said yes, and the man left.
In October 1983, Ayers asked prosecutors to draft an arrest warrant for Mays. The district attorney’s office didn’t move forward on the request. It said there was insufficient evidence to arrest Mays under a theory of acting in concert, because McClean did not identify Mays, and Evans said Mays had only gone into the store with the shooters.
From October 1983 through March 1986, there was no documented investigation of the murder. Ayers transferred out of the 79th Precinct in 1984, and two other detectives—Stephen Chmil and Casper Gibbs—took over the case.
Evans made a fourth statement at 10 p.m., on April 17, 1986, and said that she had not told Ayers everything because she was afraid. She said Mays and Hunter had served as lookouts while Cook and Livingston rushed into the store after McClean. Detectives showed her eight photographs, including four fillers, and she identified Livingston, Cook, Mays, and Hunter as the men involved in the shooting.
An hour later, Evans gave a fifth statement to an assistant prosecutor. In this statement, she said that Mays and Cook were the men who shot McClean and Gangaram. Evans said she watched the events from behind a dumpster in front of the store.
Evans said she saw three of the men the next day in a building about a mile away. They had a bag of marijuana and were bragging about the robbery and shooting. At first, she couldn’t remember which three she saw but then said it was Livingston, Cook, and Mays. She said she knew Livingston through her friend, Penny.
Chmil and Gibbs interviewed Mays at a prison in New York on May 20, 1986. He said he knew Cook and Livingston but did not recognize Hunter. He denied any involvement in the shooting.
On June 6, 1986, Evans was given a polygraph test administered by an investigator with the district attorney’s office. The exam notes said that Evans saw four men on the street, including Livingston, and described the shooting as being done by Hunter, who shot Gangaram, and Cook, who shot McClean. She said they took marijuana in a big brown bag. The polygraph examiner reported that Evans was being truthful.
Evans viewed Livingston in a court-ordered lineup on July 7, 1986, and she identified him as one of the shooters in the murder. Livingston was arrested. The paperwork with his arrest said that Mays and Cook were the shooters. At the time of his arrest, Livingston was in jail at Rikers Island, on an unrelated drug charge. (In 1988, he pled guilty to this charge and received a sentence of two to four years in prison.)
Cook was arrested on July 20, 1986. Both men were charged with second-degree murder, attempted second-degree murder, robbery, and four weapons violations. No one else was charged in the crime.
After his arrest, Cook gave two statements to detectives. He said he had been living in California since around the end of 1982, although he was uncertain whether he moved before or after December 11. In his second statement, he said that Mays, Livingston, or another man was the shooter. But he also said that Livingston and Mays didn’t hang out on DeKalb Avenue. Cook’s arrest paperwork also said that Livingston was not one of the shooters.
Livingston and Cook were to be tried together. At a pre-trial hearing on October 7, 1987, Livingston’s attorney said that Evans had identified Mays as the shooter and asked why he hadn’t been arrested.
The prosecutor said that Evans had provided inconsistent statements but had named Livingston and Cook as the shooters in her initial statement and in her grand jury testimony. “In between are the audiotapes and polygraph where apparently some of the nicknames she’s using get jumbled up in her mind,” the prosecutor said. “Since the initial statement and her sworn testimony about these two shooters, our theory is these two are the shooters.”
At the hearing, McClean said that he saw Cook’s face when Cook pointed a gun at him. He was two feet away, in a well-lighted store.
Evans initially failed to show up for the hearing but later testified that she saw Cook and Livingston, both armed, and Mays going into the store. She said she knew Cook through her friend, Penny, and knew Livingston through Cook. She testified that she watched the shooting from behind the dumpster.
During the hearing, Evans fell asleep while being cross-examined. She said she didn’t use crack or smoke marijuana. She didn’t remember many details of the crime. She said she got it mixed up in her fifth statement when she said that Mays shot McClean and that she couldn’t remember telling the District Attorney’s investigator that Hunter shot Gangaram. She said she mistakenly told the grand jury that Livingston, not Cook, pushed McClean through the front door. She could not describe what Cook and Livingston looked like.
Cook’s attorney presented evidence that McClean told an officer who responded to the shooting that he couldn’t make an identification. Livingston’s attorney presented evidence that the state had conducted Evans’s live identification of Livingston without his attorney being present. Justice Ronald Aiello of Kings County Supreme Court suppressed that identification but allowed Evans to make an in-court identification.
The trial began on October 21, 1987. Just after jury selection, prosecutors offered Livingston a plea deal of first-degree manslaughter, with a sentence of six to 12 years to run concurrently with the drug charges he was facing. Livingston rejected the offer.
On October 26, prior to opening statements, Cook agreed to plead guilty to first-degree robbery, with a sentence of three to nine years, in exchange for his cooperation against Livingston. In his allocution, Cook said that he, Livingston, Mays, and “Life” went to rob a marijuana store on DeKalb Avenue. He said he pushed McClean into the store and shot him. He said he heard another shot but didn’t see Livingston fire a weapon. The man named “Life” took the marijuana.
Livingston’s attorney moved for a mistrial, arguing that the jury had been tainted by statements made during jury selection that linked Cook and Livingston, and that Livingston’s jury challenges no longer reflected a strategy built around a single defendant. Justice Aiello denied the motion.
Officer Christopher Dietz, who responded to the 911 call, testified that both gates were down when he arrived at the store. The window gate was padlocked, he said, but he and another officer lifted the door gate and went inside. He also described five photographs of the crime scene, which were admitted into evidence. They showed the store, which was dingy and cramped, with a dirty, obscured window in the front.
McClean testified about being shot and recognizing Cook. He said that an unknown man entered the store after the shooting, and he and McClean agreed that the man should call 911. He did not remember being interviewed by police prior to his statement to detectives in October 1983.
McClean said the store sold marijuana, packaged in small envelopes with a bird stencil that was unique to the store. He testified that he knew Evans as a customer, who bought marijuana at the store once or twice a week. He said he remembered her because she was extremely talkative and that he did not see her on the night of the shooting.
Evans testified that on the night of December 11, she was near the “reefer store” at 899 DeKalb Avenue, but on the opposite side of the street. She saw McClean get out of a cab and go into the store. She said that Cook and Livingston followed McClean inside the bodega. Mays and Hunter also went inside but remained in the front.
Evans testified that she crossed the street and hid behind the dumpster “in front of the gate—in front of the store.” She later corrected herself to say she was on the left side of the dumpster. Evans said that Cook fired the first shots, and Livingston shot Gangaram from a distance of about 15 feet. She did not know if anything blocked her view of the store window.
Evans said she ran into Cook, Mays, and Hunter the next day. She said that Cook had a shopping bag filled with small brown paper bags of marijuana, each stamped with a black bird. She said she had seen that stamp before on the marijuana she bought from the bodega.
Evans’s testimony was inconsistent and often contradictory. She answered “I don’t know” or “I don’t remember” to dozens of defense counsel’s questions. Evans said she had told Gear that “Detroit” took part in the shooting, but that the officer left the name off her report. She said she had mistakenly told the prosecutor who took down her third statement that she only heard the shooting. Evans testified she had also mistakenly told an investigator that it was Hunter and Cook, not Livingston and Cook, who had guns in their hands.
Dr. Joseph Veress from the Office of the Chief Medical Examiner testified that Gangaram had died from gunshot wounds to the chest and the leg. Both wounds were through-and-through.
Prior to Cook’s testimony, and without his attorney present, he told the court he had changed his mind. He wanted to withdraw his plea and not testify against Livingston. Livingston’s attorney moved for a mistrial, claiming Livingston was prejudiced by the state’s opening statement.
Justice Aiello sharply criticized Cook for his actions, saying he was now subject to a perjury charge and was giving up “the biggest Christmas present” Justice Aiello had ever seen. “Lots of luck pal,” the judge said.
Livingston’s attorney then withdrew his motion for a mistrial.
Livingston did not testify. The district attorney’s investigator and an assistant district attorney who took Evans’s fifth statement testified about what Evans told them, which was at odds with her trial testimony.
Livingston’s mother also testified and said that her son had a visible scar on the side of his face. During cross-examination, she said that Livingston went by the nickname “Detroit,” and that he had a friend named Mickey, although she wasn’t sure if that was the same Mickey said to be involved with the shooting at the bodega.
During closing arguments, the prosecutor attempted to shore up three holes in the state’s case: First, Evans had not said she saw the shooting until 1986. Second, she said she saw the shooting through the store window, but other evidence said the window gate was down and locked when police arrived. And third, Evans had not mentioned Livingston in her initial statement to Officer Gear.
The prosecutor said Evans only came forward as a witness after she moved neighborhoods and felt safer. The prosecutor also said that the window gate must have been up at the time of the shooting and the assailants pulled it down as they left. She said that Dietz had testified the window gate was unlocked.
The prosecutor also said that it was likely that Evans mentioned four names to Gear, but Gear only wrote down three. (Gear did not testify, but her hand-written account of her conversation with Evans was entered into evidence.) “Her memory of that conversation with Officer Gear is four names, the four names that you have heard so much about: Detroy, Mickey, James, and Life,” the prosecutor said “She says she names all four. Why hold back once you have crossed that line to do the right thing … if you look at the police officer’s note, you are going to see something that all of us have done at some point. If you look very closely, it says, Mickey comma James comma Life comma and then, kind of stuck in there, real small, a little bit above the line, the ‘and.’ You can see what was going on here in her mind; four, Mickey comma James comma Life comma—I can’t remember the other one and—she puts the ‘and’ in.”
On November 6, 1987, the jury convicted Livingston on all charges. He was later sentenced to 20 years to life in prison. Prior to sentencing, Livingston told Justice Aiello: “I did not kill [Gangaram]. I don’t know nothing about this, but it happened. They found me guilty, and I can’t say nothing else, but I didn’t kill [Gangaram]”
Cook was convicted at a separate trial of attempted murder and criminal possession of a weapon. He was sentenced to four to 12 years in prison.
Livingston appealed, arguing that there was insufficient evidence to sustain the conviction. The Appellate Division of New York’s Supreme Court affirmed the conviction in 1991. Livingston filed several other pro se motions challenging his conviction. Each was rejected.
Karen Dannett, Gangaram’s daughter, had been 10 years old at the time of the murder. Around 2010, she began researching the case, looking for closure. Instead, she was left with more questions than answers. She wrote to Livingston and, according to the New York Daily News, was surprised by his positive attitude. She then approached the Kings County District Attorney’s Office and asked it to re-investigate the case. During this period, Livingston filed a motion to vacate his conviction, but then withdrew the motion, allowing the district attorney’s Conviction Review Unit (CRU) to re-investigate the case, a process that included interviewing witnesses and reviewing court documents and the trial transcript.
The CRU interviewed Evans. She said she did not remember much about the shooting because she “was on crack, hard,” at the time.
Hunter told the CRU that he never went by the street name, “Life,” and was not familiar with the neighborhood around the bodega. He also did not recognize Cook or Livingston from photos. He said he had no idea about how his name came up in the investigation. He also said that based on his experience buying and selling drugs, marijuana was never sold with an identifying stamp; that was more common with heroin.
Penny Graves told the CRU that she and Evans were friends back in the 1980s. She said she never heard about a murder at a bodega or heard anyone confess to that murder. She recognized a photo of Mays but did not recognize Cook or Livingston.
The CRU also interviewed Livingston, who had been released from prison on April 27, 2021. He said that he hung out with Cook, Mays, and “Life,” around the time of the murder. “Life’s” real name, Livingston learned years later, was Darren Stone. Livingston said the four men occasionally robbed people back then, but they didn’t use guns. Livingston said he knew Graves from grade school but did not recall ever meeting Evans. He said he didn’t know how his name became connected with the shooting. Livingston said he had never been inside the bodega on DeKalb Avenue, as there were plenty of other stores that sold marijuana closer to where he lived at the time.
In its report, released November 3, 2023, the CRU said that Evans was not a credible witness. She testified falsely when she said she didn’t use crack, and her testimony was riddled with inconsistencies and vagueness. Her account of the crime and what she witnessed changed numerous times, and she claimed to have heard Cook’s confession when he spoke in “pig Latin.”
Her testimony also did not align with the physical evidence. For example, she testified that the assailants took marijuana from a chandelier in the store, but the store did not have such lighting.
More significantly, she testified that she saw the shooting through the store window as she crouched behind the dumpster. But Officer Dietz testified that the window gate was down and padlocked when he arrived at the scene. “Unless the killers or the 911 caller locked the display gate in the few minutes after the crime was committed and before Dietz’s arrival—a version of events that strains credulity and that was not supported by any direct evidence at trial—Evans’ version of events would have been physically impossible; the opaque gate would have completely obstructed her view,” the CRU report said.
The CRU report said Livingston’s attorney didn’t adequately cross-examine Evans about all her inconsistent statements. This was exacerbated by Evans’s frequent response, when challenged on her statements, that she didn’t recall making them. As a result, the inconsistent statements were simply read into the record, which the CRU said reduced their impact.
The CRU noted that the jury at Cook’s trial heavily discounted Evans’s testimony, convicting Cook only of the charges based on McClean’s testimony.
The report said that the trial prosecutor misled the jury in closing arguments. First, the prosecutor erroneously told the jury that Dietz had testified the store’s gates were down and unlocked, rather than locked.
“This was a significant transgression,” the report said. “Not only did it misstate the evidence, but it also served to bolster Evans’ dubious testimony that she could see the crime through the display window into the store.”
Second, the prosecutor said that Gear had meant to write Livingston’s nickname in her summary of the conversation with Evans. But there was no evidence of this intent. “While litigants are often permitted some leeway in presenting arguments in summation, this went beyond argument and was clear misrepresentation, and it likely influenced the jury,” the report said.
The report also faulted the police investigation. It said McClean should not have been allowed to view a photo array, because he told the police that the shooter had a stocking over his face. It noted that Stone was an early suspect, but there was no follow through. In addition, Evans had mentioned Livingston’s name in May 1983, but the police did not appear to make any effort to interview Livingston prior to his arrest three years later. This gap prejudiced Livingston’s ability to offer alibi evidence of his whereabouts on the night of the shooting, the report said.
The CRU report said that Livingston should not have been prosecuted on such “scant” evidence. “[Livingston] was convicted solely on testimony from Evans, a troubled young woman who came forward weeks after the crime, who could not corroborate her presence at the scene of the crime, and who gave inconsistent and incredible statements over the nearly five years between the crime and defendant’s trial,” the report, written by Assistant District Attorney Rachel Kalman, said.
Livingston was represented by De Nice Powell and David Greenberg of Appellate Advocates.
At a hearing before Justice Matthew D’Emic on November 3, 2023, the district attorney’s office moved to vacate Livingston’s conviction and dismiss his charges. Justice D’Emic granted both motions.
“I’m sorry he suffered so long,” Dannett said. “I can only pray his later days are better days.”
– Ken Otterbourg
|