OPINION OF THE COURT
In this case, we are called upon to consider whether and under what circumstances a criminal defendant is entitled to have the jury informed that one or more of his witnesses was rendered unavailable to testify as a result of the witness’ own decision to invoke his constitutional privilege against self incrimination. Although we conclude that no such explanatory instruction was required under the circumstances of this case, we hasten to add that there may be instances in which a proper neutralizing instruction is necessary in order to correct any misimpression that may arise in the jurors’ minds from the witness’ absence at trial.
Defendant was charged with robbery in the first degree (Penal Law, § 160.15), criminal possession of a weapon in the second degree (Penal Law, § 265.03) and criminal possession of stolen property in the second degree (Penal Law, § 165.45). According to the People’s case, defendant had driven in a stolen car to a service station manned by
Approximately one half hour later, two police officers in a patrol car spotted a vehicle at a second service station which matched the radioed description of the vehicle involved in the Lataillade robbery. A high-speed chase ensued, and defendant was ultimately apprehended. In a subsequent search of defendant’s person, the police found a substantial sum in cash, including 49 single dollar bills.
Defendant’s version of events on the morning in question differed markedly from that advanced by the People. According to defendant, he had been in a bar with two other individuals until about 4:00 A.M. on the morning of the robbery and had borrowed the stolen car in which he was arrested from a friend only after he had returned to his home and had decided to go back to the bar. Defendant took the position at trial that it was Alan Whitlock, the person who had loaned him the car, who actually committed the Lataillade robbery.
After defendant’s two alibi witnesses had testified at the trial, defense counsel attempted to call Alan Whitlock to the witness stand, presumably for the purpose of eliciting from Whitlock his role in the robbery. Whitlock appeared, but, outside of the presence of the jury, immediately made it clear that he would refuse to testify on the ground that his testimony might tend to incriminate him. In response to this turn of events, the Trial Judge ruled that defense counsel would not be permitted to place Whitlock on the witness stand for the sole purpose of eliciting his refusal to testify. Although the Trial Judge indicated that he would allow Whitlock to testify if defense counsel demonstrated that he had questions which the witness would answer, defense counsel declined to take advantage of the court’s offer, stating only that “I intend to ask him things which I don’t think I should be compelled at this point to dis
The trial continued after this incident, and defense counsel called several other witnesses, including one Willis Payne. Payne testified that, during the period when he and Whitlock were in jail together, Whitlock had told him that he and not defendant had committed the crime with which defendant was charged. In spite of this revelation, defendant made no further request to have the jury informed of the reasons for Whitlock’s failure to appear. He did attempt, however, to put another individual, David Cook, on the witness stand, although, like Whitlock, Cook made it clear that he would refuse to testify on constitutional grounds. For the second time, , the trial court held that the witness would not be permitted to invoke the privilege against self incrimination in the presence of the jury unless there was a realistic possibility that the witness would give some testimony relevant to the issues in the case. The court also ruled that defendant was not entitled to have the jury informed of Cook’s decision to stand on his privilege.
At the conclusion of the trial, the jury found defendant guilty on all three counts in the indictment. The conviction was unanimously affirmed by the Appellate Division, which rejected defendant’s contention that he had been deprived of his right to a fair trial because of the trial court’s refusal to allow Whitlock and Cook to take the witness stand. The Appellate Division also concluded that the trial court’s refusal to instruct the jury concerning the reasons for the witnesses’ absence was not error under the circumstances of the case. We agree with the position taken by the Appellate Division, and, accordingly, we hold that the order of
At the outset, we reject defendant’s contention that he had an absolute right to place Whitlock and Cook on the witness stand even after the witnesses had informed the trial court that they had no intention of testifying. As we held in People v Sapia (
For the same reasons, we conclude that there was no error in the trial court’s denial of defense counsel’s request for an instruction advising the jury that the witness David Cook had elected to invoke his constitutional privilege. Similarly, we cannot regard as improper the District Attorney’s refusal to stipulate in open court that Alan Whitlock would have invoked the privilege against self incrimination had he been allowed to take the witness stand. In making these requests, defendant was, in essence, attempting to accomplish indirectly that which we have already concluded could not be accomplished directly. Since the invitation to the jury to engage in unwarranted speculation exists whether the jury is informed of a witness’ refusal to testify by the Trial Judge or by the witness himself, we cannot say that it was error for the trial court in this case to reject defendant’s requests for an explanatory instruction or for a factual stipulation.
This is not to suggest that a defendant is never entitled to ask the trial court to intervene when a witness who might possess information valuable to the defense refuses to testify on constitutional grounds. Just as the trial court has a duty to intercede when there is a danger that a jury will be led to draw an unwarranted inference against the People, so too should the trial court take every reasonable step to ensure that the jury will not draw an improper inference against the defendant as a result of a potential witness’ refusal to speak. Thus, when a jury has been made aware during the course of a trial that a particular witness who has been barred from the witness stand due to his refusal to testify might possess information that would be helpful to the defendant’s case, the trial court should, upon request, give the jurors a neutral instruction advising them that
In this case, defendant might well have been entitled to such a neutral instruction regarding Alan Whitlock’s failure to testify had he made an appropriate request therefor, since the jury had been made aware of Whitlock’s significance to defendant’s case through the testimony given by defendant and by the witness Payne.
The other assertions concerning alleged improprieties in the conduct of his trial require only brief mention. First, defendant contends that the trial court erred in permitting the service station attendant, Lataillade, to make an in-court identification naming him as the perpetrator of the
Defendant also argues that this conviction should be reversed because the District Attorney acted improperly on several occasions during the course of the trial. Although we agree with defendant that there were two or three occasions when the District Attorney overstepped his proper bounds by alluding to uncharged crimes and by making brief reference to physical evidence not mentioned in the People’s bill of particulars, we cannot say on the basis of the present record that defendant was deprived of his basic constitutional right to a fair trial. As is apparent from the record, this was a strenuously contested trial in which both sides pressed their respective advantages at every possible opportunity. And, while we are unwilling to excuse entirely some of the prosecutor’s tactics in this case as mere instances of “overzealous advocacy”, we are also unable to conclude that the prosecutor’s infractions were of constitutional proportion.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed.
Notes
. One Federal court has suggested an instruction which we find particularly well suited in cases such as this: “There has been testimony in this case about [a witness] named [John Doe]. As a result of a hearing held outside the presence of the jury, the court has determined that [Mr. Doe] is not available to be called as a witness by either side in this case. The jury may not draw any inference from the fact that [Mr. Doe] did not appear as a witness” (United States v Martin, 526 F2d 485, 486-487).
. Defendant would not necessarily have been entitled to a similar instruction with respect to the witness Cook’s failure to testify. Since it does not appear that the jury was made aware of Cook’s significance to defendant’s case during the course of the trial, an instruction to the jury to disregard Cook’s absence might have served only to confuse the issues.
. It should be noted that the “suggestive” circumstances which persuaded the court to suppress Lataillade’s pretrial identification were not the result of any misconduct on the part of the police. Instead, the decision to suppress was based upon a series of coincidences and unfortunate instances of poor timing which rendered the accuracy of Lataillade’s police station identification somewhat questionable.