THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v HENRY TUCKER, Appellant.
Supreme Court, Appellate Division, Second Department, New York
929 N.Y.S.2d 631
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v HENRY TUCKER, Appellant. [929 NYS2d 631]—
Upon the defendant‘s arrest in connection with a shooting incident, he was read his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]), and askеd whether he was willing to answer any questions. The defendant responded “no.” When a police officer subsequently told the defendant that he would be charged with two counts of attempted murder, the defendant stated that he was present at the shooting, but did not shoot anyone. No further statements were made. At trial, the defendant testified in his defеnse, admitting that he had been present during the incident, and identifying the shooter as his friend “Mustafa.” On cross-examination, the People asked the defendant multiple times whether he had told the police, after his arrest, that Mustafa was the shooter.
A defendant‘s post-arrest silence generally cannot be used for impeachment purposes (see People v Conyers, 52 NY2d 454 [1981]; People v Fox, 60 AD3d 966, 967 [2009]; People v Mejia, 256 AD2d 422 [1998]; People v Blacks, 221 AD2d 351 [1995]; People v Spinelli, 214 AD2d 135, 139 [1995]). It is “fundamentally unfair” to assure a defendant that his silence will not be used against him and then to use that silence to impeach his subsequent trial testimony (People v Spinelli, 214 AD2d at 139; see Brecht v Abrahamson, 507 US 619, 628 [1993]; Doyle v Ohio, 426 US 610 [1976]). Moreover, “an individual‘s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth” while “the risk of prejudice is substantial” (People v Conyers, 52 NY2d at 458, 459; see People v Savage, 50 NY2d 673, 677-678 [1980], cert denied 449 US 1016 [1980]; People v Spinelli, 214 AD2d at 139-140; People v Haines, 139 AD2d 591, 592 [1988]). This is because an
While a defendant‘s credibility may bе impeached with a significant omission when, instead of invoking his right to remain silent, he chooses to speak to the police about the crime (see People v Savage, 50 NY2d at 678-679; People v Fox, 60 AD3d at 967; People v Prashad, 46 AD3d 844 [2007]; People v Blacks, 221 AD2d 351 [1995]), here, as the People correctly concede, the defendant expressly invoked his right to remain silent. Nevertheless, the People contend that the defendant did not remain silent because, after he invoked his right to silence, the defendant denied culpability. Here, however, “[t]he defendant‘s mere denial of his involvement in the shooting was not tantamount to a waiver of the right to remain silent” that he had expressly invoked moments before (People v Santiago, 119 AD2d 775, 776 [1986]; see People v Torres, 111 AD2d 885, 886 [1985]; cf. People v Savage, 50 NY2d 673 [1980]). Indeed, as the Court of Appeals has acknowledged, “the State is dеnied the right to draw adverse inferences from the fact that a defendant has maintained an effective silence, even if something less than total” (People v Savage, 50 NY2d at 680 [emphasis added]; see People v Santiago, 119 AD2d 775 [1986]).
Unlike our dissenting colleague, we find this case to be squarely controlled by this Court‘s decisions in People v Santiago (119 AD2d 775 [1986]) and People v Torres (111 AD2d 885 [1985]), and not by the Court of Appeals decision in People v Savage, which presented different circumstances. In Savage, the defendant, upon his apprehension by the police and the administration of Miranda warnings, “vоlunteered, first, ‘I‘m glad I‘m caught—I‘m tired’ and then went on to describe his role in the shooting” (People v Savage, 50 NY2d at 677). Specifically pointing out that the defendant had “responded to the opportunity to inform the officer of his involvement in the crime” in an “almost cathartic confessional,” and did so “in no conclusory form,” the Court of Appeals concluded: “the simplе and undeniable fact is that the defendant here did not remain silent” (id. at 678, 681).
In contrast, in Santiago, the defendant spoke to the police upon his arrest merely to deny his involvement in the shooting, and in Torres, the defendant spoke to the arresting officer, denying his guilt and stating that he knew that one of the complainants
Here, as in Santiago and Torres, and unlike Savage, upon his аrrest and the administration of Miranda warnings, the defendant did not express his desire or willingness to speak to the police. When asked whether he would do so, the defendant responded “no.” Nor did he inculpate himself in the shooting or narrate the circumstances of the shooting to the police. He merely denied his role in the incident (although admitting his presence) in a general manner. In other words, despite his conclusory denial of involvement in the crime, the defendant maintained an effective silence. Moreover, having deliberately availed himself of his right to remain silent, the defendant‘s failure to give a more complete exculpatory statement to the police “may simply [have been] attributable to his awareness that he [was] under no obligation to speak” to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial (People v Conyers, 52 NY2d at 458). Thus, the defendant‘s omission was of minimal probative value (id. at 459).
Furthermore, the dissent correctly observes that a defendant may not use his Miranda rights as a “shield against contradiction of his untruths” and, therefore, a defendant who provides testimony at trial that is inconsistent with a pretrial statement may be impeached with that statement, even where it was taken in violation of Miranda (Harris v New York, 401 US 222, 224, 225-226 [1971], affg 25 NY2d 175 [1969]; see People v Maerling, 64 NY2d 134, 140 [1984]). However, this rule and its underlying rationale are inapplicable here because the defendant did not provide testimony at trial that was inconsistent with his pretrial statement (cf. Harris v New York, 401 US at 225; People v Wise, 46 NY2d 321, 324-325 [1978] [defendant who testified that he was not present when another individual shot the victim was permissibly impeached by pretrial statement that the gun “went off accidentally“]). Here, the defendant‘s direct testimony
Accordingly, the People should not have been permitted tо question the defendant about his post-arrest silence. Under the circumstances, we cannot conclude that this error was harmless. The only evidence presented by the People to prove that the defendant was the shooter was the in-court identification of the defendant by two brothers and their friend, who did not know the defendаnt, and a grainy surveillance video and still pictures taken from the video, from which the face of the shooter could not be clearly discerned. Further, the defendant testified at trial, and identified himself on the video as an individual who fought with one of the eyewitnesses. In addition to the lack of overwhelming evidence of the defendant‘s guilt, therе was a reasonable possibility that the error affected the verdict (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). Indeed, the Court of Appeals has recognized that “evidence of a defendant‘s pretrial silence may have a disproportionate impact upon the minds of the jurors” (People v Conyers, 52 NY2d at 459; see People v Livingston, 128 AD2d 645, 646 [1987]). Further, the error in cross-examination was compoundеd by the prosecutor‘s repeated reference to the defendant‘s post-arrest silence during summation, including her statement that “an innocent person when they‘re arrested for a crime they didn‘t commit and they know who did it will say [who] did it.”
Under these circumstances, we conclude that a new trial is warranted.
In light of our determination, we do not reach the defendant‘s remaining contention. Skelos, Sgroi, and Miller, JJ., concur.
Rivera, J.P., dissents and votes to affirm the judgment, with the following memorandum: On the instant appeal, the defendant contends that he was deprived of a fair trial because the prosecutor cross-examined him and commented during summa-tion
1. Factual Background
This case involves the shooting of two individuals, Stanley McKinnon and Asim Nelson. A few hours after the shooting, the defendant was arrested and advised of his rights pursuant to Miranda v Arizona (384 US 436 [1966]). Although the defendant initially indicated thаt he did not wish to make a statement to the police, he then asserted, “I was there, but I didn‘t shoot anybody.” After a hearing, the Supreme Court suppressed the defendant‘s statement.
At a jury trial, the two shooting victims and an eyewitness, Raheem Ward, made in-court identifications of the defendant as the shooter, who was wearing a black hooded sweatshirt, black pants, and black shoes. Additionally, the jury was presented with video footage depicting the shooting, still images of the video, and the defendant‘s post-arrest photograph. The victims and Ward were able to identify many of the participants in the altercation depicted in the video, except for one man, whо was dressed in a white long-sleeved t-shirt and a “do-rag.”
The defendant testified on his own behalf. During direct examination, the defendant stated, in relevant part, that he was the man dressed in white. He denied shooting McKinnon and Nelson. Notably, he testified that the shooter was the man dressed in “black,” and that the shooter was named “Mustafa.” On cross-examination, the defendant was questioned by the People, in pertinent part, as follows:
“Q. Did you tell the police it was Mustafa who did the shooting?
“A. I told the police. They asked me did you shoot him. I told the police, I was there but I didn‘t shoot nobody.
“Q. But you didn‘t tell them it was Mustafa; right?
“A. They asked me. They asked me—
“the court: Answer the question.
“Q. Did you tell them it was Mustafa?
“the court: Answer that question.
“A. No.”
During summation, the prosecutor commented that an in-nocent
The jury convicted the defendant of two counts of attempted murder in the second degree, and attempted robbery in the first degree.
2. Legal Analysis
Initially, the defendant‘s contentions that he was deprived of a fair trial when the prosecutor questioned him regarding his failure to provide police officers with certain exculpatory information at the time of the arrest and commented on this failure during summation are unpreserved for appellate review (see
Respectfully, contrary to the majority‘s determination, the defendant was not impermissibly cross-examined by the People regarding his purported post-arrest silence. I disagree with the majority‘s statement that the defendant maintained an “effective silence.” I also differ with the majority‘s conclusion that “the defendant‘s failure to give a more complete exculpatory statement to the police . . . was of minimal probative value.”
Instead, as will now be discussed, this case is controlled by the holding in the Court of Appeals’ decision in People v Savage (50 NY2d 673 [1980], cert denied 449 US 1016 [1980]). In Savage, the Court of Appeals held that neither due process nor the privilege against self-incrimination prohibits the impeachment of the defendant with regard to his failure to inform the police of certain exculpatory circumstances to which he later testifies at trial. Specifically, the Court of Appeals stated, “a defendant, who, in the face of Miranda warnings, decides not to exercise his privilege but instead chоoses to speak to the police about the charges against him, enjoys no due process protection from such an inquiry” (id. at 678). Where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant‘s credibility may
Furthermore, although the defendant‘s statement was not admissible as evidence in chief because it was suppressed by the Supreme Court, it was properly used for impeachment purposes (see People v Maerling, 64 NY2d at 140; People v Wise, 46 NY2d 321, 324 [1978]; People v Harris, 25 NY2d 175, 177 [1969], affd 401 US 222 [1971]; People v Blacks, 221 AD2d at 351). The defendant testified during direct examination, inter alia, that he was present at the shooting; that he was the man dressed in white; and that Mustafa, who wаs dressed in black, was the shooter. Those statements were all “volunteered” by the defendant as part of his direct case. Essentially, the defendant argues that, by asserting his Miranda rights and prevailing at the suppression hearing, he was insulated from cross-examination and impeachment with regard to the previously omitted exculpatory еvidence. The defendant cannot be permitted to use the Miranda shield as a sword. He opened the door by testifying during direct examination that Mustafa was the shooter (see generally People v McCall, 75 AD3d 999, 1001 [2010]) and, in effect, divested himself of the protection afforded him by the favorable suppression ruling. Stated another way, “reference to the оmission, because of its negative nature, could not serve substantively as evidence in chief to prove the commission of the crime. It did not lend itself to employment, whether by way of evidence or argument, as anything more than a device for impeachment” (People v Savage, 50 NY2d at 679-680). Herein, the defendant was “alerted to his rights . . . [and] manifest[ed] an unmistakable ‘dеcision to cast aside his cloak of silence’ and [he] should not now be permitted to forestall impeachment of his credibility with the cavalier claim that he did not so intend” (id. at 681, quoting Jenkins v Anderson, 447 US 231, 238 [1980]), especially where the testimony sought to be impeached relates to the ultimate issue in the case, namely, the perpetrator‘s identity.
To the extent that the defendant asserts that the People
The evidence of the defendant‘s guilt, without reference to the errors, was overwhelming, and there is no reasonable possibility that the errors might have contributed to the defendant‘s conviction. As noted above, McKinnon, Nelson, аnd Ward unequivocally identified the defendant in court as the shooter. McKinnon was face-to-face with the defendant; Nelson observed the defendant from six feet away; and Ward, who was standing near McKinnon, also observed the defendant with the gun. In addition, the jury had before it the video, the still images of the video, and the photograph of the defendant. Thus, the errors were harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d at 237).
The defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation (see People v Henry, 95 NY2d 563, 565 [2000]; People v Benevento, 91 NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Viewed as a whole, defense counsel‘s efforts “reflect a reasonable and legitimatе strategy under the circumstances and evidence presented” (People v Tonge, 93 NY2d 838, 840 [1999], quoting People v Benevento, 91 NY2d at 713).
In sum, “[e]rrors are almost inevitable in any trial, improprieties almost unavoidable, but the presence of one or the other furnishes no automatic signal for reversal and retrial” (People v Kingston, 8 NY2d 384, 387 [1960]). Under the circumstances of this case, the defendant was not deprived of a fair trial nor was any substantial right prejudiced. Accordingly, I would affirm the judgment.