People v. Betts

• Decision Date: 15 October 1987
• Citation: 514 N.E.2d 865,70 N.Y.2d 289,520 N.Y.S.2d 370
• Parties: , 514 N.E.2d 865 The PEOPLE of the State of New York, Respondent, v. Raphael BETTS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 370

520 N.Y.S.2d 370

70 N.Y.2d 289, 514 N.E.2d 865

The PEOPLE of the State of New York, Respondent, v. Raphael BETTS, Appellant.

Court of Appeals of New York.

Oct. 15, 1987.

Lawrence K. Marks and Philip L. Weinstein, New York City, for appellant.

Robert Morgenthau, Dist. Atty. (Joyce P. Adolfsen and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

The conviction for rape in the first degree, as affirmed by the Appellate Division, 125 A.D.2d 1010, 508 N.Y.S.2d 359, must be reversed and a new trial ordered because the trial court erred in its pretrial ruling that, if the defendant chose to testify in his own behalf at trial, he would be deemed to have waived his privilege against self-incrimination and be exposed to cross-examination, for credibility purposes, with respect to a pending unrelated criminal charge.

The applicable evidentiary rule is that a defendant is entitled to a pretrial ruling, based on the assertion of the privilege against self-incrimination, precluding the prosecution from cross-examining for credibility purposes only as to pending unrelated criminal charges if defendant takes the stand as a witness at the trial. We recognize that the issue seemed to many to have been well settled in New York that a defendant could, as a general rule, be cross-examined in these circumstances. While particular circumstances not present in this case may permit appropriate cross-examination on such an issue, careful analysis of the precedents affecting the specific evidentiary rule manifest the correctness of precluding it here.

Defendant, charged and ultimately convicted of forcible rape in the first degree, had a pretrial (Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) hearing where he sought to block potential cross-examination concerning an earlier youthful offender adjudication and a pending burglary charge. His counsel argued that this line of cross-examination, even on credibilit would be unduly prejudicial and that, if asked about the pending burglary charge, defendant would have to invoke his privilege against self-incrimination. The trial court determined that the People could not inquire into the youthful offender adjudication but could ask about the facts of the burglary charge, and that if defendant testified he would not be allowed to assert his Fifth Amendment right. At trial, the defense unsuccessfully sought to have the court reconsider its pretrial Sandoval ruling and, at the close of the People's case, offered no witnesses.

The People introduced into evidence, without objection by the defense, jeans which had been forcibly pulled off the victim at the time of the attack. During deliberations, the jury asked whether it could consider an otherwise unexplained stain found in the crotch of the jeans. Over defense objection that the jury was being allowed to speculate, the Trial Judge instructed that "the jeans are in evidence and therefore, anything about them that you deem relevant may be considered by you". Defendant was convicted and the Appellate Division affirmed, without opinion.

Our reversal is based on the proposition that a defendant does not, by testifying, automatically and generally waive the privilege against self-incrimination with respect to questions concerning pending unrelated criminal charges. The application in this case, even for credibility purposes only, of the generally accepted defendant-witness waiver principle unduly prejudices defendant by its potential impact on the pending criminal charge and in its actual effect on the charge being tried. It exerts an undeniable chilling effect upon a real "choice" whether to testify in one's own behalf.

The basic rule is well settled in this State that a criminal defendant, as a witness, places himself or herself in the position of any other witness, having the same duties and exposures (Brandon v. People, 42 N.Y. 265, 268; Connors v. People, 50 N.Y. 240, 242 ["assume(s) the burdens necessarily incident to the position"]; People v. Shapiro, 308 N.Y. 453, 458, 126 N.E.2d 559 ["subjects himself to the same rules of examination"]; 8 Wigmore, Evidence § 227[2] [McNaughton rev. 1961] ). The rule includes a defendant-witness being "asked questions disclosing his past life and conduct, and thus impairing his credibility" (People v. Casey, 72 N.Y. 393, 398-399), as well as questions relative to the issue, even though injurious to the defense (People v. Shapiro, 308 N.Y. 453, 458, 126 N.E.2d 559, supra, citing People v. Trybus, 219 N.Y. 18, 113 N.E. 538).

In People v. Tice, 131 N.Y. 651, 30 N.E. 494, one of our key cases, the court addressed the issue in the context of a man charged with murdering his wife asserting an insanity defense. He testified for himself but limited his direct examination to questions regarding his personal history. On cross-examination, the prosecutor asked questions designed to show Tice's state of mind at the time of the murder, his memory, and his level of sanity. The trial court permitted the questions despite Tice's assertion of his privilege against self-incrimination. We reasoned that "[t]hese questions had no relation to the facts brought out in defendant's examination in chief, nor did the facts elicited affect his credibility, but they were pertinent to the issue" (People v. Tice, supra, at 655, 30 N.E. 494 [emphasis supplied] ). The holding articulated that when a defendant testifies, "he subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue, which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time, of the constitutional exemption" (People v. Tice, supra, at 656-657, 30 N.E. 494). The court then added, although the issue was expressly not before it, that "[t]he range and extent of the cross-examination is within the discretion of the trial judge, provided only that it relates to relevant matters or to matters affecting credibility" (People v. Tice, supra, at 657, 30 N.E. 494 [compare, previous emphasized quote] ).

Tice was later relied upon for the general proposition that when a defendant takes the stand that defendant is subject to the same cross-examination as any other witness and that he or she puts credibility in issue like any other witness (see, People v. Johnston, 228 N.Y. 332, 340, 127 N.E. 186; People v. Webster, 139 N.Y. 73, 84, 34 N.E. 730). However, in Johnston we added significantly that a defendant-witness' waiver of his constitutional privilege against self-incrimination "probably extends only to matters that are relevant to the charge on trial; that is, not to collateral matters, that is, facts affecting merely credibility" (People v. Johnston, supra, 228 N.Y. at 340, 127 N.E. 186 [emphasis supplied] ).

In People v. Sorge, 301 N.Y. 198, 98 N.E.2d 637, we articulated the cross-examination rule in broad terms. In Sorge, the defendant was charged with having performed an illegal abortion. She was cross-examined about prior abortions, but she denied the prior acts and was questioned further after her denial. Unlike the present case, she had no pending criminal...