People v. Brown

• Decision Date: 06 June 1978
• Parties: The PEOPLE of the State of New York, Respondent, v. George BROWN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 691

405 N.Y.S.2d 691

62 A.D.2d 715

The PEOPLE of the State of New York, Respondent, v. George BROWN, Defendant-Appellant.

Supreme Court, Appellate Division,First Department.

June 6, 1978.

James B. Malmo, Legal Aid Society, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.

Richard M. Joel, New York City, of counsel (Alan D. Marrus, New York City, with him on the brief; Mario Merola, Dist. Atty.) for respondent.

Before BIRNS, J. P., and EVANS, LANE, MARKEWICH and SANDLER, JJ.

BIRNS, Justice.

We would affirm the convictions of defendant for murder (two counts), robbery in the first degree and possession of a weapon as a felony.

The evidence to support the convictions was overwhelming and this conclusion is accepted by the dissent. We are divided over the issue whether defendant had a fair trial.

Subjectively, opinions may vary on the issue whether a trial was fair, but admeasurement of this trial by an objective standard would not warrant a conclusion of unfairness (People v. Alicea, 37 N.Y.2d 601, 376 N.Y.S.2d 119, 338 N.E.2d 625; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

In our opinion the record is not so replete with error by the prosecutor and the court as to have denied defendant a fair trial under the Constitution. Nor is there here such obfuscation of the development of factual issues which side-tracked "the jury from its basic mission of determining the facts relevant to guilt or innocence". (People v. Alicea, supra.) Certainly if a trial is unfair an appellate court must disregard proof of guilt even if overwhelming. However, there is, as will be shown, very little in this record to support the conclusion in the dissent that there was in this trial " almost complete abandonment of the rules of fair play . . . ."

It was indeed a senseless and brutal murder. The killing occurred during the commission of a robbery in which $25.00 was taken from a register. The jury heard testimony from four witnesses who linked defendant to the commission of the crime. David Himelberg, age 67, the proprietor of the shop in which his wife was shot and killed before his eyes on May 8, 1974 made an in-court identification of defendant as the perpetrator. Two soda delivery men, the Leak brothers, chased the perpetrator through the streets, from the time he left the shop, for a sufficient length of time to identify him from the witness stand. Each of them recalled defendant wearing a brown jacket. Significantly, after losing sight of defendant on a street, they saw him minutes later on a neighborhood stoop not too far from the shop shaking hands with another man and immediately gave this information to the police. The police ascertained that the man on the stoop who greeted the perpetrator was Jerry Clark. Clark testified that defendant ran up to the stoop, saw Clark, shook Clark's hand, and then continued running down the street. Within moments the Leak brothers were at the stoop with a police officer and Clark was asked to tell who the man was whom he had greeted. Clark's acquaintance with the perpetrator furnished a firm lead identifying defendant as the perpetrator.

The .22 calibre bullet which caused Mrs. Himelberg's death, though deformed, had a righthand twist and when defendant was arrested, 14 days later on May 22, 1974, a .22 calibre six-shot revolver was recovered in defendant's apartment. It was found to contain five bullets and there was evidence that it had been fired recently. Ballistic experts could not say that the bullet extracted in the autopsy indeed came from the recovered revolver, but the revolver also had a righthand twist and the fatal bullet was consistent with having been fired from defendant's revolver. In defendant's apartment was a brown jacket which the two Leak brothers testified was like the one worn by the perpetrator when he ran from the Himelberg store.

Thus there was direct and circumstantial evidence more than sufficient to establish defendant's guilt.

The defense offered to the jury was alibi and misidentification.

Defendant's girlfriend and sister and the landlady of the building in which defendant lived testified that defendant was in front of the building on May 8, 1974 from 11:00 A.M. to 2:00 P.M. and hence, it was argued that defendant could not have committed the crime. In an effort to explain the recent firing of the weapon, defendant's girlfriend testified that while she had been with defendant in a park before his arrest defendant had fired at a tree.

At the trial the accuracy of the identification testimony was challenged in two respects as it is now on appeal: One, there was a failure by Mr. Himelberg to identify defendant in a lineup, and two, it was a police officer, Detective Drummond, who suggested defendant to the Leak brothers as the perpetrator and improperly bolstered their testimony.

In further support of its thesis that defendant did not have a fair trial, the dissent points to a number of instances of alleged misconduct by the prosecutor and the court. It is claimed that the alibi witnesses were improperly cross-examined in an effort to show that their information concerning defendant's whereabouts at the time of the crime was not brought by any of them to the attention of the police, and that the court improperly charged the jury on the defense of alibi. Further, that the court, although properly applying the Sandoval rule by refusing to suppress the use of the defendant's record on cross-examination by the District Attorney in the event defendant testified, ¹ perverted the Sandoval procedures by refusing to permit cross examination of the prosecutor's witness Ezel Leak on the same subject and by permitting the District Attorney to unduly elaborate on the nature of Clark's acquaintance with defendant while both were in the same prison; that in summation the District Attorney made improper reference to Mrs. Himelberg lying in her grave; and that evidence of Mr. Himelberg's attempt to correct his error at the lineup injected incurable error into the trial.

The dissent faults the District Attorney for improperly cross-examining defendant's alibi witnesses. The error ascribed is to be found in the questions directed to the failure of each alibi witness to inform the police promptly that defendant was with the witness at the time the crime was taking place in the Himelberg store. Moreover, it is claimed that it was improper for the District Attorney in summation to argue that the alibi witnesses had a duty to give the police the information each assertedly possessed.

Whether any witness is to be believed, and to what extent, is a fact issue for a jury. The credibility of an alibi witness is subject to attack as that of any other witness, and thus, the bias, prejudice, hostility or friendliness of such a witness for defendant is a proper subject for cross examination (Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347; Alford v. U. S., 282 U.S. 678, 687, 51 S.Ct. 218, 75 L.Ed. 624; People v. McDonnell, 9 N.Y.2d 12, 210 N.Y.S.2d 514, 172 N.E.2d 279). Generally any evidence destructive of an alibi is competent (Fisch on New York Evidence, Title IV, Chapter 10, § 240). Accordingly, whether testimony of an alibi is true or is of recent fabrication may be tested by appropriate questions. Certainly the failure of an alibi witness to disclose an alibi until trial must be of interest to fact finders. There is no sound reason why a jury should be deprived of the reasons for this failure in performing their function of determining the truth.

Although there is no duty on the part of an alibi witness to report information as to the alibi to the police (People v. Smoot, 59 A.D.2d 898, 399 N.Y.S.2d 133; People v. Hamlin, 58 A.D.2d 631, 632, 395 N.Y.S.2d 679, 680; cf., People v. Owens, 58 A.D.2d 898, 396 N.Y.S.2d 893), ² nevertheless whether the alibi was only recently disclosed is a factor a jury should consider in assessing the weight to be given to the testimony of such a witness.

In reviewing the record, we find that defense counsel in every instance permitted the District Attorney without objection to cross-examine the witnesses on the failure to transmit the alibi to the police. It is conceivable that the defense was satisfied with their testimony and sought benefit from the explanations given by the witnesses, and for that reason failed to object on any legal grounds. ³

Q. By the way, Mr. Lee asked you if you came to see me. I'm the assistant district atty. in this case.

A. Yes.

Q. Do you know the law says you must come and see me, it's required, that's the law. You didn't come to see me voluntarily?

A. No.

Q. The law says you must come and see me, right? Are you aware of that?

A. I was subpoened.

Q. And when did you come and see me?

A. The week before last. I don't remember the day.

Q. About a week ago?

A. It wasn't a week.

Q. About a week and a half ago?

A. Right.

Q. You came to see me. I'm the assistant district atty., a week and a half ago; is that correct?

A. Yes.

Q. And you came to tell me that we locked up an innocent man, right?

A. Yes.

Q. How come you waited a year to tell us we locked up an innocent man?

A. Why I waited a year?

Q. Why didn't you come see the police May 22nd?

A. Because I never was told to come to court or notified to come to court.

Q. Did you ever think of telling the police they locked up the wrong man when he was arrested?

A. Was I suppose to go to them and tell them you locked up the wrong man?

Q. Yes. You're telling this jury we locked up an innocent man. Why didn't you tell us that when he was arrested? Why did you wait a year for that?

A. I didn't know. I didn't think I'm a witness or what. I didn't know anything about it.

Q. Your sister was living with him when he was arrested, correct?

A. Right.

Q. And you didn't know he was arrested, your sister didn't tell you?

A. I knew he was arrested.

Q. Why did you wait a year to tell...