People v. Conyers

Decision Date08 January 1980
Citation49 N.Y.2d 174,400 N.E.2d 342,424 N.Y.S.2d 402
Parties, 400 N.E.2d 342 The PEOPLE of the State of New York, Appellant, v. Thomas CONYERS, Respondent.
CourtNew York Court of Appeals Court of Appeals
Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler and Meredith Anne Feinman, Asst. Dist. Attys., of counsel), for appellant
OPINION OF THE COURT

GABRIELLI, Judge.

Thomas Conyers was convicted in Supreme Court, New York County, of several crimes allegedly committed during and immediately following the armed robbery of Marion Dantzler and Grace Johnson. During his trial, Conyers testified on his own behalf that in fact there had been no robbery and gave a description of the events leading to his arrest which differed significantly from that provided by Dantzler and Johnson. The prosecutor was allowed to cross-examine Conyers, over a timely defense objection, concerning his failure to inform the police of his version of the incident at the time of his arrest. Conyers' silence was also the object of comment by the prosecutor during summation. Upon defendant's appeal to the Appellate Division, that court concluded that Conyers was deprived of a fair trial because of the inquiry into his assertion of his right to remain silent. Accordingly, the Appellate Division reversed the judgment of conviction and ordered a new trial. The People now appeal to this court. For the reasons discussed below, we conclude that there must be an affirmance.

At issue on this appeal is the propriety of prosecutorial use, for impeachment purposes only, of a defendant's silence at the time of arrest. We note that it has long been and remains the law in this State that a defendant's silence cannot be used by the People as a part of their direct case (People v. Rutigliano, 261 N.Y. 103, 184 N.E. 689). Thus, our inquiry today is limited to the use of a defendant's silence for impeachment purposes when that defendant testifies at his trial. We are persuaded that a defendant's silence at the time of his arrest may not be used against him even for impeachment purposes, since such use would violate due process and would improperly penalize a defendant for the assertion of a basic constitutional right.

The course of events which culminated in defendant's arrest was the subject of considerable dispute at his trial. Dantzler and Grace testified that Conyers and a codefendant, Arthur Saunders, had accosted them on a New York City street and forced them at gunpoint into the hallway of a nearby apartment building, where Dantzler and Grace were robbed and bound. Dantzler managed to escape his bonds, and gave chase to Conyers and Saunders. In the course of that pursuit, one of the defendants fired a shot at Dantzler. The chase ended with the arrival of the police, who immediately arrested Conyers and Saunders. There were no other witnesses to the alleged robbery itself, although several witnesses did support parts of Dantzler's description of the chase.

Both Saunders and Conyers testified at their joint trial. 1 Their version of the incidents preceding their arrest was somewhat different from the tale told by Dantzler and Johnson. According to the defendants, they had visited Dantzler in his apartment in order to collect Conyers' winnings on a bet placed with Dantzler the previous day. An argument developed over whether Conyers was entitled to the money, and eventually Dantzler pointed to a pouch on a table and told Conyers to take the money in the pouch. As Conyers reached for the pouch, Dantzler drew a gun, which Conyers then kicked out of his hands. Conyers and Saunders bound Dantzler and left the building with the pouch and the gun. They soon noticed Dantzler chasing them, and began to run until they were stopped by the police.

The prosecutor sought to discredit the defendants' explanation of their encounter with Dantzler as being a recent fabrication. To this end, Conyers was cross-examined about his failure to explain the situation to the police when he was arrested. A defense objection to this line of questioning was overruled, and the prosecutor subsequently referred to Conyers' silence during summation. Defendant contends that his assertion of the right to remain silent at the time of his arrest should not have been used against him even for impeachment purposes. We agree.

Proceeding immediately to the central legal dispute presented by this appeal, initially we recognize that in People v. Rothschild, 35 N.Y.2d 355, 361 N.Y.S.2d 901, 320 N.E.2d 639, we sustained the larceny conviction of a police officer although the People had been allowed to cross-examine the officer concerning his silence at the time of his arrest in an attempt to impeach his claim at trial that he had been engaged in a police undercover operation and had not actually been seeking to obtain money illegally. While the Rothschild case might at first glance seem to resolve the instant dispute, we note that the circumstances surrounding that case were unusual since the officer was under a duty to inform his superiors of his undercover activities, and thus his continued silence in the face of accusation by his fellow officers was extraordinarily probative. Since our decision in Rothschild, we have expressly stated that "(t)he fact that a defendant is silent at the time of arrest may not be used to impeach him at trial" (People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 624, 366 N.E.2d 279, 284). Moreover, the Supreme Court has recently concluded that the use of silence to impeach the testimony of a defendant who was given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is violative of due process (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91). Hence, we are impelled to re-examine our decision in Rothschild in light of subsequent refinements in criminal law and practice.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, Supra, the Supreme Court held that where a defendant has been provided with the warnings mandated by Miranda, and thus has been impliedly promised that his silence would not be used against him, it would be fundamentally unfair to then allow that silence to in fact be used to the detriment of the accused even for the limited purpose of impeachment. In the instant case, it would appear that the police failed to provide Conyers with Miranda warnings. The People suggest that this factual distinction justifies a different result. In essence, the prosecution argues that where Miranda warnings have not been given, the accused does not receive any implied promise that his silence will not be used against him, and thus the use of that silence for impeachment purposes does not run afoul of any concept of fundamental fairness and is not violative of due process. We disagree. It would appear rather anomalous to "reward" improper police practices by allowing the existence of such impropriety to serve as the justification for admitting evidence otherwise inadmissible. Although Miranda does not mandate suppression of statements made by an accused who has not been informed of his rights if those statements have not been elicited by police interrogation, it remains good practice to inform an accused of his rights as soon as is possible. More significantly, the implied promise, contained in the Miranda warnings, that one's silence will not be used against one, is derived not from the words of the Miranda warnings, but from the actual constitutional guarantees which they express. Thus, regardless whether that promise is repeated by the police in the form of Miranda warnings, each and every citizen has already been made just such a promise by the State. That promise is contained in the privilege against self incrimination provided by both the Federal and State Constitutions (U.S.Const. 5th Amdt.; N.Y.Const. art. I, § 6). The State has promised each of its citizens, by ratification of those constitutional provisions, that he may remain silent in the face of accusation. Having made that promise, the State may not, consistent with any concept of fundamental fairness and due process, subsequently renege on that promise by utilizing a defendant's silence against him. The implied promise made to a suspect when he is given Miranda warnings merely repeats and reiterates the promise already made by both our Constitutions. Although it is necessary to repeat that promise in order to ensure that the suspect fully understands his constitutional rights, the failure of the police to do so does not serve to prevent a suspect from relying upon that promise. Moreover, it is a matter of common knowledge that a person who is arrested is not required to speak to the police, and that his silence may not be used against him. This is not an arcane legal principle known only to the learned, but rather is familiar to most citizens. For purposes of a due process analysis based on the unfairness of capitalizing upon the accused's accurate appreciation and exercise of his basic constitutional rights, we deem it irrelevant whether that knowledge was imparted by the police, as is required by law, or was absorbed from our common culture (see, also, Douglas v. Cupp, 9 Cir., 578 F.2d 266, cert. den. 439 U.S. 1081, 99 S.Ct. 865, 59 L.Ed.2d 52). In short, we conclude that the use for impeachment purposes of an accused's silence at the time of his arrest is violative of due process.

There exists, moreover, another reason for precluding use of a defendant's silence for impeachment purposes. It is basic to our system of criminal justice that an accused may not be compelled to incriminate himself (U.S.Const. 5th Amdt.; N.Y.Const. art. I, § 6). While proper application of this principle may vary with the context in which it is sought to be utilized, there can be no doubt but that at the most basic level it provides an accused with the right to remain silent in the face of...

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  • People v. Cetlinski
    • United States
    • Michigan Supreme Court
    • September 11, 1990
    ...have done so moving from a constitutional rationale to an evidentiary one, and vice versa. Compare People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342 (1980) (constitutional grounds), vacated and remanded in light of Jenkins v. Anderson, n. 17 supra, with People v. Conyers, 5......
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    ...other than as it is touched upon inferentially in general discussion of the right to remain silent (e. g., People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342), but it has been passed upon at Criminal Term and in out-of-State cases and legal commentaries. Thus, People v. Burn......
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    ...because they involve testimony of police officers regarding the defendant's post-arrest silence. See, e.g., People v. Conyers, 49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342, vacated, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 3. Summation Petitioner cites various instances where he alleges......
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