People v. Culhane

• Decision Date: 13 July 1978
• Citation: 408 N.Y.S.2d 489,45 N.Y.2d 757,380 N.E.2d 315
• Parties: , 380 N.E.2d 315 The PEOPLE of the State of New York, Respondent, v. Charles CULHANE and Gerald McGivern, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 489

408 N.Y.S.2d 489

45 N.Y.2d 757, 380 N.E.2d 315

The PEOPLE of the State of New York, Respondent, v. Charles CULHANE and Gerald McGivern, Appellants.

Court of Appeals of New York.

July 13, 1978.

William M. Kunstler, Michael E. Tigar, New York City (admitted pro hac vice), Karen K. Peters and John Mage, New Paltz, for appellants

E. Michael Kavanagh, Dist. Atty. (Paul Gruner and Edward M. P. Greene, Kingston, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed.

We have examined the several contentions advanced by defense counsel and conclude that there should be an affirmance. We comment briefly with respect to some of such contentions.

On the basis of careful postmortem dissection it can be said that in charging the jury the trial court's marshaling of the evidence fell short of the ideal. The court has an obligation to marshal or refer to the evidence, however, only to the extent necessary to explain the application of the law to the facts (CPL 300.10, subd. 2). The critical issue on appellate review is whether the deficiency, if any, was such as to deny either defendant a fair trial. We are satisfied that the material issues, both factual and legal, were made abundantly clear to the jury in consequence, Inter alia, of the informed efforts of competent defense counsel, and that there was no such inadequacy of explanation or other error of commission or omission as to result in prejudice to either defendant.

Several of the trial court's evidentiary rulings which are challenged by defendant fell within the recognized authority of the Trial Judge involving questions as to the admissibility of evidence offered with respect to collateral matters. We include in this category the exclusion of evidence sought to be introduced to impeach the credibility of Deputy Sheriff Singer the record of the proceeding before the State of New York Employees' Retirement System in which Singer's application for accidental disability retirement based on injuries suffered during the escape attempt was denied, and evidence with respect to his receipt from the Police Officers' Association of an award in which there was a recital of events at some odds with his testimony. Similarly, evidence of Bowerman's record of past armed escapes and of his psychiatric disorders would have gone only to the collateral issue of his role in the escape attempt. ^* Nor do we find any error in the trial court's rulings as to the scope of the People's cross-examination of either defendant as to prior convictions (including the facts underlying such convictions) and acts of misconduct. Neither was it error to admit the photograph of the deceased Deputy Sheriff. We find no abuse of discretion as a matter of law in any of these evidentiary rulings. It is, of course, not determinative or even persuasive that apparently contrary rulings have been upheld in other cases in what may seem to be similar situations.

Within the ambit of the trial court's responsibility was the preliminary factual determination that McGivern's statement of asserted innocence was not spontaneous so as to qualify it for admission under the exception to the hearsay rule. There was no error in the resolution of that question when the statement was not made until McGivern's arrest some two and one-half hours after the commission of the crime.

Finally, we find no error in the denial of defendants' pretrial motions to be permitted to appear as their own cocounsel or in the denial of the posttrial motion to set aside the verdicts because of the failure of the People to produce the photograph of Bowerman after his death.

In sum, we agree with the majority at the Appellate Division that there was no error which calls for a reversal of the conviction of either defendant.

FUCHSBERG, Judge (dissenting).

This murder case has been tried three times. In the first trial, the jury disagreed. The second, which resulted in convictions and sentences of death, was followed by unanimous reversal by this court (33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469), essentially for the failure of the Trial Judge to excuse biased veniremen for cause on the Voir dire. Because the third trial was marred by the exclusion of what I believe to be competent, relevant and potentially exculpatory evidence, I am constrained to vote for reversal and another trial.

Since the salient facts are adequately detailed in our prior opinion, they need only be briefly recounted here. On September 13, 1968, three inmates of the Auburn State Prison, Charles Culhane, Gerald McGivern and Robert Bowerman, were being taken by automobile to a courthouse in Westchester County in connection with a Coram nobis proceeding brought on behalf of Culhane. Two Deputy Sheriffs, Joseph Singer and William Fitzgerald, occupied the front seat. The three manacled prisoners, joined to the vehicle by leather security belts, were in the rear. The party never reached Westchester, the trip ending en route in the death of Fitzgerald and Bowerman and near-mortal gunshot wounds for Culhane and McGivern.

The three survivors were the only eyewitnesses. Deputy Singer, the single one available to the People in effect was arrayed against the two surviving prisoners, each of whom testified in his own behalf at the trial. ¹

According to the story related by Singer, Bowerman and Culhane attacked the deputies from the rear, using their locked handcuffs to choke the two officers as McGivern seized Singer's revolver and fired it at Fitzgerald. Singer went on to state that he then fired at the two defendants, though the medical evidence tended to refute his assertion that he was choked by the handcuffs and the ballistics evidence introduced similar doubts as to his version of the shooting.

Appellants described the events very differently. Their claim was that it was only Bowerman, who, after cutting his own security belt with a concealed razor blade and unsuccessfully trying to persuade his fellow prisoners to do the same, struck at Fitzgerald and Singer and grabbed the latter's gun. As they told it, Bowerman, while holding them at gunpoint, had then undone Culhane's belt and forced Culhane in turn to undo McGivern's belt, at which point Fitzgerald suddenly turned, gun in hand, precipitating an exchange of fatal shots between himself and Bowerman.

Thus, the trial's central factual issue was clearly framed: Had Bowerman, whose penal dossier included a prior history of mental disturbance and futile but violent efforts to escape, set in motion the tragic events of September 13 on his own, with the appellants playing only an unwilling and unwitting part, as they contended, or, instead, had Culhane and McGivern actively aided and abetted Bowerman, as Singer swore?

To back their claim that Bowerman had initiated the escape episode and had carried it through to its grisly end on his own, the appellants, among other things, sought to introduce the official prison and medical records chronicling his past attempts to free himself of prison and police custody. These records would have established that Bowerman was "suffering from a psychosis" and had been frustrated in his plans to escape on at least three earlier occasions. During the 14 years immediately preceding the events which resulted in the two killings involved in this case, he pursued repeated methods of self-release, ranging all the way from suicidal slashing of his wrists to a try at winning his freedom by shooting his way past a detective whose firearm he had seized. As recently as 1964, a Corrections Department guidance counselor officially reported him "highly dangerous". Earlier, he had spent four months in the Matteawan State Hospital for the criminally insane after the State prison authorities at Elmira had at various times observed that he was poorly adjusted, depressed, and emotionally unstable. Significantly, in every one of these documented events, with the possible exception of one at the Brooklyn House of Detention, where an entry indicated that "it was rumored he planned a spectacular jail break with the aid of a girl friend on the outside", he was the lone participant.

The majority, in affirming, nevertheless finds no "abuse of discretion" in the exclusion of this documentary evidence by the trial court, both when offered directly or as grist for cross-examination. It is difficult to understand how these records, unimpeachable in their source and having been kept in the regular course of business (cf. People v. Foster, 27 N.Y.2d 47, 52, 313 N.Y.S.2d 384, 388, 261 N.E.2d 389, 391; Kelly v. Wasserman, 5 N.Y.2d 425, 429, 185 N.Y.S.2d 538, 541, 158 N.E.2d 241, 243), could be claimed to have been collateral, since they bore directly on the main, and most critical question of whether the conceded culpability of Bowerman was shared or unshared with the defendants. ²

Of course, the jury would not have been compelled to conclude that, because Bowerman had demonstrated a propensity for violent jailbreaking and an equally consistent penchant for practicing it without the aid of others, he did in fact follow those...