People v. Dawson

Citation428 N.Y.S.2d 914,50 N.Y.2d 311
Parties, 406 N.E.2d 771, 20 A.L.R.4th 232 The PEOPLE of the State of New York, Respondent, v. Richard Lee DAWSON, Appellant.
Decision Date06 May 1980
CourtNew York Court of Appeals
Edward J. Nowak, Public Defender, New York City (S. Brian Shiffrin, New York City, of counsel), for appellant
OPINION OF THE COURT

GABRIELLI, Judge.

Following a trial by jury in the Monroe County Court, defendant Richard Lee Dawson was found guilty of the crimes of sodomy in the first degree (Penal Law, § 130.50), attempted rape in the first degree (Penal Law, §§ 110.00, 130.35), robbery in the second degree (Penal Law, § 160.10), grand larceny in the third degree (Penal Law, § 155.30) and assault in the second degree (Penal Law, § 120.05). His conviction was affirmed, without opinion, by the Appellate Division, Fourth Department, 69 A.D.2d 1021, 415 N.Y.S.2d 915. On appeal to this court, defendant now contends that his conviction should be reversed because the District Attorney improperly cross-examined a number of defense witnesses regarding their failure to come forward with exculpatory information prior to trial. The instant appeal thus requires us to consider a question which has produced a divergence of opinion among the Justices at the Appellate Divisions: whether and under what circumstances a District Attorney may use a defense witness' prior silence as a basis for impeachment.

The charges in this case arose out of a single incident in which defendant allegedly accosted a woman in an enclosed parking lot at about 3:30 p. m. on the afternoon of April 15, 1975, forced her to perform an act of oral sodomy and, finally, drove away in her car. The car was later found by the police, apparently abandoned, in a parking lot adjacent to the building in which defendant worked. Fingerprints which allegedly matched those of defendant were found on the rearview mirror inside the automobile.

The identity of the complaining witness' assailant was the most hotly contested issue at trial. The complaining witness described her attacker as a black male, about defendant's height with a bushy "afro" and a red tint to his hair. She also stated that he was wearing a blue, knee-length coat. A parking lot attendant who had witnessed a part of the incident testified that the man he saw driving off with the victim's car sported a bushy "afro", but he further stated that the man may have had lighter skin than defendant. Another witness, who attended school with defendant, stated that, on the day in question, he had seen defendant wearing a blue, knee-length jacket resembling the one described by the victim. Finally, three police officers testified that defendant had worn his hair in a bushy "afro" with a reddish tint during the spring of 1975.

Defendant, testifying in his own behalf, denied having committed the crimes charged, asserting instead that he had been at home babysitting for his foster brothers on the afternoon of the assault. This alibi was confirmed by both of his parents, who testified that defendant's father had picked him up at about 2:30 p. m. and had driven him home that day so that he could look after his foster brothers while they went out to do some family errands. When they arrived home at about 4:00 p. m., according to defendant's parents, they found defendant cooking and tending to his brothers, exactly as they had left him. Additional confirmation of this alibi was supplied by defendant's aunt, who testified that she had called defendant's house at 3:17 p. m. on April 15, 1975 and that defendant had answered the telephone at that time.

In order to offset the damaging effect of the presence of his fingerprints inside the victim's car, defendant further testified that he and the victim had been friends for some time and had met in her car on several occasions. Neptune Bembry, an acquaintance of defendant, supported this testimony by stating that he had seen defendant and the victim together and holding hands on at least one occasion. Finally, a second parking attendant who worked at the garage where the incident occurred testified on behalf of defendant. He testified that the man he had seen driving away in the victim's car on the day in question did not resemble defendant.

The District Attorney vigorously cross-examined each of these witnesses in an effort to shake defendant's alibi. Among a host of other questions, each witness was asked whether he or she had come forward and given the same information to law enforcement officials after learning that defendant had been arrested for the crimes charged. In each instance, the witness answered in the negative and gave some brief explanation for his or her prior silence.

Defendant now seeks to have his conviction overturned on the ground that such questioning constituted prosecutorial misconduct and a denial of his right to a fair trial. We note, however, that objection was made to the District Attorney's questioning on cross-examination on only three occasions. On one of these occasions, the court sustained the objection. Another time, the court directed the District Attorney to rephrase the question before the witness had the opportunity to respond. On neither of these occasions did defense counsel request a curative instruction nor otherwise express any dissatisfaction with the adequacy of the court's ruling. Consequently, these two objections were not preserved for appellate review (CPL 470.05, subd. 2). It was only during the cross-examination of defendant's mother, Lydia Dawson, that defense counsel's objection was overruled and the District Attorney was permitted to proceed with his line of questioning. It is this colloquy which we now have occasion to review:

"Q. Did you yourself ever go to the Grand Jury of the County of Monroe and tell them the story you told us?

"DEFENSE COUNSEL: Objection.

"A. I don't know anything about the Grand Jury.

"THE COURT: Just a minute.

"DEFENSE COUNSEL: Objection, Your Honor. There is no legal responsibility even for the defendant or for his mother to attend the grand jury proceedings. * * * "DISTRICT ATTORNEY: I am not asking about legal responsibilities, all I am asking (is) if she did go to the grand jury.

"THE COURT: Overruled.

"Q. You may answer.

"A. This is the first time I seen the grand jury. I don't know anything about the grand jury.

"Q. Did you ever go to the police and tell them this story that you told us about your son's activities on April 15, 1975?

"A. I never talked to anybody about the thing.

"Q. So today was the first time you really told your story?

"A. I never got involved with the police or anything".

Before considering the merits of defendant's specific contentions, we deem it necessary to make some preliminary observations concerning the propriety of this type of questioning in view of the apparent conflict on the issue that exists among the Appellate Divisions. The Second Department, for example, consistently has taken the position that it is error to permit the District Attorney to question a defense witness concerning his prior silence (People v. Butler, 67 A.D.2d 950, 413 N.Y.S.2d 219; People v. Altman, 63 A.D.2d 684, 404 N.Y.S.2d 663; People v. Cox, 61 A.D.2d 1035, 403 N.Y.S.2d 108; People v. Lindsay, 61 A.D.2d 992, 402 N.Y.S.2d 435; People v. Wilson, 60 A.D.2d 920, 401 N.Y.S.2d 576; People v. Smoot, 59 A.D.2d 898, 399 N.Y.S.2d 133; People v. Mims, 59 A.D.2d 769, 398 N.Y.S.2d 721; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679), particularly where the questioning is not followed by appropriate limiting instructions to the jury (People v. Clark, 64 A.D.2d 669, 407 N.Y.S.2d 236). The rationale underlying this position has been stated as follows: "The law is clear that the prosecution may not comment upon the post-arrest silence of a defendant and that a defendant has no obligation, when in custody to tell either the police or the District Attorney that he has an alibi or other exculpatory defense. * * * Likewise, an alibi witness has no obligation to come forward and contact the police or the District Attorney; such silence by an alibi witness may not be used as a means of discrediting the witness, either upon cross-examination or during the People's summation" (People v. Smoot, supra, 59 A.D.2d at p. 899, 399 N.Y.S.2d at p. 135). The First Department, on the other hand, has developed what might be termed a compromise position, holding that an alibi witness' prior silence may be used for impeachment purposes, provided that the District Attorney does not suggest through his questioning that the witness is unworthy of belief because he breached a supposed civic duty to come forward (People v. Burgos, 69 A.D.2d 783, 415 N.Y.S.2d 219; People v. Colarco, 68 A.D.2d 430, 417 N.Y.S.2d 681; People v. Maschi, 65 A.D.2d 405, 411 N.Y.S.2d 298, revd. on other grounds 49 N.Y.2d 784, 426 N.Y.S.2d 727, 403 N.E.2d 449; People v. Brown, 62 A.D.2d 715, 405 N.Y.S.2d 691, affd. on other grounds 48 N.Y.2d 921, 425 N.Y.S.2d 54, 401 N.E.2d 177; but see People v. Nolasco, 70 A.D.2d 549; People v. Milano, 59 A.D.2d 852, 399 N.Y.S.2d 226). A similar approach has been adopted in the Fourth Department (People v. Knox, 71 A.D.2d 41, 421 N.Y.S.2d 992; People v. Keller, 67 A.D.2d 153, 415 N.Y.S.2d 529).

We note at the outset that we agree in principle with the general proposition, advanced in many of the Appellate Division decisions, that, absent a specific legislative directive, a citizen ordinarily has no legal obligation to volunteer exculpatory information to law enforcement authorities. 1 Indeed, even if the existence of such an obligation were compatible with our system of government, it could not form the basis of a meaningful rule of law, since the difficulties involved in enforcing the duty could prove to be insurmountable (cf. United States v. New York Tel. Co., 434 U.S. 159,...

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