People v. Gilmore

• Decision Date: 18 August 1980
• Citation: 430 N.Y.S.2d 854,76 A.D.2d 548
• Parties: The PEOPLE, etc., Respondent, v. Kenneth GILMORE, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 854

430 N.Y.S.2d 854

76 A.D.2d 548

The PEOPLE, etc., Respondent, v. Kenneth GILMORE, Jr., Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 18, 1980.

Martin B. Adelman, New York City, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Michael R. Gore, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and LAZER, GIBBONS and RABIN, JJ.

GIBBONS, Justice.

The question presented for resolution on this appeal pertains to the propriety of the prosecutor's questions on cross-examination of the defendant and his comments on summation, concerning the defendant's silence both prior to his arrest, and at the time of his arrest in a foreign jurisdiction, where, on his direct examination he had testified that the homicide and the assault were committed by another person present in the automobile where the shooting took place.

I

In the early morning hours of June 6, 1976, Ted Gross was shot in the head and killed while sitting in the driver's seat of his Citroen automobile. A friend, Melita Sneed, who was seated in the front passenger seat, was also shot, but survived her injuries. Kenneth Gilmore, Jr., the defendant, was seated behind Gross and one George Murdock was seated in the position behind Ms. Sneed. Medical testimony indicated that the shots were fired from within the automobile.

From the evidence adduced at trial, it was clear that the perpetrator of the alleged crimes was either the defendant, Gilmore, or George Murdock. Shortly after the crime was committed, Gilmore and Murdock separated. Gilmore testified that after he left Murdock, he took his wife to a christening. In the course of their investigation, New York police officers came to Gilmore's sister's house looking for him. Gilmore's brother was there, and believing that he was the defendant, the police held a shotgun to his face. The defendant's sister later told him about the incident. Upon learning the circumstances of the police efforts to locate him, Gilmore contacted his uncle in South Carolina, who told him about a friend of his, named Sergeant Gathers, a local police officer, who would be "the best one" to surrender to.

Defendant went to South Carolina by bus. Once there, he surrendered to Sergeant Gathers, was then taken into custody, and was lodged in the local jail. Asked if he desired to fight extradition, ^* Gilmore declined to do so and said that he wanted to return to New York. He remained incarcerated in Charleston County until such time as a New York detective went down to South Carolina and took him back to New York.

During the trial, the District Attorney asked Gilmore if he had told any police officers in the bus station (from which he left for South Carolina) that he saw someone else kill Ted Gross. Then he asked if defendant told his uncle's friend, Sergeant Gathers, in South Carolina that he wanted to give himself up for shooting Ted Gross. There was no objection to either question. To both questions, defendant replied in the negative. During summation, the prosecutor urged the jury to consider the evidence of Gilmore's flight to South Carolina after the killing, noting that while defendant testified that he surrendered in South Carolina, he never told anybody that Murdock did the shooting.

II

The court is faced with two incidents where the prosecutor made use of the defendant's prior silence to impeach his credibility, both while Gilmore was on the stand, and again during summation. Defendant claims that these questions and comments by the Assistant District Attorney require reversal. While we disagree with defendant's claim of impropriety in questioning him regarding his silence in the bus terminal, we do agree that the questions and comment with regard to his silence while in the custody of Sergeant Gathers were improper and prejudicial, even though no objections were raised at the trial.

III

It has long been 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). Only recently, however, has case law come to grips with the question of whether a prosecutor may properly use a defendant's silence against him for purposes of impeachment during cross-examination. The cases decided thus far make distinctions as to the legal effect depending on the time when a defendant chooses to remain silent. The differing legal consequences flowing from such silence require a consideration of three distinct intervals: (1) the pre-arrest period, meaning that period of time after a crime has been committed but before the police have made any affirmative contact with the defendant; (2) the post-arrest period, referring to that time after Miranda warnings have been given (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); and (3) the "time of arrest", which refers to the amorphous block of time after affirmative contact has been made between police and suspect, but prior to the communication of constitutional rights.

In Doyle v. Ohio (426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91), the Supreme Court of the United States held that where a defendant, while in custody, had been provided with the warnings mandated by Miranda and was thereby 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 his detriment even for the limited purpose of impeachment. Thus, impeachment may not be accomplished by reference to such post-arrest silence.

Carrying forward the reasoning from Doyle, the Court of Appeals has recently held in People v. Conyers (49 N.Y.2d 174, 424 N.Y.S.2d 402, 400 N.E.2d 342) that, although no Miranda admonitions are administered, the use of an accused's silence at the time of arrest is likewise violative of due process. The court stated (pp. 179-180, 424 N.Y.S.2d p. 406, 400 N.E.2d at p. 346):

"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, 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." (Emphasis added.)

In the area of pre-arrest silence, however, a different rationale has been applied. While...