People v. Johnson

• Decision Date: 02 July 1970
• Citation: 313 N.Y.S.2d 728,27 N.Y.2d 119,261 N.E.2d 644
• Parties: , 261 N.E.2d 644 The PEOPLE of the State of New York, Appellant, v. Lee I. JOHNSON, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 728

313 N.Y.S.2d 728

27 N.Y.2d 119, 261 N.E.2d 644

The PEOPLE of the State of New York, Appellant, v. Lee I. JOHNSON, Respondent.

Court of Appeals of New York.

July 2, 1970.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel) for appellant.

Matthew Muraskin and James J. McDonough, Mineola, for respondent.

BERGAN, Judge.

Proof in support of defendant's conviction for burglary, second degree, is adequate. He was discovered by the police at 2:30 o'clock in the morning with two other men inside a country club building which had been forcibly broken into. Defendant was carrying a crowbar and a screwdriver when observed by the police who had been tipped to an intended burglary and were waiting in the building.

The proof supports, as well, the related crimes of possession of burglar's tools and of a loaded firearm; and the sentences imposed for these offenses ran concurrently with the sentence for burglary.

Defendant made a statement to the police which was not received in evidence because of a failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. No proper objection or motion for inquiry was made on the trial addressed to the question of duress in connection with the statement. Defendant took the stand at the trial and, denying any intent to commit burglary and that he was carrying burglar's tools when arrested, testified he was in the premises on the invitation of one of his companions to play cards.

Portions of his statement to police were incorporated into questions asked by the prosecutor on cross-examination, and to the extent such statements were incriminating, were denied by defendant. The court allowed these questions under careful instructions to the jury that any inconsistency between the defendant's testimony and the portions of the statement referred to could be considered only on 'the credibility or believability of what he is testifying to now' and not as 'a part of the case'.

The Appellate Division regarded the allowance of these questions as improper in view of the inadmissible nature of the statement itself. It reversed on the law alone and ordered a new trial. The People appeal.

Where a defendant, taking the stand, testifies to facts denying participation in a crime, a statement inconsistent with his testimony is admissible on the issue of credibility, even though the statement itself is not received as an admission to the crime (Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503; People v. Hudson, 26 N.Y.2d 781, 309 N.Y.S.2d 213, 257 N.E.2d 658; People v. Harris, 25 N.Y.2d 175, 303 N.Y.S.2d 71, 250 N.E.2d 349; People v. Kulis, 18 N.Y.2d 318, 274 N.Y.S.2d 873, 221 N.E.2d 541; cf. People v. Wellington, 26 N.Y.2d 891, 309 N.Y.S.2d 935, 258 N.E.2d 217).

The theory of these decisions is that when an accused undertakes by his own sworn testimony to establish facts which would negative or refute his participation in the crime charged, the protection against the use of statements given to police without due regard to constitutional privileges should not close off inquiry.

In effect, the constitutional privilege ought to shield a man against unfairness by the State in using such a statement in his prosecution, but should not immunize him from inquiry when he affirmatively proffers testimony as part of a strategy in contested litigation in which truth is a critical ingredient.

Such protection, as Justice Frankfurter noted in Walder v. United States, Supra, 347 U.S., pp. 64--65, 74 S.Ct., p. 356, used as 'shield against contradiction of his untruths' would be a 'perversion' of the Fourth Amendment. The wisdom of this distinction in admissibility has been debated at the bar but the reasons which underpin it remain valid and since People v. Kulis, 18 N.Y.2d 318, 274 N.Y.S.2d 873, 221 N.E.2d 541, Supra this court has followed it. The Supreme Court has not overruled Walder.

An additional ground is suggested by defendant to sustain the Appellate Division's order not examined in that court's memorandum. This is that the questions by the prosecutor referring to the statement made to the police were addressed to matters 'not covered by (defendant's) direct testimony, in order to lay a foundation for the tainted evidence on rebuttal' (People v. Miles, 23 N.Y.2d 527, 543, 297 N.Y.S.2d 913, 925, 245 N.E.2d 688, 700; derived from Walder, supra, 347 U.S., pp. 64--66, 74 S.Ct. 354).

In Miles the cross-examination related to a statement made by codefendant Howard concerning a period not included within that witness' direct testimony.

This was regarded as inadmissible as coming within the exception stated in Walder, but the point was not decisive in Miles since the error was regarded as harmless 23 N.Y.2d...