People v. Pollock

• Decision Date: 28 December 1967
• Citation: People v. Pollock, 21 N.Y.2d 206, 287 N.Y.S.2d 49, 234 N.E.2d 223 (N.Y. 1967)
• Parties: , 234 N.E.2d 223 The PEOPLE of the State of New York, Respondent, v. Herbert L. POLLOCK and William Arnold, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 49

287 N.Y.S.2d 49

21 N.Y.2d 206, 234 N.E.2d 223

The PEOPLE of the State of New York, Respondent, v.Herbert L. POLLOCK and William Arnold, Appellants.

Court of Appeals of New York.

Dec. 28, 1967.

Arnold D. Roseman, New York City, for Herbert L. Pollock, appellant.

Robert S. Schneider and Jacob P. Lefkowitz, New York City, for William Arnold, appellant.

Aaron E. Koota, Dist. Atty. (Aaron Nussbaum, Brooklyn, of counsel), for respondent.

VAN VOORHIS, Judge.

The defendants were charged with killing Martin Funk on December 14, 1962, by inflicting fatal wounds upon him with a knife.They confessed to killing Funk during a robbery at Funk's television repair shop.Defendant Pollock made admissions to persons who occupied an apartment with him that he had held up a store and stabbed the victim.He was not quoted as having identified the store or the victim.A Huntley hearing was ordered by the Appellate Division(26 A.D.2d 684, 272 N.Y.S.2d 614), and the trial court found that the confessions were voluntarily made.

Both defendants took the stand at the trial as well as upon the Huntley hearing.Pollock denied that he had participated in any robbery or homicide and denied ever having been at the premises where Funk was killed.Arnold also sought to establish an alibi.Both testified that their confessions were false and had been extracted from them by force.Each, in his confession, involved Earl James as an accomplice.

The conviction of appellants depended upon their confessions to the police, which is conceded by the District Attorney's office and is apparent from an examination of the record.Arnold's statement was that Pollock discussed the robbery beforehand with Earl James and himself, that James was carrying a gun and stood outside the 'furthest' door of the television repair shop, apparently on watch while the robbery by Pollock and Arnold was perpetrated inside.Pollock's confession stated that he went to the television shop with Arnold and James, and that James stood outside while the robbery was committed by Pollock and Arnold.

The chief error asserted in behalf of both appellants Pollock and Arnold consisted in the calling of Earl James to the witness stand by the Assistant District Attorney who, after inquiring his age, address and occupation, asked 'Do you know the defendantHerbert Pollock?'At this point the attorney for James, who was present, made the following statement to the court:

'Mr. Kern: If your Honor please, for the record, I am Michael Kern, with offices at 37 Wall Street.I am an attorney at law.I represent this witness.

'Without any prefatory statement, the contents of which, if I made the statement, are well known to the District Attorney as well as defense counsel, I want to tell the Court that I have advised this witness to decline to answer any questions pertinent to the issues in this case on the ground that any answer that he might make may tend to degrade and incriminate him.'

Following that the court asked James whether he understood what his lawyer had just said, to which James replied in the affirmative, and the court told this witness that he had a right, under the law, to refuse to answer upon the ground that the answer might tend to incriminate him.The witness answered 'Yes, sir.I know him.'The witness' attorney then said that the witness evidently did not understand, whereupon the court explained to him in greater detail that he had the right to refuse to answer any question asked by the prosecution if he believed that it would tend to incriminate him.He was again asked whether he knew the defendant Pollock, to which he refused to reply on the ground that it might incriminate him.He was then asked whether his answer would be the same to any question that might be put to him, to which he replied that he refused to answer on the ground that it might incriminate him.Then the Assistant District Attorney said 'Your witness.'After brief cross-examination by Pollock's trial counsel, in which the witness refused to answer each question on the ground that the answer might tend to incriminate him, the court said: 'Do you refuse to answer any questions pertaining to this alleged event of December 14th?' to which the witness replied 'Yes, sir.'Counsel for both appellants demanded that any previous statement made by James be produced by the prosecutor, but the court overruled this demand on the basis that the witness had not testified to anything of substance.The court then instructed the jury: 'The Court: Mr. Foreman and members of the jury, at this time I am instructing you, you are to disregard this witness' testimony in its entirety.

You are not to speculate as to what might be in the witness' mind, and certainly you are not to speculate as to what answers might be forthcoming were the witness to answer.In other words, you are not to speculate or guess about what this witness might say from the questions that were asked.The questions are not evidence in the case, and the answers--whatever answers he might have made, to the effect that it would tend to incriminate him and degrade him, you are to disregard that entirely.As far as this witness is concerned, disregard his testimony, and by all means, do not let it be prejudicial to either of the defendants on trial.'

Later during the trial, defense counsel moved for a mistrial on the ground that James, whom the confessions of both appellants described as an accomplice, was called to the stand solely in order that the jury might hear him claim his privilege and thereby, in the jurors' minds, incriminate himself and, by inference, incriminate appellants also.Exceptions were duly taken on behalf of each appellant.

The question appears not to be settled in New York, and the Federal decisions regard this as reversible error in some instances but not in others.In the situation with which we are now confronted, a finding of guilt depends upon confessions or admissions against interest by appellants.Each implicates Earl James as a participant in the robbery which resulted in the killing.Earl James was called to the witness stand by the prosecution, knowing that he would testify to nothing material without his invoking his privilege.The People argue that it was necessary for them to put him on the witness stand and ask him to testify concerning this crime in order to be freed from any imputation that his testimony would be adverse to the prosecution.Since he would hardly be expected by the jury to testify against his own interest by supporting the prosecution, that argument loses a good deal of weight.The Assistant District Attorney's position could readily have been safeguarded by a ruling excluding the testimony of Earl James on condition that appellants stipulate that failure to call James was not to be regarded as implying that his testimony would have been adverse to the People's case, or that anything said to the jury to the effect that omission to call James had any evidentiary significance would free the prosecution to tell the jury the reason on account of which he was not called.

Whatever may have been the motive of the Assistant District Attorney in calling James to the witness stand, the result was clearly to implant in the minds of the jurors that the facts stated in appellants' confessions were true, since from refusing to answer questions regarding the robbery upon the ground that his testimony might tend to incriminate him the jury must have concluded that James actually did play the role in these criminal transactions that was assigned to him in Pollock's and Arnold's confessions.This was not a situation where Earl James testified to other facts relating to the criminal charge and where his claim of privilege related to some unimportant or collateral aspect.The voluntariness of these confessions was sharply contested by both, and each denied participation in the event when called as a witness at the trial.It is apparent that this claim of privilege by Earl James was, in its effect, the most incriminating evidence that was introduced a against appellants.

The case of Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724(1964) is almost exactly in point and resulted in a reversal of the conviction.The United States Supreme Court's decision entitled Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278(1963) is distinguished in Fletcher, as it is distinguishable here, in that in Nametthe Supreme Court pointed out that most of the testimony of the witness was not privileged and that an inference of guilt was already well established by the nonprivileged portion of the witness' testimony.The four questions to which the witness claimed privilege were regarded as incidental or collateral by the Supreme Court and were referred to in the Supreme Court's opinion as 'these few lapses' in the context of the entire trial.Reversing in Fletcher, the District of Columbia Court of Appeals pointed out that the claim of privilege by the witness was the principal source of support for the testimony of the Goverment's only other witness, and that the refusals to testify were not incidents in the course of other admissible testimony since the one claiming privilege gave no other testimony.

The Court of Appeals in the Third Circuit likewise reversed the conviction in United States v. Tucker, 267 F.2d 212(1959).There it was held, under the circumstances of that case, that where a witness has been asked a question on a first trial and has asserted his privilege against self incrimination, it is improper on a second trial again to ask the witness the same question when there is no reason to believe that he will answer after refusing to do so at the first trial.The case involved the prosecution of an Army officer on a charge of accepting gratuities with intent to influence his official decisions and actions in connection with the construction of a signal depot....