People v. Reed

• Decision Date: 06 July 1976
• Citation: 40 N.Y.2d 204,352 N.E.2d 558,386 N.Y.S.2d 371
• Parties: , 352 N.E.2d 558 The PEOPLE of the State of New York, Respondent, v. Mary REED, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 371

386 N.Y.S.2d 371

40 N.Y.2d 204, 352 N.E.2d 558

The PEOPLE of the State of New York, Respondent, v. Mary REED, Appellant.

Court of Appeals of New York.

July 6, 1976.

Robert J. McGoey, for appellant.

Carl A. Vergari, Dist. Atty. (James M. Rose, White Plains, of counsel), for respondent.

COOKE, Judge.

In the early morning hours of January 8, 1972, John Banks was found dead in the Cloud Nine Bar, a single bullet wound in his chest. The angle of the bullet was slightly downward. A blood alcohol reading of .29 indicated that the deceased had been highly intoxicated. Banks' body had been found a few feet from the serving bar and from his pocket the police recovered a straight razor wrapped in dollar bills. There was, however, disagreement between two of the officers who testified as to whether the razor had been found in Banks' pants pocket or in that of his jacket.

The testimony provided a description of the Cloud Nine as having limited exits, locked doors and a guard dog making exit by any other than the front door difficult, if not impossible. A .25 caliber pistol was found in the backyard, approximately 15 feet from the rear of the premises, the only footprints in that vicinity being those of the officer who recovered the weapon. Once found, the pistol was carried, suspended on a pen, by the officer to his captain, the latter of whom in removing the ammunition, took no care to preserve possible fingerprints.

Were it not for the testimony of the barmaid on duty, Claretta Mitchell Booker, there would have been no evidence connecting Mary Reed with the shooting and, in fact, no evidence connecting her with the premises in which the shooting occurred except for a pocketbook, the contents of which included a rent receipt in her name which was found upon a table top in the bar's kitchen.

Claretta Mitchell Booker, when called as a witness by the People, described the events at the Cloud Nine Bar on the evening in question. She testified that at 9 o'clock she came on duty and that sometime thereafter Banks entered. Later, Banks who had seated himself near the middle of the serving bar moved closer to appellant, seated at the far end. The witness could hear Banks 'cussing' and subsequently overheard part of a conversation between Banks and appellant where Banks said, 'I will give you my own mess and you won't hurt me.' To that appellant responded that she was not bothering Banks. The witness testified that she suggested appellant go downstairs where Banks would not bother her, and, after finishing her beer, appellant got up and, taking her belongings, started to walk to the rear of the premises, away from the front door, out of the witness' view. The deceased also got up, razor in hand, and followed appellant. Appellant was heard to say, 'Don't cut me'. Banks took another step toward appellant and the witness heard a shot. Banks stepped back against the serving bar, razor still in hand, blood coming from his mouth. After falling to the floor, the razor remained beside him, still opened. The witness testified that after the shooting she saw the point of the gun in Mary Reed's hand and that she and another barmaid, Evelyn Crawford, placed their hands upon those of Mary Reed, the latter saying, 'He was going to cut me'. After the incident, Mary Reed left the Cloud Nine by the front door.

Apparently failing to give as detailed a description of what occurred as she had in a previous written statement, the prosecution requested that the witness be permitted to refresh her recollection by using such statement. Also, during the course of her testimony and for the reason that her trial testimony varied from that of the statement, the prosecutor requested that the witness be declared hostile so that leading questions could be asked. Both requests were granted. By the use of leading questions, the jury learned that the witness in her statement had described Mary's first words after the shooting and after the witness took hold of her hand as 'Turn me loose or I will shoot.' Also, by way of leading questions, the witness was asked if she had told one of the investigating officers on the night of the shooting that she 'suddenly heard a shot' and 'saw Banks fall backward off the stool.' To this question the witness' response was a definitive no.

While Claretta Mitchell Booker's testimony implicated Mary Reed, it was also exculpatory for it provided a description of circumstances constituting a defense of justification, namely that Mary Reed, unable to escape Banks who was advancing and brandishing a razor, protected herself by firing a fatal shot in self-defense (Penal Law, § 35.15, subd. 2, par. (a)).

By jury verdict, Mary Reed was convicted of the crimes of manslaughter in the first degree and possession of a weapon, dangerous instrument and appliance as a felony. On appeal, in support of the conviction, the People argue that the physical evidence presented contradicted the barmaid's testimonial evidence as to the manner of death and that, while their witness was credible when she testified that Mary Reed shot Banks, her testimony as to the manner in which the shooting occurred (e.g., that Banks brandished a razor) was contradicted by the physical evidence (e.g., that the razor was found on Banks' person) and thus their witness was not to be believed.

There are certain exceptions to the rule that a party cannot ordinarily impeach the credibility of his own witness. In a criminal proceeding, when a witness gives material testimony which tends to disprove the position of the party who called said witness, such party may impeach that witness by proof of a prior contradictory statement (CPL 60.35, subd. 1; cf. People v. Fitzpatrick, 40 N.Y.2d 44, 386 N.Y.S.2d 28, 351 N.E.2d 675). Such statement may also be used for the purpose of refreshing recollection where the witness' trial testimony, though disappointing or unhelpful, falls short of 'disproving' the party's position, so long as its contents are not disclosed to the trier of the facts (CPL 60.35, subd. 3).

Although a party, to a certain extent, vouches for the credibility of a witness he or she puts on the stand, in civil cases, at least, it has been held that such party has the right to claim a witness mistaken and to contradict his or her witness, not for the purpose of impeachment, but to prove a material fact (Quick v. American Can Co., 205 N.Y. 330, 334, 98 N.E. 480, 481). While the...