People v. Rumph

• Decision Date: 29 April 1985
• Citation: People v. Rumph, 488 N.Y.S.2d 998, 128 Misc.2d 438 (N.Y. Sup. Ct. 1985)
• Parties: PEOPLE of the State of New York v. John RUMPH.
• Court: New York Supreme Court

Page 998

488 N.Y.S.2d 998

128 Misc.2d 438

PEOPLE of the State of New York v.John RUMPH.

Supreme Court, Kings County Criminal Term, Part 28.

April 29, 1985.

Harold Gruber, Brooklyn, for defendant.

Elizabeth Holtzman, Dist. Atty., Kings County by Timothy Murray, Asst. Dist. Atty., Brooklyn, for the People.

CORNELIUS J. O'BRIEN, Acting Justice.

The defendant was found guilty after a jury trial of the crime of robbery in the first degree.During the trial the prosecutor made an application in the jury's presence asking that the defendant be compelled to exhibit his knee in order for the jury to observe alleged marks and discolorations as testified to by the People's chief witness, the victim of the crime.The witness, a paramedic who had examined the perpetrator of the crime immediately before the robbery, was on the stand at the time.Defendant's attorney immediately objected and moved for a mistrial, claiming a violation of the defendant's rights under the Fifth Amendment.

The court sustained defense counsel's objection and declined to permit the showing of the knee, but denied the application for a mistrial.The case was submitted to the jury with no comment from the court on the defendant's refusal to exhibit his knee.The prosecutor was instructed not to make any reference to it in summation and did not do so.The jury came back with a guilty verdict after approximately an hour and a half's deliberation.Obviously the jury inferred that the defendant's refusal to show his knee indicated that it was in fact marked and discolored and that the defendant had been correctly identified as the robber.

Raised in this trial were two issues which would appear to be of first impression in New York:

(1) Absent a pretrial order for discovery, may a court grant a prosecutor's application during trial that a defendant exhibit to the jury a portion of his body normally hidden from view?

(2) May the defendant's refusal to exhibit such a portion of his body be brought to the attention of the jury, thereby allowing an unfavorable inference to be drawn against him?

The Facts

The defendant was arrested on December 2, 1983, as he was exiting the office of a Brooklyn physician, by police officers on a stake-out who were part of a team investigating a series of knife-point robberies of physicians and dentists in Kings and New York Counties.After being viewed in a lineup by the victims of seven or eight robberies that occurred in the 75th Precinct in Brooklyn, he was identified by three of those victims.He was indicted for these three robberies.After a motion for a severance was granted he was tried here for one of the robberies which occurred on October 31, 1983.¹

The complaining witness, George Spohr, a physician's assistant, testified that at approximately 6:00 p.m. on October 31, 1983, he was working in the office of Dr. Alan Cohenat 1052 Liberty Avenue in Kings County.The defendant, who claimed he had injured one of his knees on his job that day, came in to be examined for treatment and x-rays.

After Mr. Spohr interviewed the defendant and examined his knee and as he was leading him to the x-ray room, the defendant suddenly grabbed Mr. Spohr by the back of his hair, made him turn around slowly and proceeded to rob him at knife-point.He then fled the premises.

The witness described the left knee of the person who had robbed him as having a discolored area of "about two or three inches square" that appeared to be the result of an old injury.

The defendant did not testify.The only witness he called was a police officer who testified that when he arrived at the scene shortly after the incident, Mr. Spohr was able to give only a sketchy description of the perpetrator because everything happened so quickly.A police report containing the description was introduced as a defense exhibit.

ISSUE ONE

ABSENT A PRETRIAL ORDER FOR DISCOVERY, MAY A COURT GRANT A PROSECUTOR'S APPLICATION DURING TRIAL THAT A DEFENDANT EXHIBIT TO THE JURY A PORTION OF HIS BODY NORMALLY HIDDEN FROM VIEW?

The law in other jurisdictions may be otherwise (see, e.g., 3 ALR 4th, 374-449, 8 Wigmore on Evidence, [3d ed.] § 2265), and there is dicta in a lower court case that supports the prosecutor's application (People v. Strauss, 174 Misc. 881, 22 N.Y.S.2d 155.However, even as far back as 1894 in People v. Gardner, 144 N.Y. 119, 38 N.E. 1003), the New York Court of Appeals suggested that this type of evidence should be obtained from a defendant before trial."A prisoner's person may be examined for marks and bruises, and then they may be proved on his trial to establish his guilt"(supra, at p. 128, 38 N.E. 1003;emphasis added).

In Gardner, supra, 144 N.Y. 119, 38 N.E. 1003, the defendant, over objection by counsel, was compelled to stand up in the courtroom to be identified as a witness.Pointing out that the history of the Fifth Amendment was to prohibit the compulsory oral examination of witnesses either before or upon trial, the Court of Appeals, after stating that it was necessary that the defendant be identified as the person named in the indictment and charged with the crime, said:

"His mere standing up did not identify him with the alleged crime, and did not disclose any act connected with the crime.There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence of his guilt."(People v. Gardner, supra144 N.Y. at p. 127, 38 N.E. 1003).

As justification for his request that the defendant be compelled to exhibit his knee to the jury, the prosecutor cited People v. Smith, 86 A.D.2d 251, 450 N.Y.S.2d 57.In Smith, at the prosecutor's request, the court directed the defendant to exhibit his voice to the jury for comparison with a voice on a tape recording made at the time of a drug sale.The Third Department held that a person's voice is merely an identifying physical characteristic and compelling him to speak for the purpose of physical identification was not violative of the Fifth Amendment privilege against self-incrimination.There was also no violation of the defendant's Fourth Amendment rights according to Smith, because his person was lawfully seized, and under the holding of United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, "seizure of a voice exemplar '[did] not involve the "severe, though brief, intrusion upon cherished personal security",' or any 'intrusion into the body' ..."(supra, at p. 253, 450 N.Y.S.2d 57).

The Third Department held further that there was no denial of procedural due process because the defendant failed to identify any valid liberty or property interest that was endangered because he was forced to exhibit his voice to the jury.This being so, he was not entitled to notice and a hearing (People v. Smith, supra, 86 A.D.2d 251, 253, 450 N.Y.S.2d 57)."If the right to 'seize'the defendant's person had not already been established or if the 'seizure' of the evidence sought involved an invasion of the defendant's personal dignity or intrusion into his body, procedural due process would have required notice and a hearing"(People v. Smith, supra, fn. p. 254, 450 N.Y.S.2d 57).

The Third Department in Smith declined to follow People v. Giglio, 74 A.D.2d 348, 428 N.Y.S.2d 27, "to the extent that Giglio stands for the proposition that a defendant is constitutionally entitled to prior notice, formal application, and a hearing before he may be compelled to exhibit his voice to a criminal trial jury"(People v. Smith, supra, 86 A.D.2d 251, 252, 450 N.Y.S.2d 57).

People v. Giglio, supra, was an appeal from a contempt conviction resulting from the defendant's refusal to obey the lower court's order directing him to provide voice exemplars during a prior bribery trial.In reversing, Justice Hopkins, writing for the Second Department, held that the defendant was denied due process when he was compelled to submit to the taking of the voice exemplar during the trial."No prior notice of the prosecution's intention to apply for that relief was given to the defendant; the necessity for the relief was not established on any papers served on the defendant; and he was not afforded the opportunity to controvert the grounds for the application"(People v. Giglio, supra, 74 A.D.2d at p. 355, 428 N.Y.S.2d 27).Justice Hopkins also pointed out that although the provisions of Article 240 of the Criminal Procedure Law did not go into effect until after the trial in Giglio, those provisions "reflect the policy of our system of criminal administration that the application by the prosecution for voice exemplars must be made prior to trial on papers served on the defendant subject to constitutional limitations"(People v. Giglio, supra, 74 A.D.2d 348, 356, 428 N.Y.S.2d 27).

The Third Department decided People v. Smith, supra, on April 22, 1982.On July 1, 1982the Court of Appeals came down with People v. Moselle, et al., 57 N.Y.2d 97, 454 N.Y.S.2d 292, 439 N.E.2d 1235.In Moselle, the court held that in the absence of a defendant's consent thereto, blood samples taken without a court order are inadmissible in prosecutions under the Vehicle and Traffic Law and the Penal Law.After carefully pointing out that the decision was premised on statutory and nonconstitutional legal principles supra, at p. 104, 454 N.Y.S.2d 292, 439 N.E.2d 1235, the Court of Appeals stated that by enacting CPL 240.40the Legislature has "pre-empted authorization for the administration of blood tests for use in * * * criminal prosecutions"supra, at p. 109, 454 N.Y.S.2d 292, 439 N.E.2d 1235.Since the authorization providing for a defendant's submission to a physical or medical inspection of his body also comes under CPL 240.40(2), it would seem to be clear that unless the prosecution moves pretrial (CPL 240.90[1] ), there may not be such an inspection in the course of the trial and certainly not in the presence of the jury.

Based on procedural due process (People v....