People v. Savage

• Decision Date: 03 July 1980
• Citation: 409 N.E.2d 858,50 N.Y.2d 673,431 N.Y.S.2d 382
• Parties: , 409 N.E.2d 858 The PEOPLE of the State of New York, Respondent, v. James SAVAGE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 382

431 N.Y.S.2d 382

50 N.Y.2d 673, 409 N.E.2d 858

The PEOPLE of the State of New York, Respondent, v. James SAVAGE, Appellant.

Court of Appeals of New York.

July 3, 1980.

Bennett M. Lincoff and William E. Hellerstein, New York City, for appellant

Mario Merola, Dist. Atty. (Laurence J. Lebowitz and Billie Manning, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

The question on this appeal is whether a defendant who, having been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and having elected to waive his right to silence, proceeds to narrate the essential facts of his involvement in the crime, may be cross-examined about his failure to inform the police at that time of exculpatory circumstances to which he later testifies at trial. We hold that, under the circumstances here, neither due process nor the privilege against self incrimination prohibits this manner of impeachment.

Defendant James Savage appeals from an order of the Appellate Division, 67 A.D.2d 562, 415 N.Y.S.2d 845, which affirmed a judgment entered upon a jury verdict convicting him of first degree assault. The conviction flowed from his shooting of one Robert Johnson in the course of an altercation outside the Central Bar on East 161st Street in The Bronx. At the trial several witnesses for the People, including Johnson, testified that Savage had drawn his gun and purposely shot Johnson. One of the prosecution's witnesses, the arresting officer, testified that several weeks after the crime had been committed, when he apprehended the defendant, immediately after the administration of the Miranda warnings, the defendant volunteered, first, "I'm glad I'm caught-I'm tired" and then went on to describe his role in the shooting, confessing that he had shot Johnson with a gun he possessed during an altercation outside the bar. Significantly, to the prosecutor's additional inquiry, made without objection, as to whether the defendant had "indicate(d) anything further to you apart from what you've just started", the officer's response was "no".

Thereafter, during his own case, the defendant, choosing to take the stand, testified that he indeed had shot Johnson and then added by way of justification that the shooting had occurred during an altercation precipitated when Johnson attempted to rob him. He also told the jury that the actual discharge of the gun was inadvertent. On cross-examination the prosecutor, in an obvious attempt to establish that the exculpatory material was a recent fabrication, essayed, and over objection was permitted, to put a short series of questions at the heart of which was the one that reads: "Now, when you saw Detective Creegan (following the arrest), before you saw your lawyer, when you saw the police officer, did you tell the police officer that (Johnson) attempted to rob you?" The defendant's response was that he had done so. As might be expected, during the course of his summation, the District Attorney, in arguing that the detective's version of the post-Miranda statement was more credible, made the point that, if it was, the fact that the defendant had omitted any mention of the exculpatory circumstance at the time of his original statement militated against its truth. In our view, the prosecutor's queries to the defendant were proper and, therefore, so were the comments made in closing argument.

It is by now well settled that the use of his postarrest silence against a defendant even for impeachment purposes may violate due process and the privilege against self incrimination. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, fundamental fairness forebade a prosecutor to attempt to draw an adverse inference from the fact of a defendant's silence at the time of arrest because the defendant's receipt of the Miranda warnings had, in effect, conveyed the State's assurance that, if he elected to remain silent, his silence would not be used against him (id., at pp. 617, 619, 96 S.Ct. at pp. 2244, 2245; see Jenkins v. Anderson, 447 U.S. ---, ---, 100 S.Ct. 2124, 2130-31, 65 L.Ed.2d 86). Having been told he need not speak about the facts of the case at that time, the State cannot renege on its promise and use the silence to impeach him when he subsequently testifies at trial. Moreover, viewed against the obvious prejudice, the use of the silence a defendant maintained at a time when he was privileged to say nothing at all was recognized to be of dubious probative value because it cannot be determined whether, in fact, it was the existence of the privilege that induced the silence. (Doyle v. Ohio, supra, 426 U.S. at pp. 617, 618, 96 S.Ct. at 2244, 2245; see People v. Rutigliano, 261 N.Y. 103, 107, 184 N.E. 689.)

However, as the Supreme Court has even more recently made clear, a defendant, who, in the face of Miranda warnings, decides not to exercise his privilege but instead chooses to speak to the police about the charges against him, enjoys no due process protection from such an inquiry (see Jenkins v. Anderson, supra, at p. ---, 100 S.Ct. at p. 2130-2131; Anderson v. Charles, 447 U.S. ---, 100 S.Ct. 2180, 65 L.Ed.2d ---). Rather, whether he may be impeached by the use of telling omissions from the tale he told is to be determined under State evidentiary law (Jenkins v. Anderson, supra, at p. ---, 100 S.Ct. at p. 2130-2131; cf. People v. Dawson, 50 N.Y.2d 311, 321-322, 428 N.Y.S.2d 914, 406 N.E.2d 771).

Against this backdrop, the case before us emerges as fundamentally different from Doyle (supra). For, the simple and undeniable fact is that the defendant here did not remain silent. In stark contrast to the circumstances in Doyle, where the defendants " 'did not speak about the facts of the case at the time' " when the silence there occurred (426 U.S. at p. 619, 96 S.Ct. at 2245, as reiterated in Jenkins v. Anderson, supra, at p. ---, 100 S.Ct. at p. 2125-2127), the most cursory examination of the record reveals that Savage, for all practical purposes, did just the opposite.

As already indicated, the direct testimony of the arresting officer established that Savage, without any overbearing of his will, responded to the opportunity to inform the officer of his involvement in the crime. Moreover, this he did in no conclusory form. A breakdown of his statement proves that he specifically stated that he possessed a pistol, that he used the weapon to shoot Robert Johnson, that the shooting occurred in the course of a dispute between him and Johnson, that the shooting took place in front of a bar and that the bar was located on 161st Street. Not only were these revelations incriminatory, they expressly incorporated essential elements of the crime with which he was to be charged. But excluded from all this was the crucial exculpatory circumstance to which the defendant later was to testify-that he had shot his victim unintentionally while warding off the latter's attempt to rob him.

Given defendant's voluntarily rendered narrative of his part in the shooting, this omission speaks more eloquently than words. For, what was omitted is far from an inconsequential detail or a collateral matter, but a fact of such overwhelming significance that its absence from the narrative was at least as calculated to distort his recitation as a most affirmative falsehood. It put an entirely different cast on the event.

It is an elementary rule of evidence, and of common sense, in our State and almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment (3A Wigmore, Evidence (Chadbourn rev. ed.) § 1042; Richardson, Evidence (10th ed.-Prince), § 222). This rule is firmly imbedded in behavioral expectations (cf. People v. Dawson, supra ).

Therefore, that the defendant decided not to offer the mitigating explanation for his conduct in amelioration of his role in the shooting he undertook to describe could challenge credulity. Having on his own ventured to communicate devastatingly incriminating information, his failure to then so much as mention the excuse he was later to put forth is well-nigh inexplicable except as a resent fabrication. Measured by the way in which almost any normal person would perceive it, the strongest considerations of self-interest would be expected to keep him from containing it within himself. In short, his conduct ran counter to human experience. And further confirmation of its significance comes from the setting in which the omission occurred: that moment of psychological truth when a defendant chooses to inculpate himself, "that moment (when) he will tell all, and tell it truly" (3 Wigmore, Evidence (Chadbourn rev. ed.), § 851, p. 524). ¹ Thus, the exclusion, however it might be weighed by the triers of the facts, was, to say the least, extraordinarily probative in enabling them to evaluate the reliability of the explanation when it surfaced for the first time at trial.

Moreover, reference to the omission, because of its negative nature, could not serve substantively as evidence in chief to prove the commission of the crime. It did not lend itself to employment, whether by way of evidence or argument, as anything more than a device for impeachment (compare United States v. Agee, 3rd Cir., 597 F.2d 350, 354, 357, cert. den. 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 with id., at pp. 365-368 (dissenting opn.)). ²

Such an analysis fully grants the respect to be accorded a defendant's constitutional rights, whether in the exercise of his privilege against self incrimination or to the process that is his due. But, doing so, it also recognizes that the intent behind the privilege against self incrimination, exemplified by the supportive Miranda procedures it has spawned, is not to induce silence but only to insure that the choice to speak is free and...