People v. Scarola

• Decision Date: 07 June 1988
• Citation: 530 N.Y.S.2d 83,71 N.Y.2d 769,525 N.E.2d 728
• Parties: , 525 N.E.2d 728, 57 USLW 2042 The PEOPLE of the State of New York, Respondent, v. Michael SCAROLA, Appellant. The PEOPLE of the State of New York, Respondent, v. Henry MERCHANT, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 83

530 N.Y.S.2d 83

71 N.Y.2d 769, 525 N.E.2d 728, 57 USLW 2042

The PEOPLE of the State of New York, Respondent, v. Michael SCAROLA, Appellant.

The PEOPLE of the State of New York, Respondent, v. Henry MERCHANT, Appellant.

Court of Appeals of New York.

June 7, 1988.

Andrew C. Fine and Philip L. Weinstein, New York City, for appellant in the first above-entitled action.

Paul T. Gentile, Dist. Atty. (Lisa M. Rubin and Peter D. Coddington, New York City, of counsel), respondent in the first above-entitled action.

Miriam J. Hibel and Philip L. Weinstein, New York City, for appellant in the second above-entitled action.

Paul T. Gentile, Dist. Atty. (Robert L. Shepherd and Billie Manning, New York City, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

SIMONS, Judge.

The principal issue presented in these unrelated appeals is whether the trial courts erred in refusing to allow defendants to demonstrate their voices to the jury. Inasmuch as the voice exemplars were offered as real or demonstrative evidence, defendants did not have an absolute legal right to admission of the evidence and under the circumstances presented we hold that neither court abused its discretion in refusing to admit it. Accordingly, the orders of the Appellate Division, 126 A.D.2d 994, 510 N.Y.S.2d 405; 131 A.D.2d 982, 516 N.Y.S.2d 567 should be affirmed.

I

Defendant Michael Scarola was indicted for the crimes of robbery in the second degree, attempted rape in the first degree and assault in the second degree arising out of an incident occurring on April 18, 1984 in The Bronx. According to the People's proof at trial, defendant followed Kathy McManus home from work one evening and attacked her in the vestibule of her apartment. Before opening the locked door to the lobby, McManus looked over her shoulder and saw defendant. He immediately placed his hand over her mouth, told her to be quiet and threw her against the wall. When she tried to scream, the defendant punched her in the jaw and said at least twice, "I have a knife. Don't make me have to cut your heart out". He demanded that she give him money. After taking $13, defendant punched McManus in the face again and then ordered her to open the lobby door so that he could take her inside and have intercourse with her. Seeing a friend outside the building McManus screamed for help and defendant fled. The police apprehended defendant a short time later and the victim identified him as her assailant.

The defense was mistaken identity. Although McManus testified on cross-examination that her assailant had no noticeable speech impediment and that she had no trouble understanding any of his statements during the incident, defendant called his sister, and she testified that defendant talks through his nose "like he has a cold all the time" and that she has trouble understanding him when they have an extended conversation. On cross-examination the sister admitted that she had no degree in speech pathology, audiology, or any other medical discipline, and that based on her knowledge defendant would not have any problem saying "short sentences" of "maybe two or three words together", such as "take the money."

Based upon this foundation, defense counsel requested a ruling permitting defendant to take the stand to provide a voice exemplar for the jury establishing that he had a speech impediment. The trial court ruled that defendant could not testify without being subjected to cross-examination, not only about the sound of his voice--to which defendant consented--but also about the events of the incident insofar as they related to his voice and, for credibility purposes, questions concerning his prior convictions. In view of this ruling, defendant chose not to take the stand. The jury convicted him of robbery in the second degree and a unanimous Appellate Division affirmed the judgment of conviction. A Judge of this court granted defendant permission to appeal.

Defendant Henry Merchant was indicted for committing the crimes of robbery in the first degree, grand larceny in the third degree, criminal possession of stolen property in the third degree and criminal possession of a weapon in the fourth degree. According to the People's proof at trial, at 10:45 p.m. on July 18, 1984 defendant accosted Michelle Sherrel with a knife, demanding, "Give me your wallet. I won't hurt you". He asked Sherrel how much money she had in her wallet and when she had difficulty finding her money buried in a change purse at the bottom of her handbag, he told her, "I am going to give you a few minutes to find that wallet. If you don't find that wallet, I'm going to have to do some work on you." Eventually defendant reached into the victim's handbag himself and took the small zippered change purse containing $12 and some change. He then asked what she held in her hand and when she responded that it was a radio he demanded both the radio and the headphones she was wearing. Before leaving, he asked if she lived in the area and then warned, "Don't let me have to come back here and do some work on you." Sherrel went home, reported the incident to the police and defendant was arrested the next morning. She identified him in a lineup conducted at the police station and at trial she testified that there was "no doubt" and "no question" in her mind that defendant was the man who robbed her.

The defense was alibi. Two of defendant's longtime friends testified that he accompanied them to the movies at Whitestone Cinema on the night of the robbery and that all three individuals stayed at the movies until after 11:30 p.m. William Beebe, who was employed as a security guard at the theatre, testified that he remembered that defendant was 1 of 3 individuals who tried to "sneak in" the theatre that night and that when he caught them he gave them free passes to the 10:00 p.m. showing of the movie.

Defendant elected not to testify but he sought permission to take the stand for the limited purpose of giving a voice exemplar. The court denied the application observing that in his opinion there was too great a risk that defendant would be able to fake a speech impediment before the jury.

Defense counsel then attempted to lay a foundation for the voice exemplar evidence. Defendant's father testified that defendant had a speech problem for which he had been undergoing treatment all his life, that defendant's speech at present was a little better than when he began treatment, but that he still talked through his nose. Defendant also called a speech therapist who had treated him for six months in 1983. She testified that defendant could not pronounce certain sounds correctly, that he had stoppages and sound repetitions in his speech similar to a stutterer and that because of his rapid rate of speech defendant often had difficulty correctly pronouncing multisyllabic words. On cross-examination, however, the therapist conceded that defendant could articulate, "I won't hurt you, give me your wallet or I'll do some work on you" without betraying any noticeable speech problem. She also noted that if defendant spoke in short sentences it was possible for him to "camouflage" his speech.

After hearing this testimony, the trial court denied defense counsel's renewed request to permit the voice exemplar evidence, noting that "any such offer would be subject to such mischief as to make it meaningless in the context of this case". The jury convicted Merchant of robbery in the first degree, a unanimous Appellate Division affirmed the judgment and leave to appeal was granted by a Judge of this court.

II

In each case defendant contends that the trial court erred in denying him the opportunity to refute the complainant's identification by demonstrating to the jury that he had a speech impediment. Unquestioned is defendants' right to take the witness stand and testify, thereby waiving the privilege against self-incrimination and subjecting themselves to cross-examination about the incident itself, prior convictions, and prior bad acts ( see, People v. Betts, 70 N.Y.2d 289, 520 N.Y.S.2d 370, 514 N.E.2d 865). That is not what they sought to do, however; they wished to exhibit their voices to the jury. The relevance of the evidence they offered was not in what they would say, but in how they would say it.

Voice exemplar testimony has been accepted as nontestimonial in nature. Thus, the prosecution can require, for example, that a defendant speak in a station house lineup to aid the witnesses identification ( United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d 1149) or provide a voice exemplar to a Grand Jury ( United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 768, 35 L.Ed.2d 67). A defendant can even be compelled to speak at the trial itself without implicating the right against self-incrimination if doing so will aid a witness with an identification ( People v. Smith, 86 A.D.2d 251, 450 N.Y.S.2d 57; see, Annotation, Criminal Defendant in Trial Demonstrations, 3 A.L.R.4th 374, § 12).

Relying on these rulings and the general proposition that one of the essential ingredients of due process of law is reciprocity ( see, Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82), defendants contend that if the State can compel a defendant to provide a voice exemplar to assist the prosecution at trial then the State must also permit a defendant to provide an exemplar during his defense if he or she so elects. Their argument does not withstand analysis. Whether an act is testimonial determines whether the State may compel a person to perform an act without violating his or her 5th Amendment right, but the fact that an exhibition of a physical characteristic is not testimonial in nature does not necessarily require its reception as evidence at trial ( United States v. Esdaille, 769 F.2d 104, 107 (2nd Cir.) cert. denied 474 U.S....