People v. Smith
| Decision Date | 24 February 2011 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Remy SMITH, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Levitt & Kaizer, New York City (Richard Ware Levitt and Yvonne Shivers of counsel), and The Murphy Firm, Baltimore, Maryland (William H. Murphy, Jr., of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Hilary Hassler of counsel), for respondent.
The order of the Appellate Division should be affirmed.
[920 N.Y.S.2d 286 , 945 N.E.2d 479]
Defendant was convicted, after a jury trial, of two counts of assault in the first degree, and one count each of attempted coercion in the first degree and criminal possession of a weapon in the second degree, in the shooting of a friend during a dispute.
On appeal, defendant challenges, under both state and federal law, the preclusion of an argument she wished to make at summation—namely that it was the victim of the shooting who first produced the gun that resulted in her being shot.* Defendant's challenges fail because to allow the requested summation argument would be to permit defense counsel to call upon the jury to reach conclusions that are “not fairly inferrable from the evidence” ( People v. Ashwal, 39 N.Y.2d 105, 110, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976] ). The privilege of counsel to comment in summation on any matters of fact pertinent to questions that the jury must decide is not absolute. The privilege “can never operate as a license to state to a jury facts not in evidence” ( Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 103, 26 N.E. 1048 [1891] ), or to argue theories for which there is absolutely no evidentiary support.
Here, regardless of whether there was evidentiary support for the argument that the victim was shot during a struggle over the gun, the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim. In particular, the testimony of a police officer, that the victim told him that the gun with which she was shot was “heavier” than a gun he showed her for the purpose of comparison, is irrelevant to the issue whether the defendant or the victim first produced the gun. Moreover, the officer himself clarified the term, saying “[h]eavier, meaning larger,” and a victim's recollection of the size of a gun in no way supports the theory that she first displayed the gun.
Defendant also challenges that part of the jury charge instructing the jury that if it found that the victim was “truthful and accurate in her testimony to you, [then] her testimony without any other eye witness to what happened inside the car, under the law satisfies the proof beyond a reasonable doubt.” Where, as here, a single sentence in a jury charge is challenged by the defendant, we “do not consider the challenged sentence alone and in a vacuum but instead must read the instruction as a whole to determine if it was likely to confuse the jury” ( People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134 [1995] ). Here, although the challenged sentence itself does not accurately convey the principle that a single victim's testimony can on its own prove guilt beyond a reasonable doubt, Supreme Court immediately went on to state that principle correctly. The court charged the jury that if the victim's testimony “after your careful scrutiny does satisfy you beyond a reasonable doubt then her testimony alone can be sufficient to convict without other eye witness testimony” (emphasis added). Moreover, Supreme Court emphasized, in parts of the jury charge immediately before and after the challenged sentence, that the central duty of the jury was to decide whether the charged crimes had been proved beyond a reasonable doubt. In light of the charge as a whole, no reasonable juror would have concluded
[945 N.E.2d 480 , 920 N.Y.S.2d 287]
that if he or she found the victim's testimony credible, then he or she had to find defendant guilty—without assessing whether all of the evidence was sufficient to show beyond a reasonable doubt that defendant was guilty.
By limiting defendant's argument on summation, the trial court impermissibly infringed on defendant's constitutional right to present an argument to the jury which was reasonably supported by the evidence. Further, by misstating the appropriate standard of proof in a portion of the jury charge ( see majority mem. at 788, 920 N.Y.S.2d at 286–87, 945 N.E.2d at 479–80), the trial court unwittingly fostered a guilty verdict in accordance with the victim's testimony. Because these errors, individually and cumulatively, deprived defendant of a fair trial, I respectfully dissent.
On July 14, 2007, defendant and the victim attended the birthday party of a mutual friend at a restaurant on 14th Street and Ninth Avenue in Manhattan. As the party ended, defendant noticed that $3,000 was missing from her pocketbook. Because the victim had held the pocketbook at one point during the evening, defendant suspected she had stolen the money. After leaving the restaurant, defendant confronted the victim with a gun in the front seat of the victim's car. Other than defendant and the victim, who was behind the wheel, there was no one else in the car. According to the victim, defendant cocked the gun as she approached her car. Once in the car, defendant demanded to search her handbag, she refused, and she was shot while they struggled. Although the victim testified that she did not touch the gun with which she was shot, a police officer testified that the victim told him that the gun at issue was “a little bit heavier” than a gun he showed her for comparison purposes. Defendant did not testify at trial.
After the People rested, defense counsel sought a ruling as to whether it would be permissible to argue during summation that there was a struggle for the gun before the gun went off. The court asked defense counsel to address the People's argument that “there is no evidence of any struggle over a gun.” Counsel responded, “it is not an unreasonable inference during such an altercation in the car with a gun loaded that at some point she attempted ... to pull the gun away.” Supreme Court concluded that counsel would not be permitted to argue on summation that there was a struggle over the gun because there was “no evidence of that.” The court only allowed counsel to argue on summation that there was a struggle over the bag and the gun went off accidentally.
Under the Sixth Amendment, a defendant in a criminal prosecution has the right to have the assistance of counsel for his defense ( see Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 [1938] ). This right was deemed necessary to ensure the fundamental human rights of life and liberty ( id.), and made obligatory on the states by the Fourteenth Amendment ( see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963] ).1 “[T]he right to the assistance of
[945 N.E.2d 481 , 920 N.Y.S.2d 288]
counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments” ( Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 45 L.Ed.2d 593 [1975] ). In short, this right ensures that criminal defendants have a full and fair opportunity to participate in the adversary factfinding process ( id. at 858, 95 S.Ct. 2550).
“[C]losing argument for the defense is a basic element of the adversary factfinding process in a criminal trial” ( id. at 858, 95 S.Ct. 2550), 2 and the “last ... chance to persuade the trier of fact that there may be a reasonable doubt of the defendant's guilt” ( id. at 862, 95 S.Ct. 2550). This Court wrote:
( Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 102–103, 26 N.E. 1048 [1891] ).3
That said, ( People v. Ashwal, 39 N.Y.2d 105, 109, 347 N.E.2d 564 [1976] ). For example, because juries must decide issues on the evidence, counsel, in summing up a case, is permitted to make any summation argument “within the four corners of the evidence” ( Williams, 126 N.Y. at 103, 26 N.E. 1048). In addition, counsel must avoid making comments which have no bearing on any legitimate issue in the case ( see Ashwal, 39 N.Y.2d at 109, 383 N.Y.S.2d 204, 347 N.E.2d 564). “Thus [counsel] may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence” ( id. at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 [citations omitted] ).
Finally, trial judges have great latitude in controlling the duration and limiting the scope of closing summations ( see Herring, 422 U.S. at 862, 95 S.Ct. 2550). For example
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