People v. Whalen

Decision Date16 June 1983
Citation59 N.Y.2d 273,464 N.Y.S.2d 454,451 N.E.2d 212
Parties, 451 N.E.2d 212 The PEOPLE of the State of New York, Respondent, v. John A. WHALEN, Appellant.
CourtNew York Court of Appeals Court of Appeals
E. Stewart Jones, Jr., Troy, and Robert M. Cohen, Ballston Lake, for appellant

COOKE, Chief Judge.

At about 10:00 p.m. on July 4, 1979, Deborah C. was walking to her work at Cohoes Memorial Hospital. A man passed her going in the other direction. He turned, came up behind her, covered her eyes and mouth, and told her not to scream. Deborah was pushed down a slight embankment into some bushes and raped. After the attacker left, Deborah put her clothes back on and ran to the hospital's emergency room.

While receiving treatment, the victim described her attacker as having "long blond hair." When an officer arrived to take a report, Deborah elaborated, stating that the assailant had shoulder-length blond hair, weighed about 150-160 pounds, and was 5 feet 8 inches to 5 feet 9 inches tall. She repeated her description once more 16 hours after the attack.

At trial, in December, 1980, defendant proceeded on a "mistaken identification" defense, and sought to establish an alibi. To controvert the victim's identification, he presented evidence that his hair was red; that, on the day of the attack, it could not have been the length claimed by the victim; and that he was six feet tall. Defendant's alibi, corroborated by his wife, was that he was at home, ill, when the rape occurred. This evidence conformed to a notice of alibi served by defendant more than eight months before the trial.

Defendant's wife testified on his behalf. She was cross-examined about her statements made to the police on October 5, 1979, when she said that defendant had been at a party the night of the rape and that he could prove it by a receipt for a keg of beer that he had purchased. The prosecutor asked Mrs. Whalen why she had not come forward before trial with her information that defendant actually was at home that night. An examination outside the jury's presence revealed that defendant's attorney had instructed Mrs. Whalen not to speak to the police. The Judge instructed the jury that a citizen has no civic or moral duty to contact law enforcement officials with exculpatory information. When the Assistant District Attorney resumed his cross-examination, he abandoned his line of questioning as to Mrs. Whalen's failure to contact the authorities. On redirect, defense counsel elicited the fact of the lawyer's advice not to speak with the police.

During summation, the prosecutor repeatedly sought to color defendant's alibi as a recent fabrication. In the course of argument, the following exchange occurred:

"Prosecutor: The first we hear of the defendant being home that night is today in court. But she was so positive.

"Defense Counsel: I object to that misstatement. Judge, that's a boldfaced misstatement.

"The Court: Just a moment.

"Defense Counsel: Long ago the District Attorney was put on notice.

"Prosecutor: Untrue, your Honor."

Defendant unsuccessfully moved for a mistrial, partly on the basis of this exchange.

At trial, defendant requested an expansive charge on identification testimony that would emphasize its unreliability and the close scrutiny that should be given to such evidence. The Trial Judge declined to grant the request, instead delivering a minimal instruction that the prosecutor had the burden of proving identification beyond a reasonable doubt. Defendant also requested an instruction that the prosecutor had the burden of disproving an alibi beyond a reasonable doubt. The court acceded to this, but, in delivering the charge, declared, "If the evidence as to the alibi, if believed by you, when taken into consideration with all the other evidence raises a reasonable doubt as to the defendant's guilt, he is entitled to an acquittal" (emphasis added).

Defendant was convicted of rape in the first degree. The Appellate Division, 88 A.D.2d 1005, 451 N.Y.S.2d 895, affirmed, and leave to appeal was granted by a Judge of this court. We now reverse.

Defendant challenges the jury charge on two grounds. First, he argues that the court's refusal to give the expansive identification instruction was error. Second, defendant asserts that, as given, the charge on alibi improperly shifted the burden of proof to him.

As noted above, defendant unsuccessfully requested that the jury be instructed "that identification testimony should be received with caution and scrutinized with care." Instead, in response the court charged, "It is the obligation of the People in this case to prove each and every element of each and every crime charged beyond a reasonable doubt, and this includes the identity of the defendant." After the entire charge was given, defendant renewed his request for a more detailed instruction.

The essence of defendant's argument is that identification evidence is always suspect, so that, when a trial involves a close question of identity, the jury should receive an instruction emphasizing the scrutiny to be given to such evidence. The potential for inaccuracy in visual identification evidence is well known to the legal community (see, e.g., McGowan, Constitutional Interpretation and Criminal Identification, 12 Wm. & Mary L.Rev. 235; Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969), and has been recognized by the Supreme Court (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149).

Although aware of the problem raised by defendant, this court does not find legal error in the minimal charge that was technically correct. A Judge who gives a general instruction on weighing witnesses' credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law. No cognizable prejudice accrues to any party.

Although no error occurred, this court considers it advisable to comment that the better practice is to grant a defendant's request and give the expanded charge. Mistaken identity will often be intertwined with an alibi. The latter also may be...

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